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Justice Scalia Is Not Addicted To 'Abstract Moralizing'


But the conservative Republican Justice is still hung up on 'consensual sodomy.'

It doesn't take a Supreme Court seer to know that Justice Antonin Scalia is going to rule against equality in the two marriage cases expected to be decided this week. Scalia, a conservative Republican appointed to the bench by Ronald Reagan and a Tea Party favorite, has never been a fan of the gays.

In a 1996 dissent for Romer v. Evans, a case striking down Colorado's ban on LGBT non-discrimination laws, Scalia compared gays and lesbians to murderers and animal torturers. "It is our moral heritage that one should not hate any human being or class of human beings. But 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," he said at the time.

In 2003, during Lawrence v. Texas, the decision that found anti-gay sodomy laws unconstitutional, Scalia ruled against revoking the laws because it would be a "disruption of the current social order" that ignored "majoritarian sexual morality." And last year, asked about his offensive comparisons of gays to murderers and, in a separate comment, homosexuality with bestiality, Scalia defended himself, saying, "I don't think [such comparisons are] necessary, but I think it's effective. It's a form of argument that I thought you would have known, which is called 'reduction to the absurd." He continued, "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don't apologize for the things I raise. ... I'm surprised you aren't persuaded."

But even if all that junk hadn't happened, Scalia pretty much tipped his hand during a speech before the North Carolina Bar Association on Friday. "In the United States, and indeed throughout the world, belief in the expert has been replaced by the judge moralist. We have become addicted to abstract moralizing," he said, according to The Asheville Citizen-Times.

He went on, using an example particularly crude when read in relation to his storied position on the Highest Court in the land: "I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged. Rather, I am questioning the propriety, the sanity of having a value-laden decision such as this made for the entire society by unelected judges."

To Scalia, ruling in favor of marriage equality is simply another misuse of the "constitution as a living document" argument that says our nation's founding document, written over 200 years ago, should adapt to changing times. Scalia clearly disagrees, and as by way of example, he cited 2003's Lawrence v. Texas, which he said altered the legal landscape all for the sake of "consensual sodomy." "About nine terms ago, we held laws against private consensual sodomy, laws that existed in perfect conformity with the Constitution for over 200 years, to be impermissible."

None of this would be surprising if it weren't Scalia himself who suggested the Supreme Court hear marriage equality cases many wanted to leave to the states. Did Scalia agree to entertain equality-minded cases simply because he wants the pleasure of knocking them down?

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Andrew Belonsky