The Cases Behind Scalia's Spat With A Princeton Student

A college freshman drew attention this week for challenging conservative Justice Antonin Scalia over his views on homosexuality. Here are the cases behind the exchange.

WASHINGTON — An exchange this week between Supreme Court Justice Antonin Scalia and Duncan Hosie, a Princeton student, has received much attention since the lecture on Monday — ending with Hosie's appearance Tuesday night on MSNBC's The Last Word to discuss the remarks.

Here's the the full exchange, from Princeton's communications office:

[F]reshman Duncan Hosie asked Scalia about his mentions of murder, polygamy, cruelty to animals and bestiality in his dissents in cases regarding gay rights. Hosie, who identified himself as gay, said he found the comparisons offensive.

"Do you think it's necessary to draw these comparisons, to use this specific language, to make the point that the Constitution doesn't protect gay rights?" he asked.

"I don't think it's necessary, but I think it's effective," Scalia said. "It's a type of argument that I thought you would have known, which is called a reduction to the absurd. And to say that if we cannot have moral feelings against homosexuality, can we have it against murder, can we have it against these other things? Of course we can. I don't apologize for the things I raised. I'm not comparing homosexuality to murder. I'm comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I'm comparing that with respect to murder and that with respect to homosexuality."

The earlier cases to which Hosie and Scalia were referring were 1996's Romer v. Evans, in which the Supreme Court decided that Colorado voters could not amend their constitution to prohibit cities from passing ordinances to prohibit anti-gay treatment, and 2003's Lawrence v. Texas, in which the court held that state sodomy laws were unconstitutional.

In his dissenting opinion in Romer, Scalia wrote:

The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers [v. Hardwick, in which the court upheld sodomy laws as constitutional].

When Lawrence did overturn Bowers v. Hardwick, tossing out the nation's remaining sodomy laws, Scalia raised the alarms, writing in dissent:

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.

He then took aim at his colleagues and his profession and warned of the case's impact on "homosexual unions," writing:

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. ...

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. ...

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada .... At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence—the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Do not believe it. ... Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. ... This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

Now, of course, same-sex couples' marriage rights are at issue before the court in two cases, one involving the federal Defense of Marriage Act and the other involving California's Proposition 8.

And Justice Scalia, who joined the court months after it had decided Bowers v. Hardwick in 1986, will be the longest-serving of the nine justices to decide the matter.

Duncan Hosie on MSNBC