Controversy follows U.S. Supreme Court Justice Antonin Scalia like Pig Pen’s cloud of dirt. You’ve probably heard that on Monday night, when the justice was speaking at Princeton, a gay student confronted him about his dissent in the 2003 case of Lawrence v. Texas, in which the majority struck down a state law banning same-sex sodomy. Scalia’s dissent discussed the legitimate state interest in legislating morality, and warned that the majority’s holding called into question “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” He also called the opinion “the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
In responding to the brave Princeton student, Duncan Hosie, who asked about his comparison of homosexuality to bestiality, Scalia was characteristically unrepentant. “If we cannot have moral feelings against homosexuality, can we have it against murder?” Scalia said, according to the Los Angeles Times. “Can we have it against other things? I don’t apologize for the things I raise.” (MSNBC did an extended segment on the flap, featuring Hosie and Georgetown University law professor Jonathan Turley.)
It’s safe to say that Scalia, an avowed Catholic, is not likely to receive huzzahs at his local Gay Pride march. But does his apparent approval of “the moral opprobrium that has traditionally attached to homosexual conduct” mean that he should not be part of the court that decides the constitutionality of gay marriage?
I put the question to six prominent Supreme Court litigators. They were unanimous: There’s no reason whatsoever for Scalia to recuse himself from the gay marriage cases the court has agreed to review. Even George Washington University law professor Alan Morrison agreed — and he famously earned Scalia’s enmity when, as counsel to the Sierra Club in a 2004 case against former vice president Dick Cheney, he moved for the justice’s recusal, citing Scalia’s duck-hunting trip with Cheney. According to all of the lawyers I talked to, Scalia’s dissent in the Lawrence case does not suggest he cannot be impartial in the gay marriage cases. After all, if we were to assume that the justices’ prior rulings were grounds for recusal, every justice would be able to hear only one case on any particular issue. That would leave a notably depleted bench for recurring Supreme Court issues like affirmative action and campaign spending, to name just a couple of examples. “You can’t recuse somebody because they’ve expressed prior views in judicial opinions,” Morrison said.
To argue otherwise would undermine the authority of the court. As Scalia himself noted in an opinion denying the Sierra Club recusal motion, there’s a high cost to the law when any justice steps aside because there’s no one to take his or her place. “The court proceeds with eight justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case,” Scalia wrote. He went on to quote from the Supreme Court’s 1993 statement of recusal policy: “We do not think it would serve the public interest to go beyond the requirements of the statute…. Even one unnecessary recusal impairs the functioning of the court.”