Two Odious Comparisons (Updated)

UPDATE:

For an interesting and different take on Scalia’s “elevation of all moral disapproval to the same level to the extent that they can be legislated by a politically elected body or the populace” and on why Scalia, “at the very least, [should] recuse himself from the upcoming cases regarding the Defense of Marriage Act and the overturning of California’s Proposition 8,” please read here

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Original Post:

If a Supreme Court Justice can compare homosexuality to murder and bestiality, it should be perfectly proper and legitimate for a U.S. Air Force Commissioned Officer on active duty to tie the repeal of Don’t Ask, Don’t Tell (DADT) to bestiality and to equate bestiality to same-sex relationships between military service members.

Of course not, you say?

But, before putting words — judgments — in your mouth, it is only fair to explain and put the two cases in perspective.

In the better-known case, Supreme Court Justice Antonio Scalia appeared to reiterate his opinion, “expressed in a 2003 dissent, that a law banning sodomy is on par with laws forbidding bestiality or murder.”

Dana Milbank at the Washington Post:

“If we cannot have moral feelings against or objections to homosexuality, can we have it against anything?” Scalia said when a gay undergraduate pressed him on his views in support of anti-sodomy laws. He defended his noxious comparison: “I don’t think it’s necessary, but I think it’s effective.”

“I’m surprised you weren’t persuaded,” he told the gay student of his reductio ad absurdum comparison.

Scalia is right: His comparison is unnecessary. And he shouldn’t be surprised that Americans — including his colleagues on the court — are not persuaded.

[The AP quotes Scalia’s response at Princeton University as follows:

"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?"]

Discussing Friday’s Supreme Court’s announcement that it will take up gay marriage in the spring, Milbank points out that Scalia finds himself with a growing list of foes against his “medieval views” on gay rights:

[P]ublic opinion, empirical evidence, his own writings and an increasing number of conservative legal thinkers. Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the 2nd Circuit, a Republican appointee and a conservative, wrote in an opinion striking down DOMA that “the Constitution delegated no authority to the government of the United States on the subject of marriage.”

He concludes, “This would appeal to an ‘originalist’ such as Scalia — if he weren’t more concerned with bestiality.

Others were more direct.

ThinkProgress says, “In a Princeton University speech Monday, Justice Antonin Scalia defended his opposition to LGBT equality and his previous comments equating homosexuality with murder and bestiality.”

Many will say that Scalia’s views and remarks are being taken out of context. Perhaps so. Scalia himself has said that he is not equating sodomy with murder but drawing a parallel between the bans on both.

But, in my opinion, there are no ifs and buts about what an active duty U.S. Air Force officer publicly and shamefully says about gays and lesbians in the military.

First, some background.

On November 28, the Stars and Stripes published an article reporting on the arrest of a Camp Lejeune Marine Sergeant accused of “engaging in sexual behavior with dogs in Jones County.”

Specifically, the Marine was charged by the Jones County Sheriff’s Office “with seven counts each of felony crimes against nature and misdemeanor solicitation for crimes against nature” after a concerned citizen accused the Marine “of engaging in sexual behavior with neighborhood dogs, as well as viewing internet pornography in front of his minor children.”

The report also mentions that “The Marine Corps had previously issued a military protective order on Nov. 20, followed by the issuance of an N.C. Domestic Violence Protective Order on Nov. 21, to protect Harpel’s spouse and children after he allegedly made threats against them.”

There is absolutely nothing in this report about gays and lesbians in the military or about anything even remotely resembling the repeal of DADT.

Yet, a U.S. Air Force active duty Major who calls himself the “Christian Fighter Pilot,” in a blog called “God and Country,” has this to say referring specifically to the actions of the Marine:

US Marine Arrested for Indecency with Dogs

Apparently, he thought the repeal of DADT meant he didn’t have to live a lie, and wouldn’t be punished just for loving someone…er, something…whatever. Though he hasn’t yet been put on trial, much less convicted, the Marines said

The actions of Staff Sgt. [Marc David] Harpel are contrary to the high standards of personal conduct and performance expected of Marines and will not be tolerated.

Ironically, the UCMJ prohibition on bestiality was almost repealed last year, along with the ban on homosexuality.

In a letter addressed to the Secretary of the Air Force and United States Air Force Chief of Staff, retired U.S. Air Force Lt. Col. Edith A. Disler, Military Religious Freedom Foundation’s Director for LGBT Affairs, writes:

Dear Secretary Donley and U.S. Air Force Chief of Staff Gen. Welsh,

Every fiber of my logic screams that Air Force Major Jonathan Dowty just isn’t worth the time it’ll take to write this letter. I can easily reason that the Air Force deserves whatever public affairs nightmare Major Dowty will eventually bring on, for the PA “train wreck” is not a matter of “if,” it’s a matter of “when.” But, in equating bestiality and same sex relationships Major Dowty has personally insulted not just all lesbian, gay, and bisexual people, not just personnel he must work with (theoretically “lead”) every day, and not just me. Please see the attached link and screenshot of Major Dowty’s post in question. Major Dowty has, by virtue of his implication, cast cowardly assertions which imply that I, my partner, and our children are but animals. So, I must speak out.

I served the Air Force as a commissioned officer for 25 years, having been an ROTC cadet and a Civil Air Patrol cadet for the nine years before that. I’m the great grandchild of a Baptist preacher, the grandchild of a Lutheran minister, the child of a Lutheran minister, and the first cousin of a Methodist minister. Never did I confuse my responsibility to respect the Constitution and take care of the people in my charge with my religious convictions or conventions. But apparently officer training, professional development, and leadership are not what they used to be. Major Dowty seems confused as regards his responsibilities to his people and his Constitution, and not one Air Force professional, apparently, has the courage to set him straight. As a result Major Dowty clearly sees himself as superior to the directives of Department of Defense and Air Force leadership. He also clearly sees himself as superior to the teachings of Christ, for the rants and insults cast by the “Christian fighter pilot” are as un-Christ-like as any I’ve ever seen or heard.

We all know that when we swear our oath of commissioning we limit our freedom of speech, and that our promise to lead our people means that we lead them equally and without prejudice, regardless of our personal convictions. Given Major Dowty’s readiness and willingness to disregard policy and leadership, do you REALLY think he’s conducting himself as an Air Force officer should? I’m immensely disappointed that the Air Force I served for so long has failed in its duty to take corrective action. This lack of disciplinary action gives the impression that Air Force leadership is cripplingly weak and being held hostage by a brand of Christianity which has pathologically misinterpreted the words of Christ. I have seen Air Force commanders punish so many enlisted members and officers for so much less, but Major Dowty’s commanders seem paralyzed to act.

On behalf of the 654 lesbian, gay and bisexual service members represented by the Military Religious Freedom Foundation (MRFF: http://www.militaryreligiousfreedom.org), in order to send a supportive message to all people serving in the Air Force, and in the name of decency, we insist that Major Dowty’s commanders take swift and severe corrective action under Air Force Instruction (AFI) 1-1 and the Uniform Code of Military Justice.

Respectfully,

Edith A. Disler, PhD, MBA, Lt. Col. (USAF) Ret.
MRFF Director for LGBT Affairs,
Advisory Board Member,
Military Religious Freedom Foundation

In the military we would have been tempted to add, “Stronger message to follow,” but Disler’s letter could not be stronger and more apropos. It just remains to be seen whether the military will take just as strong — and responsible — action.

  

Author: DORIAN DE WIND, Military Affairs Columnist

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16 Comments

  1. How about considering consent. Which bestiality and murder don’t have, and sodomy does. We should pass laws banning actions from consenting adults that don’t harm others, because you don’t like it or some holy book says to? Not in keeping with the finest traditions of a nation that bills itself constantly as the leader of the free world and a beacon of freedom to others.

  2. I continue to contemplate how this low level of words can be uttered by a Supreme Court Justice… (shaking head)

  3. Huh, reduction to the absurd, eh? Well, the argument here is that our legislators can make laws out of personal moral judgements toward behaviors that are (a) none of anyone’s business, and (b) hurt nobody. If that is the case, can we then outlaw the wearing of make-up and bikinis? I know these adornments are found immoral by some. May we outlaw both the giving and receiving of tattoos, which many find morally distasteful, even if both the artist and the canvas fully consent to the tattoo being drawn?

    It is baffling and downright scary that this man is one ninth part of what is supposed to be the most powerful set of judicial minds in the country. I have no problem calling him a asshole, regardless of the respect his post usually commands. Respect is earned.

  4. I’m sorry that Scalia strikes me as a pompous ass. It’s a reflection on me that I allow it to make me see him that way.

    I’d love to see him debate his philosophical point of “reduction to the absurd” with a philosopher.

  5. Slamfu got itin one. :-)

    Scalia is unfit to be a Justice.

  6. Agree with all the comments so far. Slam gets to the heart of it with “consent”. Scalia is unfit to be a supreme, but that’s old news.

  7. Where does that leave prostitution?

  8. Where does that leave prostitution?

    In Nevada.

    Consensual sex between adults really isn’t the business of the federal government after all, but prostitution is a mix of consensual sex and commerce. Nevada – for the most part – has it right on prostitution. Ignore the sex part, and put some regulations on the commerce part.

  9. Commerce as well as health & safety, of course …

  10. I have to agree with cjjack and Barky on their answer to zusai.

  11. Anyone who troubles themself to read Scalia’s dissent in ‘Lawrence v Texas (2003)’ will discover that Scalia is objecting to the process employed by the liberal wing of the court, rather than the result.

    With cases involving Roe v Wade, the liberal wing insisted on the importance of precedent and established cases. But with Lawrence,the court rubbished “Bowers v Hardwick (1986)”, a case a mere seventeen years old.

    And yes, Bowers relied in part on the notion that government have legislated morality from time immemorial. A snippet:

    The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis.

    Scalia’s point is that when people’s view of morality changes the proper venue is the legislature, not the courts. Change the damn law!

    That led to his famous analogizing (NOT equating!) of homosexuality with other things the objection to which seems to be moral:

    “laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”

    I guess obscenity might have a victim, namely, any audience that can’t remove themselves. Of course, back in the day Lenny Bruce was busted even though his audience knew just what to expect.

    Prostitution has a commerce element. Bestiality? Depends on ones view of animal rights and cruelty (barnyard animals have it tough, I imagine.) The other examples might well involve consenting adults (adultery in an open marriage, for example). Yet they are illegal. Should all those laws be struck down too? Criminalizing adult incest might be the hardest to justify.

    All that said, the real drama in the Constitution occurs when a formerly tiny minority gains enough of a voice to demand the sorts of protections the Constitution normally provides to minorities. Gays are winning that battle right now. Mormons, despite a seemingly protected claim of religious freedom, obviously lost the bigamy tussle. Oops.

    As to the Air Force officer, he seems to be equating bestiality with homosexuality by suggesting the legal treatment should be the same. He doesn’t seem to be focusing on the similarity in the underlying legal foundation, which was the basis for Scalia’s analogy.

  12. The majority of Americans now favor marriage equality so apparently they are not affronted by the “immorality” of gay sex. Morality is a subjective concept– remember we had Prohibition because many considered the consumption of alcohol to be immoral, and for many years it was illegal to purchase any kind of contraception because premarital sex was also a societal no no. Go back further and we have the blue laws where working, drinking, shopping, etc etc on Sunday was banned.
    I think that whatever occurs between consenting adults behind closed doors should be their business and not the government’s. Conservatives claim to be for greater liberty, yet prove their own hypocrisy when it comes to social issues.

  13. All that said, the real drama in the Constitution occurs when a formerly tiny minority gains enough of a voice to demand the sorts of protections the Constitution normally provides to minorities.

    God protect us when a “tiny minority” gains enough of a voice to demand equal rights and equal protection under the law and under the Constitution.

    As to the Air Force officer, he is cowardly using his position to defame, demonize and degrade subordinates, knowing that they have not much of recourse under the UCMJ.

    The post did not draw any conclusions on Scalia — it quoted some opinions — and actually said:

    Many will say that Scalia’s views and remarks are being taken out of context. Perhaps so. Scalia himself has said that he is not equating sodomy with murder but drawing a parallel between the bans on both.

    It’s as simple as that.

  14. Scalia’s point is that when people’s view of morality changes the proper venue is the legislature, not the courts. Change the damn law!

    I get that, and understand the point. But it’s a wrong point.

    We have a three-branch system of government. This affords us two things: 1) keeps the power required to dominate the populace from consolidating; and 2) allows a mechanism for one branch of government to correct the mistakes of another. The latter is where the notion of “checks and balances”comes from.

    If the court always rules “the law is the law”, then all they are, in the end, is Congress’ proofreader. That is not their only role. They are there to prevent Congress or any of the States from exceeding the authority given to them by the Constitution.

    Scalia is wrong.

  15. Sorry about the bad formatting. TMV still doesn’t work well with iPad…

  16. Agreed, Barky, very good point. One of the main reasons the SC exists is to resolve disputes between the laws and the Constitution.

    It’s pretty clear to most that laws that tell us how we’re allowed to have sex go way beyond government overreach. I think it should be noted, as well, that sodomists are not necessarily a “tiny minority”. At the risk of sounding crass, you don’t need to be a gay man to be a sodomist, and it’s estimated that nearly half of sexually active people under the age of 40 (although this was a few years ago) have done it at one point or another.

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