On Monday, U.S. Supreme Court Justice Antonin Scalia answered a gay Princeton student's question related to the justice's writings, which equate laws banning sodomy with those barring bestiality and murder. He told the student he felt legislative bodies are permitted to ban what they believe to be immoral stating "if we cannot have moral feelings against homosexuality, can we have it against murders? Can we have it against other things?"
I've seen Justice Scalia speak. I've read his books. I've listened to Justice Scalia call the Constitution a dead document, and tell audiences he never loses sleep because the framers of the Constitution never intended to protect abortion, or to allow gays to marry, or to address social issues. He bases his judicial philosophy on interpreting laws by adhering to the words used and to their meanings at the time they were written.
Although Justice Scalia denied he was equating sodomy with murder, he did state he was drawing a parallel between bans on both. The student wasn't satisfied with Scalia's answer, and why should he be? After all, last time I checked, murder never manifests as a consensual act between two people. Yet Scalia characterized his position as a form of argument called "reduction to the absurd."
Scalia's argument is illustrative of how some justices may view the rights of gay Americans, as if there is a treacherous "slippery slope" that will somehow doom America. What Scalia's essentially advocating, however, is a framework whereby the Constitution provides citizens with the freedom to oppress based on their own interpretation of what the majority of voters believes to be moral.
We all know where this is going. Last Friday, the Supreme Court agreed to hear two cases that challenge California's Proposition 8 and the Defense of Marriage Act — cases that address the civil rights of gay Americans under the equal protection clause and the consequences of DOMA on guarantees of property. The student's question came on the heels of what will bring oral arguments and U.S. Supreme Court decisions related to laws enacted in many states which deny same-sex couples equal recognition under the law should they choose to marry.
Last weekend, I attended the United States Holocaust Memorial Museum's 20th anniversary kickoff in Palm Beach County, which served as a poignant reminder of the how courts in Nazi Germany, when faced with complex social dilemmas and the infusion of morality into the law, erred on the side of restricting civil rights and guarantees of property that facilitated atrocities under the Third Reich.
I doubt a Supreme Court decision will overwhelmingly lead people to believe same-sex marriages are equal to marriages between heterosexual couples. And I don't need people to compare one neighbor's marriage to the next. Bias and bigotry still exist around interracial marriage even though laws banning them were struck down more than 40 years ago. However, I do need my marriage to be treated equally under the law, as intended by the state in which my ceremony was conducted, even if my state won't allow it.
But that is the crux of this problem. As so eloquently portrayed in Steven Spielberg's Lincoln, Euclid's 2000-year-old self-evident, common notion states: Things which are equal to the same things are equal to each other. And that is what some older Americans cannot tolerate. If the laws of our land recognize — legally and equally — same-sex unions and unions between heterosexual couples, then by Euclid's assertion, they are equal to one another. For those wishing to impugn morality upon the masses, this is simply unacceptable.
The laws defining marriage between one man and one woman were not conceived "with malice toward none, with charity for all, with firmness in the right as God gives us to see the right." They were created to deny some Americans basic civil liberties and protection under the law, which is precisely how the courts failed Germany in the 1940s.
Tony Plakas is the CEO of Compass, the gay and lesbian community center of Lake Worth and the Palm Beaches. He can be reached at firstname.lastname@example.org