ThinkProgress

  • September 26, 2011

    by Jeremy Leaming

    Over the weekend Supreme Court Justice Antonin Scalia at Duquesne University Law School highlighted his belief that religious institutions have a constitutional right to flout official policy prohibiting discrimination against gays, and offered yet another defense of his method of constitutional interpretation, originalism.

    Duquesne University describes itself as a “Catholic and Spiritan University.”

    Scalia said, according to the Pittsburgh Tribune-Review, “Our educational establishment these days, while so tolerant of and even insistent upon diversity in all other aspects of life seems bent on eliminating diversity of moral judgment – particularly moral judgment based on religious views."

    He cited as examples, the newspaper reported, “attempts to sue a religious university in Washington, D.C., for offering only same-sex dorms and other attempts by a law school association to bar schools that discriminate against homosexuals.”

    Adding, “I hope this place will not yield – as some Catholic institutions have – to this politically correct insistence upon suppression of moral judgment, to this distorted view of what diversity in America means.”

    In a post for ThinkProgress Ian Millhiser says the justice’s “insistence that religious institutions enjoy a special right to discriminate against gay people is particularly troubling, and it has worked its way into decisions on the Supreme Court. In Christian Legal Society v. Martinez, a conservative Christian student group claimed the special right to have a state university subsidize their organization even though it refused to comply with the university’s anti-discrimination policy. Scalia joined a four justice dissent that would have given anti-gay groups exactly that right.”

    At the Duquesne event Scalia also defended his application of originalism “against those who say his approach is too ideological or rigid."

    Last week, Scalia, at a Constitution Day event at the American Enterprise Institute, was not in a defensive posture over originalism. Instead he chided so-called “living constitutionalists,” as jurists who flaunt the Constitution’s text to reach decisions that have expanded privacy rights.

    For example, Scalia bemoaned the Supreme Court opinions that overturned a law criminalizing sodomy, and that held women have the right to abortions.  He’s lambasted the opinions in Lawrence and Roe before, but during his talk at AEI, had added some more thought to what he dubbed the “Constitution-as-aspiration-approach.”