At some point in late spring or early summer, the Supreme Court will issue two judgments affecting the way our legal structures--and, to some extent, our society as a whole--view same-sex marriage. Will the Court rule that the federal Defense of Marriage Act (whereby federal institutions must refuse to acknowledge and, most significantly, perhaps, accord financial privileges to, same-sex marriage partners) is unconstitutional--as the Obama administration has already determined (and therefore refrained from defending DOMA in court)? And will this same court agree with the federal Ninth District's ruling that California's Proposition 8 (amending the state constitution to prohibit same-sex marriage) is unconstitutional? Or, alternatively, will this Republican-dominated court rule that both DOMA and Proposition 8 ARE legitimate and legally binding upon all those subject to the Constitution of the United States?
Well, I could do a lot of quibbling here, but if by "morality" we mean "right" (i.e., "good," "useful," "productive") conduct, then it seems entirely logical that the advancement of such right-doing (and the prevention of corresponding wrong-doing) should, indeed, be enshrined as the fundamental principles of our social contract (Constitution).
The problem, obviously (as Scalia's comparison makes clear), is that "good" conduct must be measured according to some particular yardstick, standard or paradigm. And, alas, in our diverse society, we cannot seem to agree upon what standard(s) we should use--apples or oranges or prunes. The Christian Bible (Scalia's referent)? The Enlightenment notion of Natural Rights (the "inalienables" of the Declaration of Independence)? The ancient conservative belief in Tradition For It's Own Sake (what we've "always" done)? Muslim Sharia Law? Or, ideally, some other, more universally "rational" standard?
Forgive me, but I need to do a bit of personal birdwalking here--just to help clarify my thinking about several of the possible standards of morality I have just mentioned.
Sometime about a decade ago, as I was slowly and painfully shedding my beliefs in supreme beings and universal, absolute "goodness," I also stopped clinging to the comfortable Jeffersonian illusion that certain "inalienable" human rights are built into the physical laws governing the universe. No, it seems highly unlikely that there is some clockwinder god "out there." There just is no almighty power beyond the universe that has shaped the universe and decreed what is good and bad for all that lives and moves within the universe; in short, no categorical authority against which every movement of the universe can be measured and judged as "right/good" or "wrong/bad." Things just are and they function in accordance with their contingent nature, coming, going, living, dying, evolving without any externally determined plan.
So I reject both of the types of morality most frequently mentioned: Natural Law and Religious Commands. The universe doesn't care what piddly little humans do or don't do, and there is no God who has dictated holy writs telling us whether we can sell our sisters into slavery--or not; whether we can eat bacon--or not; whether we should throw our children into volcanoes--or not--whether we must have children--or not--whether we are obliged to cut off our foreskins--or not--whether we are allowed to have multiple spouses--or not--and, finally (for the present argument), whether any spouse we marry can be same-sex--or not. We are on our own!
So, as I said earlier, I must reject any absolute morality based upon either Natural Law or Categorical Religious Commands which, as law professor Brian Leiter says, are"insulated" and "unhinged" from evidence and reason--and which cannot, therefore, be validated by any objective criteria.
This does not mean, however, that I reject the notion of a morality that is founded on evidence and reason. Here I take my cue from Sam Harris, author of The Moral Landscape, who argues that the only moral framework worth talking about is one where "morally good" things pertain to increases in the "well-being of conscious creatures." Such a morality could not be derived from nonexistent "natural" universal laws--but it could, and must, be anchored in the nature of our species--in what is good for us as human beings--in what will advance us, move us forward, guarantee our survival in a universe that is perfectly indifferent to us.
So that is our good, our morality--nothing decreed by a divine authority, nothing inscribed (like karma) in the very structure of the universe--but merely WHAT IS GOOD FOR HUMAN BEINGS (it might not be good for extraterrestrials or even for any of the other species with whom we compete for survival--viruses or bacteria or killer bees).
If I had my 'druthers, we would somehow agree that our Constitution (indeed, all constitutions) should be based upon this objective and scientific criterion: morality is that which serves to advance the well-being of conscious creatures (and, concomitantly, immorality is that which serves to impede or inhibit the well-being of conscious creatures).
Consequently, were this the morality Justice Scalia espoused, he would of course be justified in condemning murder as immoral, since murder, except in very special circumstances, can be proved (by evidence) to be injurious to the well-being of sentient beings. Of course, Scalia's morality is not evidence-based. Instead, it is a categorical, religious morality--based on the Bible, not on evidence, not on empirically verifiable criteria. By coincidence--and purely by coincidence, the bible-based stricture against murder dovetails with evidence-based morality. But the same cannot be said of Scalia's judgments regarding homosexuality/gay marriage. These hurtful and hateful "moral" imperatives--plainly intended to restrict the self-actualization of consenting homosexual adults--whose actions in no way harm the commonweal--serve no constructive purpose in a legal structure founded on "advancing the well-being of conscious creatures."
Murder and homosexuality? Apples (subjective, Bible-based morality) and oranges (objective, evidence-based morality). Murder is immoral for both apples and oranges. But homosexuality and homosexual marriage are immoral only for apples. Rotten ones.