As has been widely reported, Justice Antonin Scalia made a controversial — albeit illuminating — remark during a speech at Princeton University. A student in the audience asked him to justify previously published opinions in the course of which he had compared laws criminalizing homosexuality to those banning bestiality and murder. Scalia defended the comparison, saying that while he wasn’t equating homosexuality with murder it illustrated his belief that legislative bodies should be able to enact laws against “immoral” behaviors.
After all, he reasoned, if legislators can outlaw murder, they should be able to prohibit other forms of “immoral behavior.”
No one who reads my columns will be surprised to find that I have a problem with this “logic.” Legislators can properly outlaw murder because they have an obligation to protect citizens from harm; Lock’s hypothesized social contract grants government an exclusive right to the use of coercive force in return for governments promise to keep some people from harming others.
Furthermore, to the extent that laws against murder, theft and/or rape are founded on morality, it is a virtually unanimous moral judgment. Political philosophers generally agree that legislation prohibiting consensual behavior is improper if there is significant disagreement about the moral status of that behavior. Laws restricting abortion or outlawing sodomy are improper because there is no social consensus on those issues.
Furthermore, I am deathly tired of legislators and judges who define “morality” exclusively by what happens below the waist and who confuse “tradition” with a moral compass.
Throughout his career, Justice Scalia has devoted his undeniable brilliance not to an exploration of the human condition, the nature of morality or even the role of law in society, but rather to the creation of an elaborate intellectual defense of his personal prejudices.
Anyone who would equate sexual orientation — an identity — with murder — a behavior — fails Classification 101. It can never be immoral simply to be something: gay, female, black, whatever. Morality by definition is right behavior. And most moral philosophers begin that examination by asking a fairly simple question: does this behavior harm another?
Now I know there are endless (legitimate) arguments about the nature of “harm,” but — American Family Association and its ilk to the contrary — the mere fact that gay people exist and may be granted equal civil rights cannot be rationally considered harmful.
How moral we are depends upon how we treat each other. Sexual molestation is wrong whether the molester is gav or straight. Theft is wrong irrespective of the color, religion or sexual orientation of the thief.
And — as many others have noted — tradition is hardly a reliable guide to moral behavior. Quite the opposite, really. War has been a human tradition. Slavery was traditional for generations. The submission of women lasted eons. The loss of these “traditions” is hardly a victory for immorality although for old, white guys like Scalia, I’m sure the loss of privileged status is cause for regret.
The job of legislatures is to pass measures needed by governing bodies — rules for civic order, taxation, service delivery and the myriad other matters that may properly be decided communally.
Giving legislators the right to decide whose lives are sufficiently “moral” to deserve equal treatment under the law is improper. It is an abuse of power.
It is immoral.
