What Scalia Really Wants

Oh, Nino Scalia, you rascal.  He has recently come under fire for "compar[ing] sodomy to murder."  As usual, people are missing the subtlety of the original argument (much same way people mischaracterized the politically foolish comments by Republicans that bad things--e.g. rape--are part of God's plan).

In this case, a gay student asked Justice Scalia why he compares homosexuality to murder.  Scalia was a bit too playful in response.  As a result, people misunderstand his point.  The short answer is that he doesn't compare the two in terms of morality.  He compares the legislature's power to ban either or both.  That's different.  

We have to move beyond a fact to fact comparison.  Scalia is not saying that homosexuality is as morally repugnant as murder.  His argument is more nuanced than that.  He is saying that we ban murder for moral reasons.  Sure, killing someone probably has some negative utilitarian outcome or exerts long-term downward pressure on economic growth but our repugnance is more visceral.  It's just wrong to kill people.  Morally wrong, so we ban it.

Keep that in mind when considering the common refrain from gay rights activists, "the government shouldn't force its morality on anyone."  Yes, it should and thank goodness for that.  It is exactly what we do with murder.  So why not with homosexuality?   So Scalia's point is that the don't-force-your-morality-on-me argument is a non-starter.  We do it everyday.  The question isn't, "should the legislature be able to ban that which it finds morally wrong?"  The answer to that question is yes.  

Instead, the front line of this argument should be in the legislature, in the streets and in the homes of Americans.  And it should be about why homosexuality is not immoral and, therefore, should not be banned; not whether the legislature has the power to ban immoral things.  And this is an argument that, by the structure of our government, belongs in the legislature, not the courts.

In the end, Scalia is advocating a special kind of judicial restraint by averring that our system of government confers to a legislature (the voice of the people) this power to ban what it finds to be morally repugnant.  If it cannot do so with homosexuality, that undermines its power to do so with murder.  That is Scalia's point.   

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