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13 Dec 2012 01:05 PM

The Unreason Of Antonin Scalia

On Monday, Duncan Hosie, a gay freshman at Princeton, confronted Supreme Court Justice Antonin Scalia about Scalia's anti-gay dissents on landmark gay rights cases. This interview with Duncan is worth watching:

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I'm struck first of all by the freshman's calm civility and sharp logic. It contrasts so vividly with Scalia's emotionalism and bravado. When a few of us kick-started this issue way back when, this young man wasn't even born. Now he articulates the same case with polish, confidence and intellectual clarity. I cannot express how moving that is for me and those who lived through the beginnings of this struggle.

But the exchange also brought back something in my own past. Well over a decade ago (I can't remember when), one of the professors I taught students for at Harvard, Michael Sandel, invited me to debate my former dissertation adviser, Harvey C Mansfield, on marriage equality. It was for Sandel's legendarily popular course, "Justice". The fact that Harvey and I both agreed to do it and debated with civility and mutual respect (I revere Harvey as a scholar and as a human being) was, for me, somewhat moving, if also a little personally awkward.

But at one point, Harvey simply said (I'm paraphrasing), "If we cannot disapprove of homosexuality, then what can we disapprove of?" The huge student crowd - over a thousand in Sanders Theater - audibly gasped. The assumption that homosexuality was obviously a profoundly immoral and disgusting thing was what separated the generations. I asked Harvey to make an argument that wasn't based on a mere assumption, that could show why non-procreative sex for a gay couple was somehow obviously abhorrent, while non-procreative sex for a straight couple was completely accepted (i.e. through contraception). He couldn't. And since that moment, I think it's fair to say, his position has softened a little (although I don't want to put words into his mouth).

The equation of homosexuals and murderers is also, it seems to me, not so much offensive as bizarre. Let's say, for the sake of argument, that same-sex non-procreative sex acts are as bad as murders. I know that's completely insane, but bear with me. Murderers still have the core constitutional right to marry the person they love. Even people on death row who cannot even consummate a marriage because they are incarcerated retain the core right to marry, according to Supreme Court precedent. Dead-beat fathers who have abandoned children from previous marriages and failed to provide child support equally retain a constitutional right to re-marry as often as they wish (also ruled on by SCOTUS). All these rights have been upheld strongly by the Supreme Court over the decades (for the precise precedents, check out my anthology, Same-Sex Marriage, Pro and Con).

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