Justice Scalia is a smart guy, which is why it is so painful to hear him say stupid things simply because he is so warped by his ideology. I don’t mean things that I disagree with; I mean things that are actually stupid.
The most recent quotation of his making the rounds is this: “If we cannot have moral feelings against homosexuality, can we have it against murder?”
This is a stupid comparison to make. Unfortunately, it’s so stupid that a lot of people end up criticizing it stupidly, as well. It’s the kind of stupid that sucks all of the air out of the room and makes everyone stupid.
When arguing against this kind of stupid analogy, it’s not enough to simply say “being gay and being a murderer are completely different!” It’s not enough to be offended at the fact that being gay is “nothing like” being a murderer. That is an emotional argument; that is not a logical argument.
The fact is, some analogies are good analogies and some analogies are bad analogies. There has to be an analysis of why this is a bad analogy and a bad argument. There has to be a rational framework for understanding why some analogies fail, while others succeed.
So let’s do that.
Arguments by analogy, on a general level, either explicitly or implicitly look something like this:
A and B have X in common, therefore it follows that they have Y in common.
There are 4 elements in this. There are the two things that are being compared: A and B. There is the premise, or thing that you are saying they have in common: X. Then there is the conclusion, the thing that you are extrapolating that they have in common: Y.
Let’s look at some examples we see in politics.
Example 1. Sexual orientation and race (ethnicity) are both genetic. Therefore, since it is not right to discriminate based on race (ethnicity) it is also not right to discriminate based on sexual orientation.
Example 2. Homes and governments both have budgets. Therefore, the things that you do to fix a deficit in a household budget are also what you should do when you are trying to fix a deficit in a government budget.
Example 3. The belief that homosexuality is acceptable and the belief that homosexuals should all be put to death are both opinions. Therefore, since we are told that we must tolerate those who think homosexuality is acceptable, we must also tolerate those who think homosexuals should be put to death.
Example 4. The belief that homosexuality is wrong and the belief that murder is wrong are both moral judgments. Therefore, since we can make laws based on the belief that murder is wrong, we should also be able to make laws based on the belief that homosexuality is wrong.
The last one, in case you haven’t noticed, is simply a more explicit and rigorous version of the argument implied by Scalia’s question: “If we cannot have moral feelings against homosexuality, can we have it against murder?”
All of these are arguments by analogy. Intuitively, you probably feel that some of these are good arguments, while others are bad arguments. You may feel that some fall somewhere in between.
The question is: why. What is it that makes some of these good arguments and others bad arguments?
Let’s look at Example 1. Using the variables in the formula above,
A = sexual orientation
B = race (ethnicity)
X = …is genetic
Y = …should not be the basis for discrimination
Thus, based on the premise (X) that both sexual orientation and race are genetically determined, the conclusion (Y) is that neither should be used as a basis for discrimination.
Is the conclusion valid? The answer to this depends on two things: First, is the premise (X) true? And second, is the premise relationship (X) closely enough related to the conclusion relationship (Y) that you can reasonably conclude Y from X?
I will phrase that second item another way: Is the conclusion (Y) something that is tightly connected enough to the premise (X), so that (X) is all that you need to know in order to conclude (Y) and no other factors matter?
Polling suggests that in this time and place, the year 2012 in the United States, most people consider Example 1 to be a good argument. The reason most people see it as a good argument is that most people both believe the premise (i.e. that being gay is genetic) and they believe the connection between X and Y (i.e. that when something is genetic that is a good enough reason for it to not be discriminated against).
Some people try to mount arguments against Example 1. One valid way to argue against it would be to try to produce evidence that being gay is not genetic–in other words, call into question premise X. Another valid way to argue against it would be to try to produce evidence against the relationship between X and Y–in other words, to try to show that just because something is genetic does not mean that you should never discriminate based on it.
However, there are also examples of bad (or invalid) ways to dispute Example 1. The one I hear most often is this: “This is a bad analogy because being gay and being black are totally different! Black people were once slaves, and gay people never experienced that! Therefore, you cannot make any comparison between the two!”
This simply isn’t a logical way to refute this argument. Example 1 isn’t saying “the experiences of gay people and the experiences of black people are exactly the same in every way.” It is only making a claim about discrimination. The fact that the two groups have different experiences and histories is not relevant. All that matters is whether (X) is true, and whether (Y) reliably depends on (X).
Let’s skip ahead to Example 4: the Scalia analogy. (I’ll leave Examples 2 and 3 as “exercises for the reader”, as they say in textbooks.)
A = being gay
B = being a murderer
X = …is something (some) people think is morally wrong
Y = …is something society should be able to make laws against
Using the formula I put forth before, these are the variables for the Scalia argument: Because both being gay and being a murderer are something that some people think is wrong (premise), therefore being gay and being a murderer are both something that society has a right to make laws against (conclusion).
If you think this is a bad analogy, the question that I put to you is this: Why is this a bad analogy?
It’s not enough to say, vaguely and abstractly, that being a murderer and being gay are “different”. Let’s actually make this into a real, concrete argument.
Can we question whether the premise (X) is true? Not really. It’s self-evidently true that some people think that being gay is wrong.
Can we question the relationship between the premise and the conclusion? Absolutely. This is specifically where the stupid in Scalia’s argument lies.
We have never, ever lived in a theocracy. Our country is founded on the principle that laws are rooted in our constitution, not in the Bible or in any other religious text or tradition. Moreover, our constitution explicitly recognizes diversity of religious beliefs, and requires that all be legally accepted.
Theocracy, moreover, could lead to a direct conflict with other freedoms enshrined in our constitution.
For example, imagine that there is a small town in the United States where people feel that it is morally wrong to use the word “God” negatively or capriciously. Does it follow that they have a right to make laws against using the word “God” that way?
No, that would be a violation of the tenet of freedom of speech.
Suppose that there is a county in the United States where people feel that it is morally wrong to own a gun. Does it follow that they have a right to make laws against anyone owning any guns at all?
You better believe that conservatives would have something to say about that!
Suppose that there is a town in the United States where people feel that it is morally wrong for newspapers to report anything that could possibly embarrass the mayor of that town. Does it follow that they have a right to make laws restricting what the press can print?
No: once again, such laws would violate our constitution.
Suppose the majority in one state believes that it’s immoral to not be a Christian. Can they make it illegal to not be a Christian? No.
Suppose the majority in one state believes that it’s immoral to be black. Can they make it illegal to be black? No.
Again and again, we can find situations where people thinking that something is morally wrong (X) is not sufficient to conclude that it can be legislated against (Y).
There is no connection between X and Y.
The sad thing about all of this is that Scalia is a smart man. I’m sure he knows all of this. He is therefore deliberately and willfully making a bad argument just because he is trying to push a conclusion. That is the worst kind of intellectual dishonesty.
But he is also betting on you getting so flustered by this argument that you answer emotionally, instead of logically. So don’t fall for that.
The reason that this is a bad argument is not that it is offensive to compare gays with murderers.
The reason that this is a bad argument is that our constitution tells us that “feeling something is morally wrong” is not sufficient for making something illegal.