Clearly has no problem with straw men, long as their haystacks aren't touching...

>> Tuesday, December 11, 2012

U.S. Supreme Court Justice Antonin Scalia on Monday found himself defending his legal writings that some find offensive and anti-gay.

Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder.

"I don't think it's necessary, but I think it's effective," Scalia said, adding that legislative bodies can ban what they believe to be immoral.

...

"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,'" Scalia told Hosie of San Francisco during the question-and-answer period. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

Scalia said he is not equating sodomy with murder but drawing a parallel between the bans on both.
- Geoff Mulvihill, "Scalia Quizzed at NJ's Princeton on Gay Issue",
Associated Press, December 11th, 2012.

The learned jurist.
There was a time I regarded Justice Scalia as a guy who was intellectually honest although I disagreed with him, a reasonable mind I could differ with.  Was.  It's a long time gone.  These days, with what I do to earn my bread, it's hard not to find Scalia convenient--his Eighteenth Century attitude towards search-and-seizure issues makes him a helpful idiot to people charged with drug offenses after the police have burgled their homes, f'r'instance--but I can't say I have any real respect for the man anymore.

That portion of the AP article up there's a pretty good example of why.  Maybe Scalia was intellectually honest twenty years ago or maybe I was just so naïve, but you can't accuse him of intellectual honesty these days, and the quotes above almost imply Scalia can't accuse himself of having any integrity.  Scalia pretty clearly has a straw man argument confused with reductio ad absurdum, and he almost knows it himself: "I don't think it's necessary, but I think it's effective," i.e. he knows it's a bullshit argument but since it yanks people's chains, he'll go on making it.

I mean, he has everything all over the map.  F'r'instance, of course he's equating sodomy and murder, because that's the only way his argument that moral feelings against item one and moral feelings against item two have any relevance to each other at all.  Possessing moral feelings against murder doesn't mean one possesses moral feelings against every act between two people, else we might as well have moral feelings against heteronormative marriages between men and women (that, by the way, is an actual reductio ad absurdum argument).  And he's begging a pretty obvious question, which is that whether one has moral feelings about an issue is a separate question from whether those moral feelings merit legislation; I know plenty of people who have perfectly justifiable moral feelings against eating meat, but if they all somehow ended up in a state legislature together, I think we might reasonably take issue with their banning it; for that matter, I know people who have moral feelings against particular expressions of speech or the practice of religion that we'd all agree they can't legislate under our current form of government.

I myself have moral objections to Scalia's church's practice of covering up pedophiliac criminal acts of their priests, but I wouldn't presume to legislate his faith away, though it would be a fairly straightforward (albeit drastic) solution to the problem.  And I note that my first, biggest objection to such legislation wouldn't even be Constitutional: as morally despicable as I find decisions made by the Catholic hierarchy to cover up criminal acts and despite being an atheist who doesn't have much use for religion generally, I nevertheless passionately subscribe to Thomas Jefferson's maxim that it shouldn't matter to me what another believes if it doesn't break my leg or pick my purse (or, we might add, if it doesn't molest a kid and send the molester packing away to another jurisdiction before the crime can be prosecuted).  That is, even if I have moral issues with the Catholic Church and philosophical issues with the Catholic Church, I wouldn't favor abolishing it even if the First Amendment were repealed and government had the power to do so, see what I'm getting at?

This is one of the core problems with Scalia's bullshit: of course he can have moral feelings against homosexuality if he wants to (I mean, sure, it's bigoted and stupid, but that isn't the point)--that doesn't mean he ought to legislate them.

And it also has to be pointed out in this context, I think, that Scalia's straw man doesn't even survive much scrutiny on its own terms.  Murder gets trotted out a lot whenever someone thinks they can score an easy point this way: "Well, if we allow _____, next we'll have to allow murder!"

Only, see, there's a basic flaw in the argument, which is that "murder" has a pretty specific meaning in a legal context, and a pretty confused meaning in almost every other context.  In the legal context, "murder" is the unlawful killing of another human being with malice aforethought.  So if you say something like, "If we cannot have moral feelings against homosexuality, can we have it against murder?" and you mean murder in the legal sense, then your implied premise is that homosexuality is unlawful, which is really just begging the question since the whole issue to start with is whether homosexuality ought to be unlawful.  And what makes that question-begging even dumber in the legal context is that a general premise of anti-gay legislation, from Bowers v. Hardwick to DOMA, and a frequent premise of moral and religious anti-gay arguments have always been that you can't prohibit the status of being homosexual, only specific conduct.  Gay people can indulge in straight sex and marry opposite-sex partners, see, so they're not really being discriminated against, the line goes.  (Or, in the religious context, "hate the sin but love the sinner".)

And if you don't mean "murder" with its legal meaning, and what you really meant to say was "killing" or "homicide", of course it's worse, because we have all sorts of moral and legal exceptions, caveats, asterisks, parentheticals and amendments to the general badness of killing people.  It's wrong to kill someone by accidentally running them over at a crosswalk, but not as wrong as killing someone by waiting outside their house hiding in the bushes armed with a knife.  Killing someone for money is generally frowned upon unless you enlist in the armed services first and then only kill people the government tells you to, or unless you've been employed by the state to kill a specific person convicted of a capital crime.  You can kill your neighbor if he's breaking into your home and you have a reasonable apprehension for your life and property.  You can't kill your neighbor because a stray dog told you to, but if you were suffering from a defect of reason or disease of the mind and were therefore unable to understand the nature or quality of the act you were committing or, because of your defect or disease, couldn't tell right from wrong, we can't actually punish you for killing your neighbor because the stray said so (though we might be able to send you off to a mental hospital indefinitely; as for the dog, there's really nothing to be done there at all).

Looking For Mr. St. Augustine.
We have entire systems of law and philosophy dealing with when killing is moral or immoral, necessary or unjustified, legal or not; so far as I know, nobody's endeavored to come up with a similar system for homosexuality, though I can think of several conservative pastors and former Republican members of Congress who would probably be grateful for such a framework if anyone's interested in bothering.

So here's what you get: you can't make the "Well, if we allow _____, next we'll have to allow murder!" in a legal context, because if you allow murder, it's no longer murder ("unlawful" is part of the legal definition, remember); and you can't make the "Well, if we allow _____, next we'll have to allow murder!" in a generic context of "murder=homicide", because, as a matter of fact, we already allow homicides in a variety of situations.  So that kind of argument is stupid, and if you make it, you're stupid.

Or maybe dishonest.  I mean, here's part of the problem with Scalia (see, we were getting back to him eventually): I've read some of the guy's legal opinions, and I don't know that I can honestly call him stupid.  So if he says something stupid, you have to wonder if he is stupid or if he's just intellectually lazy and dishonest, willing to make any kind of shitty argument, willing to overlook contrary facts and arguments, willing to basically make stuff up if he has to, in order to get where he wants to go.  In this case, that Scalia wants to rationalize discrimination against people whose personal lives (which aren't really his business to start with) squick him out ("Oh noes, penises!"), but it could just as easily be the discovery that a paragraph specifically and literally about regulating state militias confers a personal right to possess and use firearms.

I think you can tell I'm inclined towards the latter view re: Mr. Associate Justice Antonin Scalia.  Which is a goddamned shame insofar as the right could use some intellectuals, and you don't get to be an intellectual if you're really just a trolling crank, which is where I think Scalia ends up landing himself.  If he were intellectually honest, he'd just acknowledge that homosexuality scares and confuses him and violates traditional norms he has a philosophical or emotional attachment to, but that he doesn't really have a rational leg to stand on.  Who knows: maybe he'd even see his way to deciding that there isn't a Constitutional interest in banning same sex marriages just because he has issues.

I won't be holding my breath.



4 comments:

Warner Wednesday, December 12, 2012 at 9:32:00 AM EST  

Assuming of course he can understand it, that argument has to have Thomas seeing red as it justifies laws against miscegenation.

Warner Wednesday, December 12, 2012 at 11:09:00 AM EST  

Leaving aside the Discworld novel involving the girl who didn't date so she could be a virginal human sacrifice, bestiality and murder both involve a lack of consent.

Miscegenation and sodomy both include consent. Being somewhat progressive, I will ask for consent, conservatives assume a woman consented when she was born that way.

Steve Buchheit Wednesday, December 12, 2012 at 8:39:00 PM EST  

I think it's more evidence that the justice has suffered a mild stroke which has affected his cognitive abilities. At least IMHO.

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