SULLY ON SCALIA, REDUX
Andrew Sullivan rants against Antonin Scalia again today:
The difference with the past can be seen in the difference between Sandra Day O’Connor’s argument and Antonin Scalia’s. O’Connor sees gay people as fully-fledged people, with lives and loves and needs like everyone else. Scalia sees them as people who for some bizarre reason do immoral things with their body parts. O’Connor sees that homosexuality is what people are. Scalia thinks that homosexuality is what some people do. Once you accept O’Connor’s premise, Lawrence is not tampering with the Constitution, it’s applying it, given what we now know about sexual orientation. If you accept Scalia’s premise, you can see why he thinks the door is now open to raping children and marrying German Shepherds.
While the argument that people are “born” homosexuals (which I tend to believe) is a strong one for granting equal rights under the law, it is not necessarily useful in determining whether certain conduct in which homosexuals are prone to engage should be legal. (I think it should be, but for libertarian reasons–the “harm principle” and all that.)
Indeed, I would agree with Sully’s characterization of Scalia’s argument here. Aren’t there some people who, for reasons outside their control, have an inate desire to “rape children and marry German Shepherds”? Surely there are. Aren’t they “fully-fledged people, with lives and loves and needs”? I would think so. That they are much fewer in number than homosexuals doesn’t really matter, since “normalcy” doesn’t define deviancy by this standard. Now, raping children is obviously bad and can be enjoined on libertarian grounds–or, indeed, almost any grounds other than those established here by Sullivan. Presumably, marrying German Shepherds should also be legal, although there may be some question as to consent. . . .
(Sully makes a much better case for why sodomy should be legal here, by the way.)
UPDATE (10/1 2004): Those of you who Google’d “Scalia and orgies” are probably looking for this post from today: Scalia: Orgies Ought to be Encouraged.