Antonin Scalia and Homosexuality

by Benjamin Studebaker

Recently US Supreme Court Justice Antonin Scalia was asked to defend a dissenting opinion he made in the 2003 Lawrence vs. Texas case, when the Supreme Court struck down laws against sodomy. The defense offered by Scalia is presently being roundly condemned in the media. Rather than join the chorus of visceral emotional disgust, I would like to analyse Scalia’s argument to investigate where precisely, if anywhere, the argument goes wrong.

First, let’s look at what Scalia said:

If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?

Scalia claims to be using reductio ad absurdum, an argumentative tactic in which one attempts to illustrate the absurd consequences of the argument in order to refute the argument wholesale. Scalia is comparing murder to homosexuality, but in a very specific and limited context–he is saying that the justification for permitting homosexuality, that the moral feelings many people have against it are not legally admissible, would also entail permitting murder.

The trouble here is that what Scalia is assuming is that the nature of the moral objections to homosexuality is the same as that of moral objections to murder, that the same justification governs both, and that one cannot have a system of morality that would permit laws against murder but not laws against homosexuality. In doing so, he has fatally misunderstood the debate.

There is no effort to eliminate all moral justifications for laws by the gay movement. There is a specific kind of moral justification for laws against homosexuality that is being attacked by the advocates of gay marriage–religious deontology, the notion that homosexuality is wrong because a god says so, or a holy book, or a religious figure.  Advocates for gay liberties are making the case that the current laws against marriage are grounded in religious principles, and that these religious principles are excluded as justifications from the law making process ethically, via their normative beliefs about what kind of society we should live in, and legally, via the separation of church and state as constitutionally established under the first amendment.

In order for Scalia to be correct, one of the following would have to be true:

  1. There is a non-religious moral justification for outlawing gay marriage.
  2. Murder is only illegal for religious deontological justifications–because god/book/priest X says so.

In the past, I have looked at what non-religious moral arguments exist against gay marriage, and found them wanting. They usually consist of scientifically rejected claims that gays make worse parents.

What other non-religious justifications could we offer for outlawing murder? Off the top of my head, I can offer two:

  1. Consequentialism
  2. Secular Deontology

I shall now endeavour to offer logical reconstructions of how each of these moral theories would get us to outlawing murder without relying on any religious premises.

Consequentialism on Murder:

  1. The state has an obligation to produce the best consequences.
  2. Murder results in physical pain for the victim, psychological distress for the relations of the victim, dehumanisation of the murderer, economic inefficiency due to lost productivity of the victim, stress from fear of being murdered for everyone, etc.
  3. Some number of these negative consequences combined generally countervails any positive results from murder.
  4. In general, murder produces bad consequences.
  5. The state therefore has a general obligation to prevent murder, and, assuming the law to be the most effective tool for this task, the state has the obligation to make murder illegal.

Secular Deontology on Murder:

  1. The state has an obligation to uphold moral principles.
  2. Categorical Imperative: An act is only moral if we would allow it to everyone in all circumstances.
  3. We would not permit everyone the freedom to murder in all circumstances.
  4. Therefore, murder is unethical in all circumstances.
  5. Therefore, the state has an obligation to prevent murder in all circumstances to uphold morality, and, assuming the law to be the most effective tool for this task, the state has an obligation to make murder illegal.

In contrast, we find both moral philosophies consistent with permitting gay marriage:

Consequentialism on Gay Marriage:

  1. The state has an obligation to produce the best consequences.
  2. Gay marriage makes gay people happy by augmenting their liberty and providing for their pleasure.
  3. These positive consequences countervail any offence or displeasure gay marriage produces in the wider population.
  4. In general, gay marriage produces good consequences.
  5. Therefore the state is morally obliged to permit gay marriage.

Secular Deontology on Gay Marriage:

  1. The state has an obligation to uphold moral principles.
  2. Categorical Imperative: An act is only moral if we would allow it to everyone in all circumstances.
  3. Marriage involves permitting people to voluntarily agree to be married. To deny marriage to gays violates the categorical imperative by failing to permit the behaviour to everyone in all circumstances.
  4. Therefore either marriage should be permitted to all who voluntarily, of their own consenting free will, wish to enter into it, or it should be permitted to no one at all.
  5. Assuming marriage to be moral, if marriage is moral, then gay marriage, as a specific circumstance of marriage, is also moral.
  6. Therefore the state is morally obliged to permit gay marriage to uphold morality.

What we have shown here is that there are viable moralities that would lead us to permitting gay marriage while disallowing murder. The real argument is not about a question of whether we can have moral laws grounded on morality at all, but which kind of moral justifications will be permissible in the making of laws.

In this argument, the political right has attached itself to religious deontological law, while the political left has attached itself to secular law, choosing not to differentiate at present between the consequentialist or secular deontological variants. This, in essence, is what the separation of church and state argument is about, which is why religious organisations are so thoroughly opposed to gay marriage and why the secular movement is so very in favour. The argument has now become a major turning issue in the wider culture war between the religious and secular moralities.

So where does Scalia go from here? The only remaining argument left open to Scalia is to say that because in early American history laws against homosexuality were permitted on moral grounds that were religious in nature, there is evidence to suggest that the founders considered religious deontology an acceptable basis for the formation of law, and that the first amendment should therefore be interpreted in this light. However, this sort of lawmaking treats the will of the founders as morally equivalent to religious deontology’s appeal to the will of the deity. It is a deontological ethic in which the founders are given supreme moral authority. Why should we reject a deontology of the founders? Two reasons:

  1. If founder deontology were the right way to go, then every deviation from the law as it was written by the founders would be an immoral law. The last president considered one of the founders was James Monroe–strict founder deontology would make null any law passed after 1825, meaning things like slavery would remain permissible, to use Scalia’s reductio ad absurdum.
  2. The founders created a political structure with the power to change its laws, indicating that the founders wanted future generations to make reforms to their system, indicating that founder deontology is self-refuting. The will of the founders is not that we follow the will of the founders.

Scalia’s argument is simply not very good. These refutations I have offered are not particularly complex or difficult, as moral philosophical arguments go. So why then do we have a Supreme Court justice who offers up arguments so poor in their quality that mere university students such as myself can, without exerting much mental energy, pick them apart? It is a poor reflection on the system that selected Scalia for this office the elected president (Ronald Reagan) and the senate that, surprisingly enough, confirmed him unanimously.