ASHEVILLE, N.C. — Just days before the U.S. Supreme Court is expected to rule on two landmark cases involving same-sex marriage, Justice Antonin Scalia on Friday cited homosexuality as a moral issue that the American people, not judges, should decide.
Speaking at a North Carolina Bar Association meeting on Friday, Scalia said that judges shouldn’t venture into the moral components of issues such as abortion, the death penalty and same-sex marriage because they’re no more qualified than anyone else.
“I am questioning the propriety, the sanity of having a value-laden decision such as this made for the entire society by unelected judges,” Scalia told about 400 attorneys and judges attending the annual meeting. “We have become addicted to abstract moralizing.”
The outspoken conservative has said he believes the Constitution should be interpreted as it would have been understood when it was adopted in the late 1700s.
But the 1973 Roe v. Wade Supreme Court decision which legalized abortion until a fetus is viable outside a woman’s womb was perhaps the prime example of the high court believing the Constitution should adapt to changing times, Scalia said according to the Asheville Citizen-Times.
Article continues below“Beginning with the cruel and unusual punishment clause of our Eighth Amendment, we developed the doctrine that the meaning of the Constitution could change over time,” Scalis said. “We held laws against private consensual sodomy, laws that existed in perfect conformity with the Constitution for over 200 years, to be impermissible.”
But under “a regime of static law,” it wasn’t difficult to decide whether there was a right to an abortion, assisted suicide or “homosexual conduct” under the Constitution, Scalia said. He titled his speech “Mullahs of the West: Judges as Moral Arbiters.”
Scalia acknowledged that his opinion is not universally shared. Many legal scholars and judges – including some of his colleagues on the Supreme Court – believe in a “living Constitution” that reflects “evolving standards of decency.”
Scalia, 77, has served on the high court since 1986.
The court is expected to rule within days whether on the constitutionality of Proposition 8, California’s voter approved ban on same-sex marriage, and a challenge to the constitutionality of the federal Defense of Marriage Act.