Scalia: Judges Should Not Be "Mullahs of the West."

By:  Jack Kenny
Scalia: Judges Should Not Be "Mullahs of the West."

Judges are not fit arbiters of moral issues, Justice Scalia said in a speech titled, "Mullahs of the West: Judges as Moral Arbiters."

Only days before the U.S. Supreme Court is expected to issue rulings on two controversial cases involving same-sex marriage, Justice Antonin Scalia told a state bar association that judges are not fit arbiters of moral standards, the Charlotte Observer reported. Speaking in Asheville Friday at an annual meeting of the North Carolina Bar Association, the veteran jurist argued against what he described as a growing belief in the role of the "judge moralist" in deciding a wide array of moral and ethical questions, including abortion, doctor-assisted suicide, the death penalty, and same-sex marriage. Judges are not experts on moral issues and many of the questions brought to the court have no "scientifically demonstrable right answer," Scalia said in a speech titled, "Mullahs of the West: Judges as Moral Arbiters."

The Supreme Court is expected this week to announce decisions on two much-watched and highly publicized cases concerning same-sex marriage. One is a challenge to the federal Defense of Marriage Act (DOMA) that defines marriage in federal law as a union between one man and one woman. The other is a suit alleging that California's Proposition 8, adopted by referendum in 2008, violates the constitutional guarantee of "equal protection of the laws" by denying marriage to same-sex couples. While not addressing either case in his remarks to the bar association, Scalia has, both in prior speeches and in his court opinions, often expressed a willingness to leave moral issues with the states and to prevailing community standards, rather than having them decided by the national judiciary. Known for his belief in interpreting provisions of the Constitution according to the "original intent" of its authors, Scalia acknowledged during the question-and-answer segment of his presentation that many judges and legal scholars favor interpretations of a 'living Constitution" that embodies "evolving standards of decency." The courts are often confronted with new issues and arguments, he conceded, but he said they should rule according to constitutional principles as understood and ratified in the adoption of the original Constitution and subsequent amendments. Most moral issues, he said, are not new, though popular opinion concerning them may change. He questioned "the propriety, the sanity" of having such "value-laden" decisions "made for the entire society by unelected judges," warning: "We have become addicted to abstract moralizing."

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