Gay marriage supporters say their optimism about the upcoming Supreme Court decision on a pair of cases that could impact the legal right of same-sex couples to marry has not waned in the face of controversial comments made Monday by Supreme Court Justice Antonin Scalia.
During an appearance at Princeton University, Scalia commented about his past legal writings that made a comparison between the right to ban sodomy with the right to ban murder and bestiality.
"It's a form of argument that I thought you would have known, which is called the 'reduction to the absurd,' " Scalia said. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"
The student's question was prompted by a dissent Scalia wrote in the 2003 case Lawrence v. Texas, which overturned the state's ban on sodomy. Scalia, who sees the Constitution as a dead document, rather than a 'living, breathing' one as other legal scholars do, clarified that he does not equate sodomy with murder but sought to draw a legal parallel between the bans, according to the Associated Press.
Casey Pick, spokesman for the Log Cabin Republicans, a group that supports gay rights, calls Scalia's comments "absurd" but remains confident her side will prevail in the upcoming hearings expected to take place in late March.
"That's just Scalia being Scalia," she says. "And his sort of originalist perspective, while it has a long history and he's certainly defended it well over the years, is a minority perspective even among conservative legal thinkers. And I will put Ted Olson, former George W. Bush solicitor general up against Tony Scalia any day."
Olson is the chief legal counsel arguing the case challenging Proposition 8, a California ballot measure that banned gay marriage after state courts okayed it.
"There is significant disagreement within various different strains of conservative legal thought … but to be able to say that there's any kind of fair comparison to bans on murder and bans on homosexual behavior is simply, well, absurd," Pick, who is a lawyer, says.
Jeff Krehely, a gay rights expert at the Center for American Progress, a liberal think tank, says Scalia's comments show that despite rapidly changing public opinion on the subject of gay rights, not everyone's opinion will change.
"Justice Scalia is somewhat of a public celebrity and I think he knows that and I don't think we should let his comments like this drive the narrative," he says. "He is one vote out of nine and if he wants to engage in these kind of grandstanding comments, fine, but he's not the whole court and I think we should just keep that in mind."
As with other highly anticipated rulings, such as the recent health care law, court watchers say the keys to the issue's fate lie with Chief Justice John Roberts and Justice Anthony Kennedy, not Scalia.
"Whether you are talking about the Proposition 8 case or the Defense of Marriage Act case, nobody is really making a plea for Scalia," Pick says. "So the question is, are there good, conservative arguments that you can make that will appeal to Kennedy, to Roberts — and there very much are."
In particular, Pick says the challenged to the federal Defense of Marriage Act, which allows the federal government to ignore state laws on the subject, flies in the face of federalism.
"When you've got a law that says, 'no matter what a state does, the federal government trumps it,' that's not how our system is supposed to work, from a conservative perspective," she says.
Conservatives who oppose legalizing gay marriage also expressed confidence when the high court agreed to hear the two cases last Friday, citing the fact that more than 30 states have passed same-sex marriage bans. Public opinion has been shifting on the subject, though, as voters in four states landed on the pro-gay side of referenda in the most recent election, when none had ever done so prior to that.