Speaking at Princeton University, a gay student questioned the conservative justice about a 2003 dissenting decision written by Scalia in support of anti-sodomy laws.
The student, Duncan Hosie, who identified as gay, questioned Scalia’s comparison between having a moral objection to sodomy and having a moral objection toward things like bestiality or murder. Scalia defended his comparison as an ‘effective’ form of argument.
“If we cannot have moral feelings against or objections to homosexuality, can we have it against anything?” Scalia asked, explaining his dissent. “It’s a reduction to the absurd … I don’t think it’s necessary but I think it’s effective,” Scalia said, adding dryly, “I’m surprised you weren’t persuaded.”
This exchange could provide future insight on the heels of the announcement that the Supreme Court will hear two cases regarding gay marriage later this year.
The case in question, Lawrence v. Texas, 539 U.S. 558 (2003), is a landmark decision by the United States Supreme Court under which the U.S. Supreme court struck down sodomy law in Texas, and by extension in thirteen other states, by a 6-3 ruling. This case made same-sex sexual activity legal in every U.S. state and territory.
In his dissenting opinion in that case, Scalia wrote that moral objections to sodomy should be considered as valid as moral objections to bestiality and murder:
Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality”. State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed”. SOURCE