Legislating Moral Feelings

Nothing infuriates gay-rights advocates like analogies. They're understandably offended when apologists for measures limiting homosexual rights compare homosexual conduct with other behaviors traditionally stigmatized or forbidden by communities. One such offended person confronted Justice Scalia of the Supreme Court Monday during a question-and-answer period at Scalia's book-tour appearance at Princteon. The student chided Scalia by implicitly equating homosexual conduct with other forms of morally "reprehensible" or "unacceptable" behavior rightly subject to community regulation through law.  He especially objected to analogies between homosexual conduct and bestiality or murder, and expected contrition from the Justice. He got none. Instead, Scalia explained that in past opinions he had simply indulged in the reductio ad absurdam. He had asked rhetorically whether, if communities "may not adopt moral sanctions" against homosexual conduct -- if they can't "adopt moral sanctions, moral views, against certain conduct" -- they have any right to adopt moral sanctions against murder. The point, for Scalia, isn't whether gay sex is morally equivalent to murder but whether communities can enact "moral sanctions" into law -- whether "moral sanctions" are a sufficient constitutional basis for local laws. As he told the student, "If we cannot have moral feelings against homosexuality, can we have it [sic] against murder?" He quickly added, "Of course we can," without conceding the existence or clarity of a line separating the conduct against which we can have moral "feelings" or "sanctions" and the conduct against which moral feelings should have no legal force.

For Scalia, presumably, popular sovereignty means that communities can enact "moral feelings" into law. As a Supreme Court jurist -- and here I'll presume on his behalf -- he must recognize constitutional limits on communities' prerogatives. He may disagree with other judges on where the lines are drawn, but he is bound to acknowledge that limits exist. As an originalist, Scalia apparently believes that the moral feelings prevalent in 1787, when sodomy was universally illegal, cannot be constrained today without imperiling the moral sovereignty of the people. Should the moral feelings of 2012 have similar sway? Let's imagine that a wave of moral revulsion against capitalism will continue to grow from an impetus in 2008. Would Scalia, should he live to face the issue, concede a community's prerogative to enact their moral feelings against capitalism into law? He would probably hasten to show where the Constitution checks moral feeling -- whether he recognizes this theoretical feeling as "moral" or not -- by protecting property rights. Would Scalia be more prepared to defer to moral feeling on questions of sexual conduct as a matter of moral bias -- or is the real point that Scalia recognizes in the Constitution no restraint on laws codifying moral feeling against gay sex similar to the constraints apparent to everyone against confiscation of wealth or property? If that's the core of the case, why bring "moral feeling" into it? He may do so simply because he isn't as much of an "originalist" as he claims.

Originalism can have two different meanings. A plausible meaning would be that the rights we enjoy as Americans originate with the Constitution itself -- that they come into being only with the ratification of the document. The more common meaning has something to do with the original intent of the Framers, and presumes that something outside and prior to the text of the Constitution effectively and permanently explains what it means. From this perspective, the Constitution becomes dangerously malleable if its meaning is not defined from the outside -- by original intent, "natural law," "moral feeling" or what have you. Without "moral feeling," Scalia may believe -- and specifically the average moral feeling of the Framers and the people of 1787, the Constitution is nothing but a scrap of paper, and if it's used against moral feeling, it becomes worse than that. At Princeton, Scalia gleefully mocked the idea of a "living Constitution" adaptable without amendment to evolving moral feelings." It isn't a living document! It's dead. Dead, dead, dead!" he said before stating his preference for the adjective "enduring," by which he presumably means something essentially unchangeable except through the formal amendment process. He added that it was legislators' job, not judges', to determine "the evolving standards of decency" in society, but this strikes me as an abdication of responsibility. Why does the Constitution restrain legislatures to any extent? Because it creates a standard of some sort -- of decency, perhaps -- to which legislatures are answerable. As long as the Constitution does not say that the will of legislatures is absolute, judges must expect people to appeal to them against legislation, expecting the final word on its validity from a court in the Constitution's name. Majorities may set moral standards in society, however prejudiced, but the Constitution says that majority rule, even when wrapped in "moral feeling," is not absolute. The struggle for gay rights is the civil rights movement of the 21st century -- and if some people don't like that analogy, it's too bad for them. The Court was on the right side of the 20th century's struggle much of the time; there's no good reason for it not to be in our time.