He has also been further to the right than even many in the right on issues such as airplane and maritime accidents -- his sentiment, which is carried by the Court as a whole, is that international treaties on shipping give passengers the same treatment as cargo and therefore mandatory payouts to families should be no different (in most cases, an accidental death of this nature results in reparations as little as $12,000 per head).
He has never made a secret of his opinion that homosexuals pose a grave threat to the so-called "morals" of America. This has indeed been his long standing position over 25 years.
But just days after the Court agreed to hear and consolidate two appeals -- one, California's legal appeal of the Ninth Circuit striking down Proposition 8, the gay marriage ban (that is, a legal appeal in the sense that California is only asking for the court to uphold the law itself even though Governor Jerry Brown openly opposes it); and two, a gay couple challenging the federal Defense of Marriage Act which denies spousal benefits to same sex couples even in states that allow gay marriage or recognize same sex common law partnerships -- Scalia got into an argument with a student at Princeton, in front of 800 others.
The student, a freshman named Duncan Hosie, is eighteen and openly gay -- asked if Scalia was at least willing to reconsider his on the court record harsh comments. Said Hosie:
I think there is a fundamental difference between arguing the Constitution does not protect gay sex, which is a defensible and legitimate legal position I disagree with, and comparing gays to people who commit murder or engage in bestiality. Do you have any regret or shame for drawing these comparisons you did in your dissents?Scalia remained unrepentant:
If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things? Of course we can. I don’t apologize for the things I raised. I’m not comparing homosexuality to murder. I’m comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct. I’m comparing that with respect to murder and that with respect to homosexuality. It's an argument by way of reductio ad absurdim. It’s a type of argument that I thought you would have known…. I’m surprised you aren’t persuaded.Is this an issue about religion -- an apologist for the Vatican? Hardly. If that was the case, a lot of court decisions would have gone his way. But the Catholics on the Court are as diverse as Catholics are -- indeed, any religious grouping is -- in America.
At the present time, the Court is composed of six Catholics and three Jews -- the first time ever that SCOTUS has no Protestants at the Marble Temple. Besides Scalia, Clarence Thomas and Sam Alito are almost certain to vote no on gay marriage. I think the latter is a given, since he famously said at the appeals level in the Pennsylvania case 20 years ago that ultimately upheld abortion rights although also severely curtailed them -- that while he agreed with the majority the state had gone too far with mandatory spousal notification, the courts had no business in overturning laws even if they were patently stupid.
I also think it's pretty obvious that the three Jewish justices will vote for gay marriage. Ginsburg, Breyer and Kagan have consistent liberal records so that's a no brainer.
One of the other Catholics, Sonia Sotomayor, will almost certainly vote for gay marriage too.
So with the balance 4-3, once again, it comes down to the two swing votes. Kennedy is a conservative on most criminal matters but on social issues has tended to lean left. A yea vote would put it over the top. But it is not at all clear how he'll vote on this issue. Chief Justice Roberts has also proven to be a conservative -- but he voted to uphold "Obamacare" earlier this year, to the shock of just about everyone.
It's okay to have one's opinions. But to express them so openly, outside of the courtroom, morally disqualifies Scalia from participating in consideration. It can be tricky having an eight member bench, since in case of a tie the appeals court holding is what stands. But if Roberts can be persuaded, then gay marriage would win whether it's 5-4 or 4-4. Then anything Scalia has said, no matter how much he has a right to that opinion, won't matter at all.
And I think that's a good thing. For as another conservative but very open minded former Justice, Sandra Day O'Connor wrote in the Planned Parenthood v. Casey decision that upheld Roe v. Wade, "Our obligation is to define the liberty of all, not to mandate our own moral code."
UPDATE 7:20 PM EST, 0020 GMT Friday): A couple of clarifying additions. Also, the more I think about Scalia's comments, the more of a pinhead he is showing himself to be. If Rush Limbaugh was labelled as such by no less than Bill O'Reilly then Scalia deserves at least as much derision.