Scalia: Judges Not Qualified to Legislate 'Homosexual Sodomy'

The infamously cantankerous senior-most justice on the Supreme Court offered his unfiltered opinion to a collection of lawyers in Aspen, Colo. this weekend.

BY Sunnivie Brydum

July 22 2013 12:39 PM ET

Conservative Supreme Court Justice Antonin Scalia told a group of lawyers in Colorado this weekend that the Holocaust was brought about, in part, by judicial activism, and that judges shouldn't be policymakers. 

Speaking to a group of attorneys from the Utah State Bar Association gathered at Snowmass Village in Aspen, Colo., on Saturday, Scalia reaffirmed his belief that the U.S. Constitution is a "static" document that should be interpreted strictly as it was written. Calling himself a strict "originalist," Scalia rejected arguments that the Constitution is a "living" document that evolves with societal progress. 

As such, he argued, elected officials should be the ones to determine society's views on moral issues like abortion, capital punishment, and gay sex between adults, rather than the nation's highest court. 

"Who in a democratic society should have the power to determine the government’s view of what natural law is?" Scalia asked, according to the Aspen Times. "In an open, democratic society, the people can debate these issues."

Scalia also lamented past judicial decisions affirming the legality of "homosexual sodomy," referencing the court's landmark 2003 decision in Lawrence v. Texas, which effectively legalized private sexual behavior — including anal and oral sex or "sodomy" — between any two consenting adults. Scalia wrote a scathing dissent in that decision. 

"I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged," he said on Saturday, reportedly earning a few laughs from the Utah attorneys. "Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges."

Scalia opened his speech, which was titled "Mullahs of the West: Judges as Moral Arbiters," by claiming that Nazi Germany came to power in part because judges began to reinterpret founding documents, distorting the workings of a democratic society, reports the Times.

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