Scalia Defends His Legal Writings on Homosexuality in Talk at Princeton University

Photo of Justice Scalia by Denise Applewhite, Courtesy of the Princeton U. Office of Communications.

Less than a week after the U.S. Supreme Court announced it would take up the same-sex marriage issue, Justice Antonin Scalia was asked to defend his legal writings on homosexuality after his speech at Princeton University yesterday.

Several hundred people packed Richardson Auditorium to hear the Trenton native deliver the school’s annual Herbert W. Vaughan Lecture on America’s Founding Principles. Scalia spoke about his new book, “Reading Law: The Interpretation of Legal Texts.”

During the question and answer session, Princeton University student Duncan Hosie drew applause from the audience when he challenged Scalia for comparing laws banning sodomy with laws barring bestiality and murder. Scalia was unapologetic about his position or tactics.

“I don’t think it’s necessary, but I think it’s effective,” Scalia said. “It’s a form of argument that I thought you would have known, which is called ‘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?” Scalia said, adding dryly, “I’m surprised you aren’t persuaded.”

In his 45-minute talk, Scalia defended his judicial philosophy. He believes seeking the original meaning of the text is the best way to interpret the Constitution. Scalia, who spoke in a casual tone and cracked several jokes during his speech, criticized those who view the U.S. Constitution as a living document that changes with the times.

“I have classes of  kids who come to the court, and they recite very proudly what they’ve been taught, that the Constitution is a living document,” he said. “It isn’t a living document. It’s, dead, dead, dead… I don’t say that them. I call it the enduring Constitution. That’s what I tell them.”

Scalia said interpreting laws requires adherence to the words used and to their meanings at the time they were written.

“When we read Shakespeare, we use a glossary because we want to know what it meant when it was written. We don’t give those words their current meaning.,” he said. “So also with a statute. Our statutes don’t change meaning from age to age to comport with whatever the zeitgeist thinks is appropriate.”

He contrasted his philosophy of originalism with the notion of a “living Constitution” that changes over time as society becomes more mature. He said that people who see the Constitution as changing often argue they are taking the more flexible approach. But  their approach is restrictive, he said, and their true goal is to set policy permanently.

“If there’s anything you absolutely hate, why, it must be unconstitutional,” he said. “If there’s anything you absolutely have to have, it must be required by the Constitution. That’s where we are. It is utterly mindless.”

Scalia said it should be left up to states to approve legislation on issues like abortion, homosexuality and the death penalty.

“My Constitution is a very flexible one,” he said. “There’s nothing in there about abortion. It’s up to the citizens. The same with the death penalty,” he said. “Why would you think these nine unelected lawyers living in a marble palace have their thumb on the pulse of the American people so that they know what the evolving standards of decency are? I don’t know what they are. I’m afraid to ask.”

For originalists, Scalia said, the notion that the constitution changed from age to age was ridiculous.

He noted that looking at the text and determining the original intent of the law can lead to some outcomes that liberals support, and other outcomes that conservatives support. “It goes both ways,” he said.


  1. Maybe you had to be there, but I don’t find his argument very convincing. How can you compare a transaction between consenting adults to bestiality or murder, each of which clearly involve a non-consenting party? They aren’t comparable at all. As for Constitutional originalism, if the original Constitution was so perfect then how come it’s been amended 27 times?

    1. I believe his point was, “if you can have a moral reaction to one, why not the other?”. He is stating that the Federal government should not override local values, and that all these laws are based on values. We live in a society where 99% of the population finds murder morally wrong, probably 95% find bestiality morally wrong, and maybe 40% find homosexuality morally wrong.

      1. I think you’re right that this is his point, but the Supreme Court has a track record of using the 14th amendment to invalidate arbitrary, discriminatory laws based on ‘local values’.

  2. Scalia defends the duty of legislatures to create laws that criminalize certain behavior and does not believe the perrogative of courts are to reverse laws based on a policy whim. If a legislature can punish murder it can also punish other behaviors (sex included) There is no moral judgement on his part whether the law is good in his mind, he is however disturbed by the new meaning that many persons have towards the court as a body that should correct laws in its own image regardless of the Constittion’s text. He is a textualist not an originalist. However, to derive the meaning of a text it may require the historical documents of the time period to interpert meaning of the words. Scalia does not believe the Constitution is perfect but it is the law of the land until amended.

Comments are closed.