Associated Press
Last week, the Supreme Court set the stage for a historic moment on American civil rights, agreeing to hear challenges to both the Defense of Marriage Act and to California's Prop. 8. It will be the justices' most important foray into the debate over marriage equality, and has the potential to overturn a series of discriminatory laws.
But while we wait for the judicial process to unfold, it appears one justice's vote is already pretty obvious.
Supreme Court Justice Antonin Scalia spoke at Princeton last night, and a student asked why the far-right jurist equates laws banning sodomy with those barring bestiality and murder.
"I don't think it's necessary, but I think it's effective," Scalia said, adding that legislative bodies can ban what they believe to be immoral. [...]
"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" Scalia told Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"
The justice added that he wasn't equating sodomy with murder.
No, of course not. What could possibly give people that idea?
It's too soon to say how the justices will rule on the gay-rights cases, but I'm going to go out on a limb and say Scalia's vote is not in doubt.
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This is why, when I heard the Court was going to review the marriage equality cases, I got a little shiver of fear down my spine. Everyone else seems to think this is such a great opportunity to advance gay rights, but I can't help but think they're going to get shot down in flames.
Bingo. If we could've waited a bit, until some of the nuttier, meaner-spirited right-wingers had retired or died, we might've won this Supreme Court fight. We're going to lose--lose badly--with the Court made up of the Justices it has now.
I felt the same way you did, Freddie. They should've waited until Obama appointed another mbr to the court. The ones who are there are unpredictable and vote like old, white, southern men. Even today I'd bet they'd vote against mixed marriage and consider that under the beastiality laws as well. How many hetero couples could be put in prison these by anti-sodomy laws? So many more than in the past when they were first written.
Exactly!
All they had to do was nothing, and Prop Hate and other such crap would end.
@ post 1.1:
With the Courts Taxpayer Funded Healthcare, waiting for one of the "nuttier, meaner-spirited right-wingers" to retire or die could be one hell of a wait.
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I'm trying to engage his argument in a different way, as a thought experiment.
Is Scalia using the idea of Reductio ad absurdum correctly? The silly side of the rhetorical technique is REDUCING it to a Straw Man Fallacy. Set up an easy to topple opponent and declare yourself the victor in the argument.
Things slip into Straw Man when the two things being compared are not actually comparable.
I've used Reductio ad absurdum in arguments before myself. I like to. It is fun, because it shifts the perspective and makes the people in the discussion consider the issue with a different lens, perhaps even from a view that is radically altered. In that respect, it is like when you look at a painting, and then step back or off to the side, to force yourself to see it from a different perspective.
So this is ethics, Scalia's drawn analogy between prohibitions against murder and prohibitions against homosexuality. Ethics is fun! I like thinking about ethics and meta-ethics. We choose to behave in a certain way, and we have reasons and reasoning behind why we made those ethical choices, and systemic reasoning BEHIND the reasons (meta-ethics, such as egoism, altruism, utilitarianism, etc.).
And by claiming a Reductio ad absurdum position equating the ethical prohibition against murder with an ethical prohibition against homosexuality, Scalia isn't really being that sophisticated. It seems that the only point his analogy is making is that we actively allow our laws to enforce ethical prohibitions that go against the moral codes of many different meta-ethical systems.
Wow, news flash. Laws are used to reinforce ethics. Big whoop. Also, laws which presume ethical unanimity (the ethics of a cannibalistic society are not taken into account in our laws against murder, for instance. That is a form of multiculturalism which we do not honor).
And it also is not entirely true. The prohibition against murder enshrined in our law is not simply an ethical maxim valuing human life converted into a legal code. I mean, yes, it is that, but that is probably NOT the reason for the law against murder. Perhaps other laws can be traced back to solely to ethics and meta-ethics, but there are other reasons for laws against murder that are not directly linked to ethics.
Laws against murder maintain public order and a larger civil society. They minimize public and individual harm (granted, that sounds a bit utilitarian). They protect property as well as life. They are an extension of the laws against assault and battery, and a legal system that protects an individual or group from opportunistic forms of civil attacks (such as fraud, theft, embezzlement).
Laws against homosexuality don't cross into the land of behavior that "causes harm" to another in the same way that murder does. Like more innocuous drug use or not wearing a motorcycle helmet, if there is a presumed "harm" in the way some ethical systems see homosexuality, unless it is inflicted on another against that person's will (rape, sexual assault), the "harm" if it is a harm is only inflicted on the one who chooses to participate in the behavior.
So, to my mind, invoking murder as an ethical prohibition on par with the ethical prohibition is a Straw Man, a false analogy drawn in the name of Reductio ad absurdum on the same level as Hitler is often invoked in online discussions (Godwin's Law), like the Mark of the Beast, the horror of horrors. "We have laws against bad things we don't like, so why can't we have laws against ANY bad thing we don't like?"
As if ethics were SO uniformly stupid. It isn't. Even a cursory analysis shows it isn't.
Yeah that was my initial reaction too Chris. It seems to me Scalia is referring to the argument he gave instead of the argument he was responding to. The argument he gave is a reduction to the absurd.
Eloquently put!
Thank you, Cartoonthenews!
Although on rereading it, I see I left out some words! Typing too fast. I meant to say:
Thanks for clarifying, Chris Boese. As I was reading Scalia's statement(s), it seemed to me he was mucking up the use of the reductio ad absurdum. As an aside, I couldn't help but twinge at his use of the term "moral feelings" as a basis for determining the constitutionality of discriminatory statutes. From what I know of equal protection cases, "moral feelings" is not part of the analysis. Watch out............
Scalia is nothing but an old curmudgeon. It wont be long before he's gone. Maybe not during this presidential term, but almost certainly the next, and odds are there will be another democrat in the WH in 2016. I wonder how many justices Obama could possibly replace in this term?
At any rate, there is a good chance the scales will be tipped away from a conservative majority and that will open the door to hopefully a lot of progressive changes, overturning Citizen's United being the first of course.
I don't think that the Supreme Court Justices should be conservative leaning or liberal leaning. They need to follow the Constitutional framework above everything else. Our nation seems to be veering from that more and more. Our founders gave us an exceptional framework from which to work and any justice who can't work within those boundaries should not be chosen. Constitutionalists are where it's at. The scales shouldn't tip either way.
@jes33:
And in a perfect world, that would be how it would operate. The justices would put aside their own personal politics and judge not on whether the cases pass their own personal convictions, but judge whether or not the cases represent a violation of our Constitutional rights.
But it doesn't happen that way, and the justices vote on issues according to their own politics and their own party lines. Conservative justices live in the old and the traditional and vote for the corporation, liberal justices live in the now and the progressive and vote for the people.
I agree that ideally, there shouldn't be any sort of bias or subjectivity through an ideological lens on the court. However, strict Constitutionalism is too rigid and binding. The Founders intentionally created the Constitution as a living breathing document of course, open to interpretation as the ages and societal mores change. This is the beauty of it, and what has allowed our society to progress.
As a matter of fact, I'd argue that most of the positive changes that occurred during the 19th and 20th centuries are a direct result of Supreme Court rulings.
It would be great to have Obama replace Scalia, i.e. appointed to the Supreme Court by the next president.
If "follow[ing] the Constitutional framework" were a self-evident proposition, there'd be very little need for a Constitutional court such as the SCOTUS. What one sees in the Constitution seems to me always colored by one's politics. What does religious freedom mean? How does the commerce clause apply to a particular law? What does "we the people" mean, in fact? Does it mean "everyone who is a citizen except for women"? Seems it did for a long while, even after women got the right to vote. Now the question is whether it means "everyone who is a citizen except for homosexuals, who don't have the right to marry" and so lose out on a host of fundamental rights. I think such exclusion can be justified only if one conceives of same-sex relations as somehow criminal--so the reductio ad absurdum seems, from the Scalia point of view, not absurd at all; from my perspective, deeply absurd.
I don't want to write him off just yet. As odd as that may sound he is one of "Dead eye" Dick Cheneys shooting buddies and that might have some influence here. I do think Justice Scalia is going to have to make a decision about how he is going to be seen by history and whether he wants to be remembered for something that is more like Brown vs Board of education or for Dread Scott.
It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" Scalia told Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"
Where to start?
I don't believe that the Constitution addresses any moral issues, so I am not sure why Scalia feels that addressing the morality of a thing is in his purview. It's not.
We can, in fact have moral feeling about murder, but those feelings are separate and distict from, like, laws against murder. One would think that a SCOTUS jurist could tell the difference.
Exactly, personal morality is a poor basis for faithful representation and guardianship of public good. The public is diverse and needs laws that limit license/encroachment on the well-being of others but maximize expression of the basic constitutional rights-- freedom of speech, worship, etc., basically freedom of expression which does not harm others physically.
If expression or agreements offend "morally", that's outside the basic purview of law in most cases, unless real harm can be proven. No harm can be proven with gay marriage, and in fact, much social and personal benefit can be easily demonstrated.
This is the basic poison pill in imperialist conservative thinking (of which Scalia is a staunch advocate), "I deny your constitutional rights because it offends my moral belief."
Our whole Constitution is built on exactly the opposite proposition, that individual tyranny of belief and power shall NOT hold sway over the public well-being. That was the whole reason for the Revolutionary War and the Constitution in the first place.
Don't tell that to The-Pope-Is-God Scalia. He likes tyranny, and he thinks that it is his job to impose tyranny as a "strict" original intention Constitutionalist... NOT!
It's just like biblical fundamentalists who call themselves Christian. Somehow they have turned themselves into the greatest enemies of the actual words, teachings, and examples of Jesus (in the name of Jesus, no less).
Scalia does the same with the Constitution.
Anyone who compares a non-consensual act to a consensual act is grasping at straws. Of course murder is illegal because it obviously infringes on the rights of the person who is dead. Its the same reason rape is illegal. But consensual sexual acts are between people in private, and you can't just ban something because it personally offends you.
That said, Scalia is maybe the most biased person on the court.
That's the entire problem with the slippery slope arguments related to gay marriage. Immediately they're related to bestiality and pedophilia. "If you allow two men to get married, then we'll have to let a man and dog, or a man and a boy get married!"
It entirely ignores the argument that a marriage between two men is a consensual agreement between two persons who can commit to the agreement. A dog cannot consent, nor can a child. It's vulgar, mean-spirited, and wrong to connect the two thoughts.
Alas Katherine, that is how you keep fear alive in the yokels.. Scalia is a "dick" ladies and gentlemen, that is the most you can take from our little visit.
I kind of suspect that the reason wingers 'slip' so quickly and easily from homosexuality to bestiality and incest is that those are the places they really want to be.
And, no, I'm not joking.
Also, I'm think of that Republican whose name I've forgotten who equated rape with the out-of-wedlock pregnancy of his daughter on the grounds that he was opposed to both. Is it possible that Scalia conflates homosexuality and murder for essentially the same reason? That he views homosexuality as non-consensual because he doesn't consent to there being any such thing? That would be completely bat-@!$%# crazy, but also simply a Thursday afternoon for Scalia.
In the voice of the late great Graham Chapman - "He's a loony!" -Kevo
"If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?" No one is telling you you CAN'T have moral feelings about issues. But as a SUPREME COURT JUSTICE is it LEGAL? CONSTITUTIONAL? Stop trying to make the Court something it was never INTENDED to be Scalia!
Sometimes I wonder when Justice Scalia will have the over-due epiphany that his narrow view on the world does not reflect American values, and his opinions are more about *him* than they are the rule of law, simple fairness or common decency.
the man is rotten to the core.
he is not "rotten"...he is very catholic (altho, for argument's sake, it's practically the same thing. His religion will always (as he's stated before) play a major role in his decisions.
That's a straw man argument. Yes, he's Catholic, and if people were trying to mandate that the Catholic Church perform same-sex religious marriage as a sacrament, it might matter.
Would he be justified in declaring no Constitutional right for Jews to marry because they don't accept Jesus? Or no Constitutional right for Episcopalians to marry because they are heretics?
If he can't adjudicate secular law, he should resign from the Court. Period.
and he talks of morality as if it could be adjudicated from some court or bench. what about the ethos of love, and about denying the moral due it deserves.
A subtle difference, Judge, you might have missed it. Murder takes the LIFE of another human being and homosexual love doesn't and your "moral feelings" about it really don't matter. If anything, our laws were crafted to protect us from the extreme, petty, small, prejudiced humans among us who would infringe on ALL American's right to "life, liberty and the pursuit of happiness"......because their "moral feelings" were hurt.
And if Justice Scalia can't back away from his own personal feelings then he has no right to be on the bench.
Hi behavior is becoming more outrageous with the passage of time. My guess is hardening of the arteries in the ole cranium. He does his "causes" no favor appearing to be a crass, ignorant curmegeon. He has plenty of company with his fellow Republicans on that score -- mean and ignorant. What a great example for a Supreme Court Justice! Disgrace. Sooner or later he'll be showing up at work without his pants on...
Scalia can get past the first amendment easy; he just said it. But the 14th might call for some contortion.
Murder does harm to another person. Beastiality does harm to an innocent animal. Sodomy (if we call it that) between two consensual people, does not harm anyone. We should consider that act as it equates to the other two? The other two are clearly immoral by the standards of most human beings. The third is immoral by a small percentage of people misinterpreting Biblical passages. I fail to see the correlation. Still, it's Scalia, so... My guess is that he's got some pretty dark secrets in his own life: men in such high positions of power generally do, which I find extremely interesting. See: the history of mankind. This is a very personal matter to him, which I ALSO find very interesting.
Scalia has a tendency to ignore the question at hand. Obamacare? Somehow it's an issue of the government forcing people to eat broccoli. Marriage equality? Somehow it's an issue of murder. It's a clever way of ignoring actual issues which he is unable to twist and contort to fit his preconceived and predetermined conclusions.
He is not trying to equate murder and same sex marriage? Then why bring up murder? For years this guy was for some reason considered conservative but brilliant. I have yet to see any evidence of the latter.
Reduction to the absurd? That's a statment that sums up Scalia's career as the most obstructionist judge ever to sit on the bench.
This from one of the supposedly great legal minds on the court? It's just a bad argument all around and can be taken apart in 30 seconds from several different directions. He seems to like reductio ad absurdams (remember the Affordable Care Act being equated with the government requiring the purchase of broccoli?) but doesn't acknowledge that these go both ways (like the 2nd Amendment allowing private ownership of ballistic missiles). What a dummy.
Republicans -- they believe in Freedom and Liberty!
The intelligence, compassion and commanding prose in the comments here, this morning, make Scalia look like a total idiot. How did he even make it through college, law school and end up on the SC. Booyahh, Rachel's readers taking him to school!
"Your right to swing your fist ends where my nose begins."
Ah, those were the days. So in Scalia's world, my right to love a person ends where his sensibilities begin?
I really think we should stop letting the two parties appoint the justices. instead we should allow them to be elected by popular vote for life. after all they are a branch of government and should be completely separate.
How can you look at the bozo in the House of Representatives or the 8 years of George W. Bush and want to elect Supremes for life? I shudder at the though of a majority bench of Tea Party Supremes. Aren't Scalia, Thomas and Alito bad enough for you?
yes and look at who gets appointed. I'm not talking about them being elected all at the same time like representatives I mean like as they retire or pass away. Judges would be required not to be affiliated with any particular party maybe form thier own party. this way the people get to chose who they want judging them and not the political parties trying to game the system. and because judges are to be impartial private money would have to be kept out of any campaining.
Scott
Judges at the State level are elected. It's Federal judges that are appointed. Remember they have to be approved by the Senate.
We as the GLBT community would have a better chance of winning equal marriage rights at the Federal level if these cases were heard after Pres. Obama appoints new justices to the Supreme Court, instead of now when Justices like Scalia will be casting a vote.
Probably, unless the next justice to retire isn't one of the right-wingers. But it was the Court that chose to take these cases at this time, so it's not as if anyone but they have a say in the timing.
This law will not be a problem for long... the masses need time to understand that individuals have different likes and needs. This does not mean that they will not be productive members of the society that they must work and play in. Leaving their private lives to their whimisies is necessary to continue to move into the future without seeming prejudiced and unable to conduct business as is needed to gain the moentary freedom that one needs in order to share their own personal beliefs. Continue moving forward and your day will come to proclaim what your life is like and how it makes you who you are. The key is to learn from others at all times and choose your battles wisely!
These are the folks who put W in office ... I lost faith in the SC after that
Maybe he thinks he is auditioning for a part on laugh-in. Here comes the judge, here comes the judge.
Shouldn't a judge of Scalia's stature know the difference between Reductio ad absurdum and straw man logical fallacy? Murder is against the law because in infringes another person's right to life. Surely the judge can see that same sex marriage can't possibly do that?