Scalia’s Morality

As has been widely reported, Justice Antonin Scalia made a controversial–albeit illuminating–remark on Monday, during a speech at Princeton. In response to a student who asked him about previous anti-gay writings in which he had compared laws criminalizing homosexuality to those banning bestiality and murder, Scalia defended the comparison, saying that–while he wasn’t equating homosexuality with murder–it illustrated his belief that legislative bodies should be able to enact laws against “immoral” behaviors.

I am deathly tired of legislators and judges who define “morality” exclusively by what happens below the waist, and who confuse “tradition” with a moral compass.

Throughout his career, Scalia has devoted his undeniable brilliance not to an exploration of the human condition, the nature of morality or even the role of law in society, but rather to the creation of an elaborate intellectual defense of his prejudices.

Anyone who would equate sexual orientation–an identity–with murder–a behavior–fails Classification 101. It can never be immoral simply to be something: gay, female, black, whatever. Morality by definition is right behavior. And most moral philosophers begin that examination by asking a fairly simple question: does this behavior harm another?

Now, I know there are endless (legitimate) arguments about the nature of “harm,” but–Micah Clark and Eric Miller to the contrary–the mere fact that gay people exist and may be granted equal civil rights cannot be rationally considered harmful.

How moral we are depends upon how we treat each other. Sexual molestation is wrong whether the molester is gay or straight. Theft is wrong irrespective of the color, religion or sexual orientation of the thief.

And as many others have noted, tradition is hardly a reliable guide to moral behavior. Quite the opposite, really. War has been a human tradition. Slavery was traditional for generations. The submission of women lasted eons. The loss of these “traditions” is hardly a victory for immorality–although for old white guys like Scalia, I’m sure the loss of privileged status is cause for regret.

The job of legislatures is to pass measures needed by governing bodies–rules for civic order, taxation, service delivery, and the myriad other matters that may properly be decided communally. Allowing legislators to decide whose lives are moral is not only improper, not only an abuse of power, it is itself immoral.


  1. But Sheila, anyone who presumes to be a judge is immoral by definition. Of course they must spend their lives defending their position. As a member of the hoi polloi and an inhabitant of a trailer park I have no voice; here at the bottom of the aquarium we simple organisms are merely trying to enjoy what little time we have on this blue marble while the intelligentsia and the body politic and their servants in the military and police force decide what we will eat and where we will sleep; I sleep in a mobile home and since having withdrawn from the race I sleep just fine.

    The bigotry and injustice and the war-like behavior of our kind will result in the meek inheriting the earth, indeed. What’s left of it.


  2. While I share your views on homosexuality and I disagree with Scalia, it seems to me that “morality’ is a social construct that evolves in tradition. Moral and immoral behavior are defined by the controlling faction of a society. Over time the definitions evolve in society. At each stage of the evolution the disagreeing factions each claim that their definition is the universal standard that was created with the universe (evolutional irony noted). All the more reason to approach legislation of ANY bit of morality with fear and trembling.

  3. I am absolutely no defender of Anton Scalia, no way-now how. His public relations book tour exceeds the bounds of judicial propriety, making the Chief Justice nervous, I’ve been told….and Judge Posner, certainly no liberal, has made some extremely cogent points in criticising Scalia’s inconsistencies in defending his “original understanding” method of constitutional interpretation.

    That having been said, what Scalia said and Princeton and elsewhere is consistent with what he said in Lawrence vs. Texas, the case with overturned private consensual sodomy laws. “Morality” is a term whose meaning seems a bit elusive, having religious underpinnings for some. The question generally centers around the line that should be drawn between that conduct deemed “immoral” or “sinful” in one sphere, yet considered off-limits to government prohibition/regulation. what is the level of state interest (compelling or merely rational) necessary to permit the state to enter the picture? I wholly disagreee with where Scalia would draw that line, but I think he was making the point that there is such a line-drawing function, and the argument is what relative roles the legislative and judicial functions have in that process.

  4. Don – if Scalia had phrased it like you did, there would be no controversy. He didn’t and that is the problem. His choice of analogies was less an exercise in explanation than flame-throwing polemic.

  5. The difficulty with writing about “Marriage” as a legal concern is that it has had a long history of being associated with the additional phrase “in the eyes of God.” Those who thought they knew what actually was acceptable to God defined it in accordance with their religious views — between a man and his women (Old Testament), one man and one woman of the same Christian denomination (New Testament), one man and one woman at a time as long as they were the same color, etc. Until the time of Napoleon, for instance, French Jewish couples were not regarded by the established church, and thus by the state, as married. The 18th century largely regarded it as a private contract between two people, and became interested primarily in the equal rights of each partner. They must be of age to understand, and polygamy, underage marriage, and the inability of the partners to share power equally were disallowed. In separating out religion from state, the US Constitution assured that the only interest government had in marriage was as a valid contract. I’m surprised Scalia, and so many Americans, can’t understand this.

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