Editorial: Legitimate judicial philosophy, unnecessary rhetoric

On Monday, Justice Antonin Scalia visited Princeton to deliver a lecture discussing his judicial philosophy. The most controversial moment of the lecture was Scalia’s defense of his position and rhetoric on gay rights in response to an audience question. We praise the frankness and liveliness of the debate that Princeton fostered but disapprove of the sensationalistic manner in which Scalia’s remarks have been reported. Productive discourse requires recognition of the strongest arguments on all sides of an issue. We believe there are merits to gay rights advocates’ position and Scalia’s position on state legislatures’ democratic rights.

At the lecture, Scalia was challenged on his rhetoric in Lawrence v. Texas and Romer v. Evans comparing the possibility of moral stances on homosexuality to the possibility of moral stances on bestiality or murder. Despite the way his response has been portrayed in the media, Scalia was not equating the morality of homosexuality with the morality of murder but asserting that, as a philosophical matter, people can have moral views on homosexuality just as they can have moral views on murder. Scalia took absolutely no position on whether moral views against murder and homosexuality are equally justified. There is a difference between originalist judicial philosophy and intolerance. Nevertheless, the media’s focus, as well as much popular discourse at Princeton and beyond, has wrongly reduced Scalia’s position to one of base bigotry. Indeed, The New Yorker recently wrote, “Scalia clings to hate — what he calls animus — because he’s got nothing else.”

We believe such oversimplifications are incorrect and unproductive. In Scalia’s defense, the states have always had the ability to pass legislation to promote public health, safety and morals — and such exercises of legislative authority represent the democratic power of the people. Just as the moral views of a democratic majority condemning bestiality or murder may serve as one rational basis for legislation curtailing those acts, the moral views of a majority toward homosexuality could provide laws a legitimate basis within our constitutional system — so long as constitutional provisions like the Equal Protection Clause are not implicated. Thus, Scalia’s remarks were not assertions regarding the morality of homosexuality but about the proper balance of power between democratically elected state legislatures and the unelected judges of a court.

While we do not take a position on whether the Equal Protection Clause prohibits state legislation targeting homosexual conduct, we believe the concern for democracy and protecting state legislative power is a coherent and reasonable motivation. Nonetheless, we also support the position of gay rights activists that Scalia’s rhetoric was unnecessarily inflammatory. Even though Scalia does not equate homosexuals to murderers, he errs in equating the potential for moral views against both. The very definition of murder as “unwarranted” killing means it is wrong by definition and no reasonable person could deny its immorality, whereas the same is not true of homosexuality. Furthermore, such rhetoric is powerful in eliciting passions both for and against the recognition of gay rights at the judicial level — passions that often detract from consideration of all relevant arguments.

We encourage our readers not to immediately dismiss views with which they disagree and weigh the arguments for and against striking down morality legislation.

Zeit Cai ’13, Thomas Horton ’15, Connor Mui ’14, Lily Offit ’15 and Varun Sharma ’15