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the absurdity of scalia’s defense of anti-sodomy laws

December 11, 2012

For US Supreme Court Justice Antonin Scalia, the Constitution is dead yet flexible, kind of like his arguments and use of logic when it comes to defending his comparison of laws banning sodomy with those barring bestiality and murder:

Antonin Scalia Defends Legal Writings Some View As Offensive, Anti-Gay

When Duncan Hosie, a gay student, questioned Scalia’s defense of laws banning sodomy by comparing them to laws barring bestiality and murder, Scalia replied, “It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd’ … If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” (One could just as easily have retorted, “It’s a logical fallacy that I thought you would have known, which is called false equivalency.”) Unsurprisingly (except to Scalia), Hosie wasn’t convinced by Scalia’s dead-yet-flexible anti-gay ideology logic.

Somehow Scalia is not only able to ‘draw parallels’ between laws banning a consensual, sexual act between individuals that doesn’t harm anyone (sodomy) and laws banning a violent act that ends the life of another (murder) in his use of reductio ad absurdum, but he also manages to completely ignore the fact that this very same argument was once used to support the legality of laws banning interracial marriages (i.e., If we can’t have moral feelings against or objections to interracial marriages, can we have it against anything?). It didn’t hold up to scrutiny then, and it sure as hell shouldn’t be allowed to remain unchallenged now.

Another consequence of his argument, which I sincerely doubt Scalia bothered to consider, is that a prudish enough society could just as easily decide that all forms of sexual intercourse should be banned, promoting celibacy instead. And by his logical, society should have that ability too, even though its absurdity should clearly illustrate why this kind of logic is flawed. They way I see, this kind of argument comes more from a place of privilege and discrimination than anything else. For Scalia, the morality and legality of heterosexual sex (and marriage) is never questioned, and he obviously doesn’t believe the reverse of his argument is possible (i.e., a legal challenge to vaginal sex), therefore it’s not even a consideration while he attempts to support his views on anti-sodomy laws.

I say good on Hosie for not being persuaded by such a lackluster argument.

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