Less than a week until the US Supreme Court is expected to make rulings in two key equal marriage cases, one of its justices has spoken out to say the court should not be ruling on such an issue.

The US Supreme Court failed to announce its opinion on two key equal marriage cases on Thursday, and is now expected to do so on Monday, which is the last scheduled date to make a decision.

The court could rule on Proposition 8, California’s state-wide ban on equal marriage, and the Defense of Marriage Act, which federally bans same-sex married couples from benefits afforded to opposite-sex marriage couples.

Justice Anton Scalia made the comments in a speech in North Carolina on Friday, during which he said the court should not be ruling on “moral issues”, where there is no “scientifically demonstrable right answer.”

As well as equal marriage, Justice Scalia said the court should not make rulings on the death penalty or physician-assisted suicide.

He went on to say that the “judge moralist”, who decides on such issues threatens the US Constitution.

Despite being officially banned from discussing current cases before the Supreme Court at the North Carolina Bar Association meeting, Justice Scalia still used the speech to make hints that he may not be in favour of striking down Prop 8 and DOMA.

“In the United States, and indeed throughout the world, belief in the expert has been replaced by the judge moralist,” he said, reports to the Asheville Citizen-Times. “We have become addicted to abstract moralizing.

“I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged. Rather, I am questioning the propriety, the sanity of having a value-laden decision such as this made for the entire society by unelected judges.”

Scalia’s suggested position on these issues has not come as a shock to critics.

The Supreme Court does not announce which decisions it will announce ahead of time. Monday 24th June remains on the calendar as the final day on which the court could announce a decision. It could however, add extra decision days after Monday.

On the first day of hearings in March, the court heard arguments around Proposition 8, the state of California’s ban on equal marriage. Then the justices questioned the meaning of marriage, and challenged arguments for the ban. 

On the second day of hearings, several of the Supreme Court Justices raised concerns around DOMA, and some took that as a sign that there may be a narrow majority who will strike it down.