Scalia, Sodomy, Bestiality, & Murder

To be fair, the distinguished Justice said that he wasn't equating sodomy with murder. He was just showing that banning one of these practices was much the same as banning the other: both prohibitions would simply be an expression of community morality. The Associated Press (as reported by Slate) quoted Scalia as saying, "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?" 

He was saying that it is legitimate for communities to express their moral feelings via legislation, prohibiting those things to which they object. His example was murder; but how about smoking, or listening to rock and roll, or uncovering a woman's face in public?

Leaving aside the imprudence exhibited (not for the first time) in his speaking publicly on an issue that is currently before the Court, it is instructive that Justice Scalia is willing to follow Rick Santorum in making comparisons between things that have fundamental differences. Santorum, as widely noted at the time, asked how, if we were to allow homosexuals to marry, we could legitimately prevent a man from marrying a monkey. He was ignoring the most obvious feature of the comparison he attempted to force: that of consent. It is present in a marriage between humans, but a member of a non-human species cannot, we understand, give its consent. The same is true, of course, in the case of murder: both parties typically do not consent to the act (if they do, we call it "assisted suicide," and we sometimes allow it). If my morality would forbid some private action by other individuals, Scalia seems to think that I have the right to ban it.

But even ignoring this basic issue, it is hard (though not impossible, I admit) to believe that Scalia would endorse, for example, laws against interracial marriage. Segregation itself was generally a matter of, well, morality, as the majority would have had it, when the Court ruled it unconstitutional. Why was Plessy v. Ferguson wrong and Brown v. Board of Education right, when the former represented an endorsement of widely-held community standards and the latter repudiated those same standards?

Scalia appears, in short, to be saying that the rule of law under the Constitution is whatever the majority says it is, regardless of the rights of the minority.