Subtlety and Scalia

The Associated Press reports on a question posted to Justice Scalia at a lecture at Princeton University :

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

“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.

Even if one supports so-called gay rights, this is a regrettably unthinking way to advance them. To state the obvious, Scalia’s point was not that homosexuality is equivalent to murder but that the law inevitably makes a moral judgment in banning, or allowing, either one. This creates an equivalence between the two only if you think that all things banned are thereby necessarily considered equally bad. Yet we somehow manage to see a difference between a bomb and a Big Gulp, even though New York’s laws frown on both.

There is a great deal of justified worry about how the advance of gay rights will harm religious liberty. At this stage, though, subtlety and reason are suffering even worse violence.

Update: Here are the passages under dispute. The first from a 2006 dissent in  Romer v. Evans :

The court’s opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct.

The second is from a 2003 dissent in  Lawrence v. Texas :

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ . . . the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity,” Scalia wrote in dissent. “Bowers held that this was a legitimate state interest. The court today reaches the opposite conclusion . . . .This effectively decrees the end of all morals legislation.