Antonin Scalia and the Ethics of "Celebrating Death"

[CN: Irreverent opinions about death]

With the sudden passing of Supreme Court Justice Antonin Scalia this weekend, the Internet has filled up with sentiments about his death. Some people are cheering it, some are mourning it, and some are chastising the people who are cheering it because they find it inappropriate to be happy that someone is dead, regardless of who that person was or what they did.

Obviously, this is causing a lot of conflict, because the women, queer people, and other marginalized folks who are glad that Scalia’s no longer around to deny them civil rights don’t exactly appreciate being told they shouldn’t feel that way, and people who find it really inappropriate to “celebrate death” feel very uncomfortable.

Just to put this out there: I don’t feel any particular way about Scalia’s death. I think that it’ll have some interesting implications for the upcoming election, and I hope that this means that the Supreme Court will soon have a new justice who is liberal or at least moderate, but I don’t really feel anything. I didn’t celebrate his death. I didn’t mourn his death. I don’t have a lot of strong feelings about things that don’t impact me very very personally, and often I don’t even have any feelings about those things, and generally my writing and my activism is shaped by other processes besides my emotions. So. This is not an article about me and my feelings, and I’m not defending myself or my feelings here. I’m making an argument concerning ethics and I’m defending a broad group of people that I’m seeing get unfairly put down right now.

Death is never an easy subject to talk about no matter whose it is, and I think part of the problem is clashing social norms about responding to death. Some people are in the “never speak ill of the dead” camp; others are in the “you can criticize the actions of someone who has passed away but you shouldn’t be glad they’re gone” camp. The most controversial camp is the “I get to feel however the fuck I want about someone’s death and I get to say so on my Facebook page” camp.

I’m not much for relativism in general, but I think it’s worth noting that these different social norms exist and that they are not inevitable or universal. There is no intrinsic reason why saying mean things about someone who has died is wrong. You can claim that it’s bad because it hurts their surviving loved ones, but what if there’s no chance of them hearing those mean things? You can claim that it’s bad because saying mean things about people is just always bad, but then every single one of us is bad and there’s no point in calling the kettle black. You can claim that it’s bad because death itself is intrinsically bad, but the problem is that not everyone sees it that way either.

Personally, I think that life and death are both morally neutral. I think that human life in general does a lot of good and a lot of bad. I think that individual lives can cause a lot of good in the world and a lot of bad, too. I think that individual lives can cause a lot of good for the other lives they touch, but they can also cause a lot of bad. For each person whose death is terribly mourned, there’s probably a person whose death brings relief to those they have abused or otherwise hurt.

As uncomfortable as it is for some people to acknowledge that some deaths come as a relief to those who knew the deceased, there is no one better than that person’s victims to judge the moral value of their lives. Even more uncomfortable to acknowledge is the fact that some deaths bring comfort to the dying themselves. Life is morally neutral; some lives are so full of pain and suffering that death feels like a net good and as horrible as that is for me to contemplate, who am I to invalidate that?

No one in the broad “do not rejoice at death” camp has yet given me a good argument for why rejoicing at death is ethically wrong. They say it makes them look down on the rejoicers, but if you look down on people for their feelings about their oppression, that says more about you than about them. They say it “brings out the worst in people,” with no specifics about what “the worst” is. (Really? Being happy that someone is dead is worse than systematically denying civil rights to millions of people?) They say that death is intrinsically bad so it’s intrinsically wrong to be happy about it, but again, these are not universal values. If you view death as intrinsically bad, that’s a good argument for you to do your best to avoid death and celebrate life. It’s not a good argument for other people to have different feelings.

My own ethical orientation makes it difficult for me to view an action that doesn’t do harm to anyone as unethical, and making someone annoyed or uncomfortable or even a little upset isn’t necessarily the same as doing harm to them. (If it were, it would be unethical for gay couples to hold hands in public places.) The “don’t rejoice at death” camp ends up making a circular argument: rejoicing at death is wrong because it upsets people and it upsets people because rejoicing at death is wrong.

Here someone often argues that Scalia’s family is in mourning and would be very upset at the things that some people are saying. That’s quite possible, although it seems highly unlikely that any of Scalia’s family members are spending this time browsing the social media feeds of random unknowns like my friends and me. (Also, many of us keep our feeds private.) The likelihood of Scalia’s loved ones stumbling on my friends’ Facebook pages seems so low that expecting them to tailor their feeds with this possibility in mind is pretty unreasonable.

I’ve also been hearing a lot of sentiments like, “Well, you get to feel however you feel about his death, but remember that he was also a human being who had people who loved him.” That’s certainly a nice thought; I always try to remember that people I strongly dislike or disagree with are human beings, and maybe that’s why I don’t actually feel happy about his death. (Again, I don’t feel sad about it either.) In general, I agree with the idea that it’s good to humanize people.

But it’s just another one of those vaguely positive and obvious statements that nobody seriously disagrees with. Of course it’s nice to remember that people are human beings, just as it’s generally nice to say “please” and “thank you” and to hold doors for people carrying large objects and to learn about the views of people who disagree with you and to stop and let a car out even when you have right of way because otherwise they’d be waiting to make their turn forever and that would suck for them. It’s just that these things are not always the most important thing for you to do in that moment, and they’re not always accessible for everyone to do, and (I would argue) they’re not ethical imperatives, just nice things to try to do as much as you can.

Notably, Scalia belongs to a category of human being that is least in need of humanizing, because people like Scalia are the least dehumanized people. Unlike those most impacted by his jurisprudence, Scalia has never been dehumanized on the basis of his race, gender, sexual orientation, ability, or other category of privilege or oppression. So, sure, humanize Scalia, but all these condescending exhortations for others to do so sound a little #AllLivesMatter-y to me, especially when directed at those most directly harmed by Scalia himself.

Whenever I keep seeing something described as “crass,” “in poor taste,” “inappropriate,” and so on, I always get curious about what’s really going on, because these phrases actually say very little except “a critical mass of people disapproves of this; it’s not just me.” But what do they actually disapprove of, and why?

Most of the types of people who would appear in my social media feeds don’t actually believe that it’s wrong to have certain emotions, but many of them think it’s wrong to express those emotions at certain times (or ever). In this case, a private glee at Scalia’s death might seem petty to them, but it’s expressing the glee publicly (or semi-publicly, as Facebook often is) that’s really “crass” and “in poor taste.”

Unable to produce an argument for why being glad that someone who did terrible, terrible harm has died is actually harmful, they resort to phrases like “celebrating death” that are intended to make the targets of their ire look either like callous, spiteful children or else some sort of Satanic cult. But one person’s “celebrating death” is another person’s “feeling relieved or ecstatic that someone who has done them terrible harm can no longer do so.” And sure, if I got to choose, I’d have chosen for Scalia to retire rather than die, but nobody asked me.

I’m sure there’s a lot of personal satisfaction in taking the perceived high road and deciding that, even though you belong to a group of people harmed by Antonin Scalia, you personally will not celebrate his death and will mourn it (or be neutral towards it) instead. But I’m uncomfortable with any ethical system that’s based on having or not having–or expressing or not expressing–certain emotions. The only place I see that leading is lots of shaming yourself and policing others for automatic brain things that are mostly outside of our immediate control (and for wanting to share some of those automatic brain things with other people).

I also wish that rather than rushing to condemn perceived “crassness” or “poor taste,” folks would cultivate some curiosity about where these strong emotions are coming from.


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Antonin Scalia and the Ethics of "Celebrating Death"

Why Homosexuality is Not Analogous to Murder

Supreme Court Justice Antonin Scalia is clearly very worried about the pervasive immorality that’s taking over America these days. First gay sex will become okay, then murder.

Yes, he really said that. “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?”

Here’s the context: Scalia was speaking at Princeton University and a student asked him about his decision to dissent in the landmark ruling of Lawrence v. Texas, which struck down that state’s ban on sodomy as unconstitutional. Scalia believes that the Supreme Court has no place in this “culture war” and that the activists who wanted to overturn anti-sodomy laws were advocating a “homosexual agenda” (his words, not mine).

When asked about this decision, Scalia used a slippery slope fallacy to suggest that if we can’t have “moral feelings” about homosexuality, then we can’t have them about murder, either.

Yes, yes, I get it. He’s not really saying that homosexuality is like murder. He’s making an analogy. But it’s a terrifically bad one.

Scalia, like many people who enthusiastically infuse their political opinions with religion, seems to think that murder is morally wrong cuz god said so–and, therefore, so is homosexuality. He seems not to realize that most people nowadays think that murder is wrong not because they’ll go to hell for it but because an innocent person is being deprived of their life. 

Who is being hurt by someone having gay sex? Who is being hurt by a same-sex couple getting married and living out their lives together? Who is being hurt when kids are discouraged from (and disciplined for) bullying a classmate for being gay?

Honestly, I think this is why religious conservatives started spouting all that stuff about gay people “converting” children to homosexuality. This is the reason for all those initiatives there used to be to ban openly gay people from teaching in public schools, and the reason why, even today, organizations like the Florida Family Association accuse Office Depot of turning kids gay by selling products saying things like “Be Yourself.”

Even though there is no evidence for the theory that homosexuality is some sort of infectious disease, religious conservatives insist that it is, because that allows them to claim that it actually harms people. And that makes the morality argument a very different one.

I’m also shocked that Scalia (and so many other people) really don’t see any difference at all between having “moral feelings” and legislating those moral feelings upon the rest of the country. These are probably the same people who go around wailing about “Christian persecution” because, guess what? You have the right to say and believe whatever you want, but that doesn’t mean you have the right to force others to live by it. Making sure you don’t have the latter right doesn’t mean you’re somehow being discriminated against.

In short, yes, you can have “moral feelings” about homosexuality. And murder. And whatever else you want. We just don’t have to live by your moral feelings.

I’ll grant that when someone says something like, “I don’t care if the gays can get married or not but I still think homosexuality is Bad/Unnatural/Gross/Sinful/Wrong,” I will argue with them. I still think they’re wrong. But I care a lot less about these people than about the ones who do care whether or not same-sex couples can get married, and especially the ones who by some twisted logic claim that there is anything at all acceptable about laws banning sodomy.

And, of course, in these debates, someone who thinks they’re really smart always shows up and asks things like, “But aren’t you legislating your morality upon others by saying that they can’t legislate their morality upon others?”

No; this is asinine. The default in a free, just society should be having rights rather than not having rights. So if you’re going to take away someone’s right to do something, you’d better have a damn good reason.

So why can we ban murder but not gay sex?

Well, even if homosexuality were wrong, it would still be wrong in a completely different way than murder. If homosexuality is wrong, it’s wrong because we (or god) just don’t like it. Murder is wrong because it infringes on the rights of others to live.

And, really, if we’re going to base our legal system on religious scripture, I’m still waiting for the laws banning gossiping, lying, speaking ill of one’s parents, working on Sundays, and refusing to love thy neighbor.

Why Homosexuality is Not Analogous to Murder