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.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Matthew says:

    Part of me really wants to say in response to Andrew that there is no such thing as homosexuals (or heterosexuals, for that matter). There’s just sexual practice and societal acceptance thereof. Homosexuality is frowned upon by most of American society at present; in the past it was hated, and in the future it will probably be accepted of by the majority of Americans as just another lifestyle choice.

    Andrew may sneer and proclaim that “God made me gay,” but once we open the door of destiny, then shouldn’t we also say that God made so-and-so a child molester, so-and-so incestuous, and so-and-so a German Shepherd shagger? Why is sexual preference different for homosexuals than for these groups? The only answer is that society more or less tolerates homosexuality and not other behaviors.

    I would prefer a federalist/Burkean approach which simply says that gays as persons don’t have “fundamental rights,” but that persons have the right to engage in societally-approved behavior. In this case, societal approval has grown to include homosexual sex. Marriage should also unfold along these lines, as per my post yesterday.

    The thing is, there’s not a single good reason to explain how homosexuals are a minority and other forms of non-heterosexual preference aren’t. Any rights extended to gays and lesbians according to “minority status” rather than evolving societal practices will eventually be claimed by groups that even homosexuals label undesirable.

  2. Stephen says:

    First, let me say that I support gays having equal rights in general, although I am undecided about whether gay marriage should be legalized. Second, I’ve lived in predominantly gay communities in San Francisco and New York City most of my adult life. I’m straight.

    Now, I don’t swallow the “they were born that way” rationale for the following reason: Gay men have tried to seduce me continually, with the full knowledge that I am straight. They offer these arguments: (1) gay sex is better because you can have a whole lot of sex, including orgies without (2) a relationship with a woman who will limit your sexual experience because that’s what women do to men. And (3) if you become gay, you can devote yourself totally to your own selfish interests without being dragged down by women and children. In other words, gays have always offered a rationale of why they are gay to me as they try to seduce me. Not one has ever stated that he was just “born that way” when he’s tried to seduce me.

    Maybe they don’t know themselves, but gays have always told me that they became gay because it was more “reasonable” and “safer” and offered them more “freedom.”

    Gays, in my experience, say something entirely different in private and in intimate settings than they do in public. I’m pretty suspicious that the public statements are so much window dressing, intended to divert people from discerning that men make a moral choice to become gay.