In a 1996 Supreme Court decision protecting gays and lesbians from discrimination, Justice Anthony M. Kennedy wrote that Colorado voters had evidenced an unconstitutional "animus" toward homosexuality. Justice Antonin Scalia dissented, huffing: "I had thought that one could consider certain conduct reprehensible murder, for example, or polygamy, or cruelty to animals and could exhibit even 'animus' toward such conduct."
Seven years later, when the court overturned a Texas law that criminalized same-sex sodomy, Scalia again dissented, writing: "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable' the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity."
This was too much for Duncan Hosie, a gay freshman at Princeton University who took advantage of a campus visit by Scalia last week to ask the justice if such odious comparisons were necessary to make a legal point. Scalia was unrepentant. "If we cannot have moral feelings against homosexuality, can we have it against murder?" he asked. The justice denied that he was equating homosexual conduct with bestiality or murder, insisting that he was engaging in a form of argument called "reduction to the absurd." "It's a form of argument that I thought you would have known," he admonished the freshman.
Scalia's basic argument can be stated this way: If laws against homosexual conduct are unconstitutional because they are rooted in moral disapproval, then by logical extension moral disapproval is an inadequate basis for any law, even one forbidding something as heinous as murder. Reduced to the absurd, the argument that moral disapproval is not sufficient grounds for a law means that there can't be laws against homicide. It's a logical, if abstract and not terribly helpful, line of inquiry.
But the reality and perhaps this is what so dismayed Hosie is that the Scalia opinions in question bristle with hostility toward homosexuality and homosexuals. No, Scalia didn't say in his 1996 opinion that "homosexual conduct" was "reprehensible," but his sympathy for those who hold that belief was palpable. (In the same opinion, he referred to "the disproportionate political power of homosexuals.") In his dissent in the 2003 sodomy case, he accused the majority of embracing "the so-called homosexual agenda."
Hosie wondered why Scalia couldn't make his points without offensive implications about gays and the lives they live. But what if those slurs were the point? That's a depressing possibility to contemplate as Scalia and his colleagues prepare to rule on cases involving same-sex marriage.