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Justice Antonin Scalia Says Judges Shouldn't Decide if Being Gay is Morally Acceptable

Supreme Court Justice Antonin Scalia told the North Carolina Bar Association in a speech on Friday that constitutional law is increasingly threatened by a belief in the "judge moralist" and that it is society's, and not the court's job to decide what is morally acceptable, the Charlotte Observer reports:


Scalia said that approach presents two problems: Judges are not moral experts, and many of the moral issues now coming before the courts have no “scientifically demonstrable right answer.”

Scalia, known for his provocative comments and writings since being appointed in 1986, is barred from publicly discussing pending cases. But during his half-hour speech at the Grove Park Inn on Friday, the 77-year-old frequently listed homosexuality among the issues that should be decided by the public and not unelected judges.

His comments during the March oral arguments for the same-sex marriage cases followed a similar bent. “When did it become unconstitutional to exclude homosexual couples from marriage?” he asked.

Raleigh attorney John Sarratt said he expects the thoughts Scalia expressed Friday to be reflected in the judge’s upcoming opinion on gay marriage – that the courts should leave the existing laws alone.

Scalia was asked if he would have adopted the same approach to Brown v. Board of Education:

Scalia said he would have voted with the majority on the case to create more educational opportunities for blacks. He added, however, that “a good result” doesn’t make for good law. Had the courts not interceded, he said, state leaders would have eventually removed the racial barriers.

N.C. lawyers listen as Justice Scalia bemoans ‘moral arbiter’ on eve of gay marriage ruling [charlotte observer]

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  1. When? Whenever a law is based on intolerance, discrimination and bigotry, it is unconstitutional. Especially when bigotry disguises itself as morality.

    I learned that in the 8th grade.

    Posted by: Teehee | Jun 22, 2013 10:33:38 AM

  2. Dissenting in Romer v. Evans, Scalia called Amendment 2 "a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws." Dissenting in Lawrence v. Texas, he said "Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct." (Note his charming use of the word "homosexual 3x in 1 sentence.) His world view is that anti-gay laws based on morality concerns are constitutional. Funny, there was a time (1890's) when anti-Italian laws were based on so-called morality concerns. Scalia is the ultimate judicial activist/hypocrite. Worse than McReynolds, maybe worse than Taney.

    Posted by: John | Jun 22, 2013 10:33:53 AM

  3. No, the question is "when did it become unconstitutional to INCLUDE homosexual couples in the rites and priveledges of marriage?'

    Posted by: UFFDA | Jun 22, 2013 10:36:56 AM

  4. “When did it become unconstitutional to exclude homosexual couples from marriage?” he asked.

    Well, Tony, if it's unconstitutional then it has ALWAYS BEEN unconstitutional --- it just wasn't recognized as such. Just as sodomy laws were always unconstitutional and Bowers vs. Hardwick was an unconstitutional decision that was corrected in Lawrence vs. Texas.

    You'd think a Supreme Court Justice would know that the Constitution doesn't change, and that judicial errors (eg: Dred Scott; Bowers) are corrected over time. Sometimes judges and justices retire and that happens; sometimes they die and change occurs. Maybe Scalia's head will explode (which means mute lap dog Justice Thomas would also explode his head in dutiful obedience), and the President can improve the court.

    That's the original intent of the founding fathers.

    Posted by: Anastasia Beaverhausen | Jun 22, 2013 10:42:27 AM

  5. * except when amended, and there's not going to be an anti-gay amendment so get over it, Scalia.

    Posted by: Anastasia Beaverhausen | Jun 22, 2013 10:44:42 AM

  6. Another Fat Tony that I wish would drop dead of a heart attack.

    Posted by: Dearcomrade | Jun 22, 2013 11:02:48 AM

  7. Justice Scalia? Just so you know, my "homosexuality", my "gayness", is my humanity. It is immoral to deny me my civil rights based on my humanity, which is natural, unchangeable and immutable. I, as a citizen of this country, am born to the same rights and privileges as you. Therefore, a favorable ruling striking down discriminatory laws that prevent me from exercising what should be my Constitutional right to marry another consenting adult the same sex as I becomes a moral issue simply because those discriminatory laws were legislated in the first place.

    Posted by: jamal49 | Jun 22, 2013 11:03:59 AM

  8. We have to stop putting people in powerful positions who believe in sky gods. It really must stop. Organized religion is a scourge upon humanity.

    Scalia should be removed from the court. He is CRAZY.

    Posted by: ArkArk | Jun 22, 2013 11:05:01 AM

  9. Seems bad form for him to be discussing this right now. Once again, Scalia proves himself to be ridiculously biased where Teh Ghey is concerned. He should've recused himself from Windsor and Prop 8.

    Posted by: jim | Jun 22, 2013 11:09:05 AM

  10. I can't wait for the day this dinosaur is off the Supreme Court. Can we take a collection to sign him up for the pasta & cheese of the month club - get those arteries clogged up as quickly as possible? Maybe hire a PI to get some photos of him in a whorehouse?

    I hope his reference to "judge moralist" is directed at five of his colleagues.

    Posted by: Eddie | Jun 22, 2013 11:23:50 AM

  11. teehee - The only word you used which matters is "discrimination".

    Posted by: David Hearne | Jun 22, 2013 11:24:06 AM

  12. John - He used "homosexual" because that is the clinical term. There is nothing wrong with proceeding with caution in the Supreme Court. There are indeed slippery slopes, and what they say and do does matter. There is a difference between constitutional law and judicial activism. It is the place of the court to tell the government it will not discriminate against gay people. It is not the place of the court to tell _citizens_ that they must accept or associate with a group of people they choose not to accept or associate with.

    Posted by: David Hearne | Jun 22, 2013 11:29:38 AM

  13. Eddie - Remember this: all justices want to be remembered as great legal minds. Some female Jewish liberal voting for gay marriage won't go down in history as a great legal mind for gay rights because there is nothing surprising there. If however, Scalia makes remarks which come off as anti-gay and then votes to strike down DOMA, he's a "genius" and an "impartial jurist".

    Posted by: David Hearne | Jun 22, 2013 11:32:33 AM

  14. “When did it become unconstitutional to exclude homosexual couples from marriage?”

    if you look at this statement alone & dissect it, in a way he is implying that same sex marriage IS constitutional, since he is saying that it is not 'unconstitutional'.

    as far as his statement that judges should decide moral issues, i would agree that at least HE shouldn't be deciding; he is reactionary catholic probably with Opus Dei connections. one son is a priest who supports the cult.

    Posted by: mike/ | Jun 22, 2013 11:33:19 AM

  15. That right there is why he should be forced to recuse himself.

    The Supreme Court already ruled that being gay is morally acceptable in two separate cases. Get over it.

    Posted by: RMc | Jun 22, 2013 11:52:55 AM

  16. He is right that judges shouldn't be in the business of deciding morality. Judges have no business telling people they should go to church or tithe. Or say mandatory prayers. They have no business deciding the "constitutionalty" of euthanasia. Democracies work best when poeple decide what is morally right and wrong. At best, morality shouldn't be decided at all through legislation unless someone is being hurt (children, spouses).

    Our problem is we're battling against more than three hundred years of accumulated legislation in this country. The laws themselves have worked to inform people's morality about homosexuality. This and that damn Book of Leviticus. Another problem is people don't want to wait for the public to "catch up" to our enlightened state. But it is happening. The public is finally changing.

    Posted by: will | Jun 22, 2013 11:57:52 AM

  17. For a brief moment before reading the details,, I thought Scalia was having a rare moment of reason.
    Indeed, it is not the job of a judge, or a jury, or a legislator, to decide whether homosexuality is morally acceptable. It is also not their job to decide whether skipping a Wednesday night church service or kissing on the second date or eating dinner in front of the TV is morally acceptable.
    Their job is to give equal protection to all citizens and NOT to play the role of the prudish nanny who judges everyone's personal decisions such as what sex and race someone chooses to marry or not marry.

    Posted by: GregV | Jun 22, 2013 11:59:02 AM

  18. If unelected judges should not decide morality, it does not follow that legislatures or the public should either. If anything, the lack of judicial review argues for the conclusion that the law has no legitimate interest in enforcing private prejudices apart from those which inflict demonstratable harm e.g. murder. That is one of the arguments our side has been making for years, that government at all levels should stop throwing the weight of the law behind homophobia.

    This clown is nowhere near being a "legal genius" of the right wing.

    Posted by: BZ | Jun 22, 2013 12:02:28 PM

  19. Laws against same-sex marriage "became" unconstitutional the first time they were passed. But no one pointed out that they violated the Equal Protection clause of the 14th Amendment. If he wants an exact date, he can look it up.
    So now it's up to our Supreme Court to point this out

    Posted by: David | Jun 22, 2013 12:20:00 PM

  20. I had a completely different reaction to his comments (maybe wrong) than most of those posted here. I took him to be making a statement that even if a judge voted to allow same sex marriage because he felt it was legally correct that that decision didn't necessarily indicate that judge believes same sex marriage is right or good. The public decides morality (of which 57% supports same sex marriage), not judges.

    I thought he was perhaps telling the right that just because he might vote to end the federal preclusion of ssm doesn't mean he approves of it.

    After reading in these comments about his previous dissentions that now seems less likely to me. But I'm going to hope anyway.

    Posted by: Brian | Jun 22, 2013 12:26:53 PM

  21. Judges aren't moral experts but the ignorant masses are? Subjecting minority rights to majority whims results in pure popularity contests, which we're starting to win, but it's hardly how the 2 marriage cases before the Supreme Court should be decided. The Constitution is on our side, not that some of the current Justices will necessarily see it that way.

    The DOMA case is about couples who are already legally married. The morality question has been settled in these 12 states. Prop 8 raises broader questions-- it's no secret how Scalia would like to answer those, since he's made his personal dislike known for years.

    Posted by: Ernie | Jun 22, 2013 12:29:55 PM

  22. If ever there were a case for impeachment, then Scalia fits the bills. He seems to have no sense of impartiality, or equality under the law.

    Similarly, Thomas should be removed because of his financial links to various political and business groups.

    This current US Supreme Court has become a clown circus of justices (or bigots and thieves).

    Posted by: Continuum | Jun 22, 2013 12:34:08 PM

  23. @David Hearne
    John's aside about Scalia using the word homosexual 3 times wasn't the point of his post.

    In Scalia's own words 'by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct'

    His anti gay animus is documented history and yet here he is warning against a 'judge moralist'. They're only a judge moralist when they disagree with his bigoted opinion.

    Regardless of how he votes on Prop 8 his past offenses are inexcusable. Genius and Scalia ... you make me laugh.

    Posted by: JONES | Jun 22, 2013 12:34:43 PM

  24. It is not the courts' job to uphold the precise will of the majority of the people. That's what elections are for. The job of the courts is to uphold the Constitution, regardless of whether the necessary decisions fall in line with the will of the majority. It is up to the judges to determine, without bias from the rest of the population, what constitutes equality under the law, or equal protection. It seems more than obvious to me that to exclude Gays from the institution of marriage is a clear violation of any notion of "equality," and I have yet to see anyone dispute that on a rational level. Therefore, it is not "activism" on the part of judges to declare that Gay and Straight couples should be treated equally under the law, rather it is an example of judges performing their rightful duty.

    Posted by: Chuck Anziulewicz | Jun 22, 2013 12:34:47 PM

  25. This sounds like SOUR GRAPES. If so, it may bode well for one or both decisions to be handed-down next week.

    Posted by: Jerry | Jun 22, 2013 12:35:06 PM

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