NewsNation | December 11, 2012
>>> welcome back. as the supreme court prepares to take up the issue of same-sex marriage, yus tis scalia finds himself defending his writings. there's a report that a rare public appearance yesterday scalia was asked by a gay student about prior writings comparing laws barring sodomy and those of murder. scalia said he is not equating sodomy with murder but drawing parallels between the bans. he said, quote, i don't think it's necessary but it's effective. it's a form of argument that i thought you would have known which is called the reduction to the absurd. house republican leaders have had a uniform response to the supreme court 's decision to take up gay marriage . that response, silence. joining me now new york university constitutional law professor kenji oshini and reporter for politico, lois romano . the appearance yesterday, as i noted, the question that the student posed to him, what are we to make of his prior writings and the future decision from the high court ?
>> right. so, i think this is a direct allusion back to his scathing dissent in the 2003 case of lawrence versus texas.
>> correct, yes.
>> struck down the texas sodomy statute and he said, you know, if we are not allowed to make moral judgments, if the legislature's not allowed to do that, we're on a slippery slope here. there's an easy way to drive a stake in that slippery slope based on the harm principle . you know, we can see that murder harms people. it is not as clear that same-sex marriage will harm anybody. also, there's something interesting where he says if we're deprived of the argument how can we not afford the same-sex couples be allowed to marry?
>> it's interesting, a part of the comments he said the constitution is not an organism but a legal text for pete's sake. those are his words and said unless you give the laws the meaning of those that enacted them you're destroying democracy. that was the latest comment in addition to what we quoted.
>> yes. i just have to say that this is actually a long standing debate within constitutional law and the only thing to say here is to say framers to careful to say equality or liberty. if they wanted to specify the equality they cared about or the liberty they cared about they could have enumerating them more specifically so the fact that they jumped up to that level of generality i think makes it really clear they intended to leave the words to the intelligence of future generations to fill in with circumstances that could not have been themselves predict.
>> regarding the justices and justice scalia , you have the article in politico talking about the response or lack thereof of members of the gop and you have advocates or conservative advocates who say and have noted the silence so this is not coming from the quote/unquote mainstream media or liberal media as some say but conservative advocates.
>> i think what you are seeing is a couple of things here, tamron, and that is that recent polls have showed that the public just isn't hot on this issue. they sort of think that there should be rights for gays and so, you know, the lawmakers do not want to use their capital on it probably. i'm guessing. the other thing is the fifth vote on romer versus evans for gay rights was justice kennedy and he is often the swing vote . also what goes unreported a lot is that justice roberts actually worked on romer when he was a lawyer at hogan and hartson and he worked in favor of gay rights , so all of this taken together maybe they see the handwriting on the wl and think maybe the court is going to not uphold doma.
>> is it possible for the gop to remain radio silent? that was the description someone gave, as we move forward here.
>> yeah. i think it is. well, they have -- they do have a lawyer that's going to have to speak so we'll hear a little bit about their thinking on that but --
>> also, you know, the white house is not going to defend it. the solicitor general is not going to defend the law which is very unusual.
>> all right. lois, thank you very much. kenji, we'll be talking with you a lot in the days and months ahead. thank you.
>> thank you.