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N.C. lawyers listen as Justice Scalia bemoans ‘moral arbiter’ on eve of gay marriage ruling

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  • Scalia speaks to N.C. Bar Association
  • Annual meeting

    The N.C. Bar Association is a nonpartisan organization of lawyers, paralegals and law students. Its annual meeting is underway at the Grove Park Inn in Asheville.

    Supreme Court Justice Antonin Scalia, who spoke Friday, owns property in Eastern North Carolina and visits the state regularly.

    Gov. Pat McCrory is scheduled to speak Saturday.



ASHEVILLE With a potentially ground-breaking decision on gay marriage expected next week, Supreme Court Justice Antonin Scalia said Friday morning that he and other judges should stop setting moral standards concerning homosexuality and other issues.

Why?

We aren’t qualified, Scalia said.

In a speech titled “Mullahs of the West: Judges as Moral Arbiters,” the outspoken and conservative jurist told the N.C. Bar Association that constitutional law is threatened by a growing belief in the “judge moralist.” In that role, judges are bestowed with special expertise to determine right and wrong in such matters as abortion, doctor-assisted suicide, the death penalty and same-sex marriage.

Scalia said that approach presents two problems: Judges are not moral experts, and many of the moral issues now coming before the courts have no “scientifically demonstrable right answer.”

As such, he said, it’s a community’s job to decide what it finds morally acceptable, not the courts’.

The justice’s 35-minute speech at the bar association’s annual meeting was met with two rounds of applause, laughter and, afterward, some pointed questions.

During his speech, 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.” This also has given rise to what Scalia decried as a sprawling application of the provisions of human rights and equal protection under the law.

In response to a question, he said he does not ascribe to a Constitution locked away from change. The law must evolve to deal with new phenomena, he said, but it should do so while remaining firmly moored in its founding principles. And most moral issues, he added, don’t qualify as new.

One of those moral debates – gay marriage – is now before the high court. The justices are expected to rule next week on two same-sex cases. One involves the federal Defense of Marriage Act; the other, California’s Proposition 8. Both oppose gay marriage.

A majority of states, including both Carolinas, have same-sex marriage bans in place. But polls show that most Americans now support a gay couple’s right to marry.

Scalia, known for his provocative comments and writings since being appointed in 1986, is barred from publicly discussing pending cases. But during his half-hour speech at the Grove Park Inn on Friday, the 77-year-old frequently listed homosexuality among the issues that should be decided by the public and not unelected judges.

His comments during the March oral arguments for the same-sex marriage cases followed a similar bent. “When did it become unconstitutional to exclude homosexual couples from marriage?” he asked.

His earlier statements about the legal rights of gay couples are even more outspoken. During an October speech to the American Enterprise Institute, Scalia described the death penalty, abortion and “homosexual sodomy” as “easy” constitutional issues. “Homosexual sodomy? Come on. For 200 years it was criminal in every state.”

And in an dissenting opinion from a 2003 case that overturned Texas’ anti-sodomy law, he said Americans have the clear right to enforce traditional moral restrictions against homosexual behavior “to protect themselves from a lifestyle that they believe to be immoral and destructive.”

Raleigh attorney John Sarratt said he expects the thoughts Scalia expressed Friday to be reflected in the judge’s upcoming opinion on gay marriage – that the courts should leave the existing laws alone.

During a question-and-answer period that followed the judge’s speech, Sarratt asked Scalia if he would have taken a similarly hands-off approach to “Brown v. Board of Education,” the legal cornerstone of school desegregation across the country.

Scalia said he would have voted with the majority on the case to create more educational opportunities for blacks. He added, however, that “a good result” doesn’t make for good law. Had the courts not interceded, he said, state leaders would have eventually removed the racial barriers.

The question is when, Sarratt said later. The Raleigh attorney said he enjoyed Scalia’s speech but didn’t agree with its central message.

“I tend to be outcome-based,” he said. “And if the outcome is equality for all people, then I’m for the courts moving in that direction, before the people are ready.”

John Lassiter, a former Charlotte City Council member who was sitting in the front row, said Scalia’s remarks were consistent with his longstanding “originalist” view of the Constitution and a restrained judiciary.

Observer researcher Marion Payner contributed.

Gordon: 704-358-5095
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