Welcome to NYU, Justice Scalia:
Justice Antonin Scalia recently visited NYU Law School, and if press reports are any guide the welcome was rather mixed. According to this story, Scalia visited NYU to receive an honor from the student members of the NYU Annual Survey of American Law, a law journal. While at the law school, the Justice gave a question-and-answer session that was met with insults inside the room and a protest outside the room.
The insult during the Q-and-A session has been widely reported online. Law student Eric Berndt, upset with Justice Scalia's oral argument questions and dissenting opinion in Lawrence v. Texas, asked the Justice: "Do you sodomize your wife?" Underneath Their Robes has an eyewitness report:
A protest against Justice Scalia followed the Q-and-A:
The insult during the Q-and-A session has been widely reported online. Law student Eric Berndt, upset with Justice Scalia's oral argument questions and dissenting opinion in Lawrence v. Texas, asked the Justice: "Do you sodomize your wife?" Underneath Their Robes has an eyewitness report:
There was this loud collective gasp from the audience, and for about 5 seconds Scalia stared at the questioner - I wasn't sure whether he was in shock like the rest of us, or whether he was going to come down from the podium and throttle the guy. He finally got a hold of himself and said he wasn't going to answer that and tried to move on to the next question, but for about 30 seconds the guy kept on badgering him and Scalia kept on trying to move to the next question, which he finally did.Wonkette reproduces an e-mail from Mr. Berndt explaining that his goal was to punish, embarrass, and dehumanize Justice Scalia for his allegedly bigoted views — what Mr. Berndt describes as an "act of resistance" against Justice Scalia's refusal to recognize his dignity.
A protest against Justice Scalia followed the Q-and-A:
A planned protest in Washington Square Park followed the Q-and-A, which drew activists from OUTLaw, an organization of LGBT law students, the National Gay and Lesbian Task Force, the NYU Black Allied Law Students Association and the NYC Chapter of the National Organization of Women. The group held signs that read "Scalia Go Home To the Dark Ages" and "Repeal Scalia," and wore homemade t-shirts reading "Scalia Not My Chief Justice."While I have some thoughts about this, I would be much more interested to find out what VC readers think. To that end, I have enabled comments — please comment away. As always, though, please keep it civil and on-point. I repeat: civil and on-point. Any rude or irrelevant comments will be deleted.
"Gifted people can either use their talents to help other people or hurt other people," said Bert Leatherman, a law student and the protest's organizer. "We all agree that Scalia has used his gifts to hurt people."
After listening to brief speeches around the fountain, the group organized and marched to Vanderbilt Hall, the law school building. The group stood inside the school's courtyard and chanted "Sexist, Racist, Anti-Gay, Nino, Nino, Go Away!"
"Scalia has got such a backwards world view and he wields so much power," said Dave Hancock, a Gallatin sophomore who joined the protest mid-march. "To be honored at a so-called progressive school is sickening."
Unsatisfied with the effect of their protest, the group quickly moved outside the law school and onto the corner of West 4th and MacDougal streets. They surrounded the first-floor room in which Scalia was receiving his honor and continued to chant and wave signs at bystanders. Some protesters wrote "Honk 4 Justice" on the back of their signs instigating cabs and cars to increase the noise volume.
This is a matter of juvenile, narcisstic self-importance.
It's a matter of what began--as far as I know--in the Sixties where one's initial thought was pure. Facts were unnecessary unless convenient, and one was so moral and right that anybody who disagreed was not only wrong on the subject, but was doing so for vile and nefarious reasons, thus justifying such tactics as would otherwise have been thought wrong.
I recall professors finessing the "we're the minority speaking truth to the moronic establishment, we're virtuous by virtue of being in opposition" and The Kids ate it up. Facts of the matter mattered not at all.
It was emotionally so satisfying to be right, to be in opposition to the evil, to have implicit justification for wrong acts.
Unfortunately, you aren't required to turn in that attitude along with your apartment key when you graduate.
But I do not fault him for insulting Scalia. According Berndt's email Scalia made disparaging remarks about homosexuals earlier in the session, and during oral arguments in Lawrence. If so, I feel compelled to ask why Scalia is not bound by the same principles of politeness as Berndt. If he is going to issue public insults then he should not be exempt himself.
Try out this hypothesis: "If it's too private to be asked about in public, it's too private to be legislated against."
The reaction to Scalia is unsurprising. Manhattan in general is hostile to right-leaning thought, the Village section of the city especially so. Add to that the left leaning sentiment among college students in general, NYU in particular, and NYU's various liberal arts colleges especially... You have a LOT of very-far-left activists there. NYU is quite possibly the most liberal place on the East Coast.
Non-lefties can have civil conversations with the locals about policy for a short while, but as soon as the other person figures out that you might support more than one or two "republican" or "conservative" positions, you get labeled, ignored and possibly insulted.
I'd write more, but this is well-covered ground. Textbook closed-minded campus activism fighting what they perceive as closed-mindedness on the other side.
Bottom line, NYU is a huge university. It cranks out some great thinkers on all sides (e.g. Greenspan). But it also graduates at hundreds of kneejerk leftists each year. You can see some of them at brainterminal.com.
Berndt is a college student.
Then again, I find it telling that they chose to cast him in a legislative light. Combining that with Mr. Hancock's comments frightens me. And combining that with Rep. DeLay's comments of late frightens me more. I hope there are still people out there who want a judiciary based upon the rule of law, not of men.
However, as someone else noted, there is a right way and a wrong way to voice dissent. I do think the question was out of line; the occasion doesn't seem to have been an appropriate one to take on the issue of gay rights. However, in another forum, I think it was a fair question.
I disagree with Justice Scalia on a number of issues. However, I do enjoy reading some of his opinions (he does have a sense of humor) and I have no doubt that Justice Scalia has the intellect to deal with criticism and dissent without everyone crying foul on his behalf. From the witness accounts, Scalia reacted with more dignity than many who are now making wild statements akin to the fact that someone who exercises their Constitutional rights, albeit in a distasteful manner, is not fit for the bar.
The student chose a poor time to make his point; all the hubbub surrounding it only validates his choice and increases the likelihood of it reoccurring.
A few other tidbits:
The administration has not apologized or made any comment about the incident, although Professor Barkow (a former Scalia clerk who helped bring him to campus) reportedly said that she was humiliated and that Scalia would almost certainly never come back to NYU.
Nadine Strossen, head of the ACLU, was one of the speakers talking about Scalia and his legacy at the dedication ceremony. Outside, protestors used airhorns and car horns to try and drown out the speeches. Ms. Strossen said that the protestors were exceeding their First Amendment rights, as they were not speaking but merely trying to drown out speech. Again, the HEAD OF THE ACLU said the protestors were going too far.
After dinner that night, Sclaia graced us all with a short song of his own composition: a couple of verses about interpreting legislative history, set to "Tiptoe through the Tulips."
Neo-traditionalists, right-wing radio fans, and libertarians will be able to flip questions like that easily and give as good as they've got. Lefties should spend a bit more time practicing argumentation rather than insult because insults will be wasted against most of their modern opposition.
"No, I'm not a sodomite because my faith calls it a sin so I choose not to indulge" would be a good neo-trad answer and one that is non-falsifiable by Mods.
You wouldn't really be interested in the answer, is my guess, you would be more interested in simply badgering the man for badgering's sake.
Why not badger Justice Ginsburg? Last I saw, she had just as much power over "every facet of our goddam lives" as Scalia.
But Mr. Justice Scalia has been all about public controversy, as a recent profile in the New Yorker magazine has shown. Just last year, wasn't Mr. Justice Scalia featured in an article profiled on Law.com as suggesting that orgies may be a good way of letting off steam?
We've been legislating and politicizing private sexual activity in this country for as long as we've been a country. If it is true that Supreme Court justices estanciate and embody the law, why is it wrong to ask them about personal practices they would seek to subject to state control?
So the Church, which is "on the side of life," teaches that "it is necessary that each and every marriage act remain ordered per se to the procreation of human life." "This particular doctrine, expounded on numerous occasions by the Magisterium, is based on the inseparable connection, established by God, which man on his own initiative may not break, between the unitive significance and the procreative significance which are both inherent to the marriage act."
Does it not follow, then, that as an ostensibly devout Roman Catholic, Justice Scalia would've been safe saying, "No, it's against our religion"? Unless saying that would run afoul of one of the other Commandments?
Besides, if Mr. Berndt knew anything about Scalia's jurisprudence, he'd know that even if Scalia was in the habit of sodomizing his wife six ways from Sunday, he'd believe that fact would be irrelevant to the question of whether laws against such behavior were constitutional. (I don't know if Scalia sent any of his children to parochial schools, but I'd be very surprised if he would agree with the holding in Pierce v. Society of Sisters. Moreover, his decision in Smith v. Employment Division convinces me that he'd find no constitutional problem with a statute that made it illegal for Catholic priests to possess wine for use in communion. Whether he thinks such a law, or the Oregon law at issue in Pierce, was wise or just would be another question, but one that Scalia would find irrelevant to the legal question he's be called on as a judge to answer.)
I think the NYU questioner may indeed have been familiar, not only with Lawrence, but with other opinions of Scalia's, whether judicial or personal.
All honor to his vote in Texas v. Johnson, but I don't think that his vote in Bush v. Gore is consistent with someone whose judicial responsibilities outweigh his personal principles.
There is nothing inconsistent about engaging in sodomy yourself yet not believing that the Constitution prevents a state from passing a law restricting it. Mr. Berndt suffers from one of two very serious problems. Either he (1) cannot understand basic logic, or (2) believes that the role of the judge is not to asnwer the question presented by the case, but rather to conform the law with his personal will. In either case, we should certainly not fault Scalia for doing his job and reading the Constitution as it is, rather than pretending its says things that it does not.
What I think this really boils down to is a complete failure to understand the role of the judiciary vis-a-vis the legislature and the Constitution. The "protestors" (or what have you) proclaiming that "Scalia wants" the state to do this and that can't seem to comprehend the not-at-all subtle distinction between desiring that the state adopt a certain policy and merely stating that the state is not prohibited from adopting that same policy. To them, the latter is the same as the former, and one who doesn't like the policy should arbitrarily decide the state is powerless to enact it. And that, of course, would be real judicial activism.
So I'm not losing any sleep over this. Scalia had it coming to him.
And that's really the crux of it. If one does not respect Bendt's identity as a gay man, as Bendt defines those terms, then Bendt refuses to engage in polite and reasoned discourse. To simply have a conversation with this individual, one must be willing to do so only in his ideological endzone; otherwise, he'll feel perfectly free to insult or embarass you.
This is a profoundly selfish and profoundly childish attitude, regardless of the merits of Bendt's argument.
Bottom line: being convinced that you're right doesn't give you license to behave like a jackass.
The scenario I imagined was Mr. Berndt's first oral argument before Chief Justice Scalia.
There's another, less compelling, but certainly understandable justification for the question. Justice Scalia is a bigot. He is a brilliant jurist, but he is clearly a bigot. For instance, in the Lawrence v. Texas argument, he asserted that one important interest that the government had in regulating homosexual sodomy is that the state had the power to prevent gays from "recruiting" younger people into the lifestyle. No person with even the remotest understanding of gays and lesbians would make such a statement. In his dissent in Romer v. Evans, he called the state of Colorado's desire to permit discrimination against gays and lesbians part of a "kulturkampf" rather than animus. Animus in the service of a culture war that Scalia supports is still animus. Scalia also compares homosexuality to all sorts of other, offensive activities, such as pedophilia and beastiality. This is a man who truly hates homosexuals, thinks that they are immoral, and believes that Christian civilization must stop them if possible.
Given this, can you blame people who engage in a lifestyle, which Scalia is not simply saying has no constitutional protection but further uses his position of great power to condemn as a threat to western civilization at every opportunity, for confronting Scalia and wanting to make him uncomfortable? Has Scalia ever considered moderating his rhetoric to spare gays and lesbians offense? Has he ever considered maintaining his position that these laws are constitutional without specifically throwing it in gays' and lesbians' faces, saying that their activities are immoral and comparable to pedophilia and bestiality? Of course not. So I fully understand why someone would not want to spare Scalia-- who is a provocateur-- the embarassment that is the logical consequence of his position.
1. The question of whether something is Constitutional is not the same as whether it is good public policy. There are a lot of people, like Justice Thomas, who echoed Griswold v. Connecticut (1965) when he called Texas's homosexual sodomy law "uncommonly silly"--but that is not the same as contrary to the Constitution.
2. The objection that most Americans (including, I suspect, Justice Scalia) have to homosexuality isn't based on the sexual acts, but the sexes of the participants.
3. Even if you buy into the argument advanced in Griswold which underlies a lot of the later privacy decisions, there is a big difference between the privacy right of a married, heterosexual couple, and that of homosexuals.
4. Why do so many Americans, especially those who are past 30, have this notion of homosexuals as immature and out of control people? Perhaps it is incidents like this.
What am I missing?
Having participated in far too many online and "live" heated debates/discussions/arguments on these kinds of issues, it reads to me like he's trying to set up the debate such that if you disagree with him, he can dismiss you as not "respecting his identity as a gay man" and reject your argument as ignorant bigotry. Which, of course, is ridiculous.
The final section of the Justice Scalia’s dissenting opinion abandons all precept of legal reasoning in favor of a vicious tirade aimed squarely at the opposition. Homosexuals, and those progressive social institutions that dare to defend them, so perturb the Justice’s moral conscience that his language finally becomes clear. Here we become privy to the true reasoning and the true motive behind Justice Scalia’s prior tortuous arguments. The vitriolic spilled forth in closing section of the dissent is unmatched elsewhere in the opinion. He opens with an attack on the “law-profession culture, that has largely signed on to the so-called homosexual agenda.” An “agenda promoted by some homosexual activists.” The persecutory language that Justice Scalia chooses to use leaves us with no doubts as to why he has chosen to dissent from the majority. He simply believes that homosexual conduct is morally wrong. Despite the accumulating scientific evidence that sexual orientation is biological in nature, despite the expansion of civil liberties with regard to the expression of human sexuality, despite the growing understanding and tolerance of Western civilization, despite the lack of a legitimate state interest in regulating this expression of human sexuality, he simply believes it is wrong. His perception of the advance of civil liberties as an “agenda” pursued by “homosexual activists” expresses his disgust. His defense of active discrimination against homosexual conduct as “Many Americans….protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” is demeaning and ignoble to the human spirit. That active discrimination against homosexuals in the public sphere can be justified because, in his narrow, unscientific opinion, homosexual conduct is not “mainstream” is a patently false statement on the attitudes of Americans towards homosexual persons. His further reasoning that in state and Federal codes such discrimination currently is legal or even a constitutional right is an appeal to the tyranny of the majority. For as this Justice cleverly confuses the issue between persons who “openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home” with homosexual conduct that takes place within the privacy of their own home. That is what Lawrence is about. Private, consensual, non-commercial sexual activity between adults. His invocation of the “culture war” is damning and reprehensible. That Justice Scalia seeks to uphold the prohibition of an act of a person’s private affairs by generalizing the case to be that of open, profligate, exhibitionist sexual activity is a gross error. Would he similarly consider other populist notions of homosexual conduct, the lisping cant of a man’s speech, the oh-too-short haircut upon a woman, as grounds upon which a person can be discriminated against in the private sector or the government? The aforementioned actions could easily be construed as homosexual conduct, and thus subject the individual to an infringement of his or her equal protection. It is Justice Scalia suggestion that homosexual persons can be legally discriminated against in the eyes of the law, that exposes his moral position as supreme to the laws of the land. Does Justice Scalia believe that homosexual persons are not entitled to the full protections of the law because of their sexual orientation? Or perhaps, in the manner of King Solomon, he would propose as a solution the doctrine of separate but equal? Let us note that Plessy v. Ferguson was overturned by this Court in 1954.
Everything I have said above should not be arguable to anyone -- that is what Justice Scalia believes, and I don't think it is an outrageous belief on his part; in fact, there is quite a bit of historical support for his position. So this is what I am missing, and what I alluded to in my prior comment: if the government has a right to inquire into such a matter and to deprive someone of their well-established liberty interest in being free from criminal sanction on account of such conduct, why is it so outrageous to ask one of the nation's top judicial officials if they engage in this conduct as well? Again, what have I missed? If you criminalize conduct, it has no right to stay private -- that is what Scalia supports, criminalizing that conduct so ipso facto he has no refuge in an argument of privacy. You can't have your cake and eat it too.
I disagree. It would not be a "rude" question, it would be an idiotic one because we know it not to be true. Were it reasonable to suspect that he had engaged in that conduct, it would not be rude to ask him about it; would it? Indeed, it is reasonably to believe that Justice Scalia, a married man, has engaged in oral sex with his wife, so then what is rude about asking about it if you assume that such conduct is properly sanctionable by the government as a crime? Can't answer that question; can you?
This is the kind of rubbish I would expect from Scalia. Are you going to compare necrophilia with homosexuality now?
As for those quoted above who think that vile, embarrassing questions are proper in any setting provided that you disagree with the public speaker, I assume you would have no problem with the following questions being directed at left-wing luminaries if they speak on a college campus:
"Justice Souter, you voted to overturn Texas' sodomy laws. Is that because the rumors that you are gay are true and that you practice homosexual sodomy in your private life?"
"Justice Ginsburg, you voted to strike down the partial birth abortion ban? Is that because you've personally had an abortion, or do you just like killing babies?"
I assume if decorum is optional and horrendous questions are the call of the day when Justice Scalia is on the receiving end, the same goes for all the justices, no?
King of Torts: I just was attacking the notion of "If something is a crime, then asking someone about their participation in it is proper." Greedy Clerk hadn't qualified it at that time. Now that he has, I tend to agree.
A fair question, on Mr. Berndt's terms. Of course, Justice Souter does not dwell in Texas.
"Justice Ginsburg, you voted to strike down the partial birth abortion ban? Is that because you've personally had an abortion, or do you just like killing babies?"
Rude in a way that the question to Scalia wasn't. He had the option, which for some reason he declined, of saying "of course not." The question to Ginsburg tries to pin her into a false dichotomy. Had Mr. Berndt asked "Do you sodomize your wife, or just Justice Souter?" or (my favorite) "Have you stopped sodomizing your wife?", then the question would be obnoxious in the same way that the Ginsburg question is.
Or, how about "Justice Kennedy, you voted with the majority in Lawrence as well as to ban the death penalty for felonies committed by minors. Is that because of your satanic Marxist-Leninist principles?" Would that be rude? Because I think I've read about some people who think they already know the answer.
A (hopefully) unoffensive analogy: I play golf. I play golf often. I see nothing wrong with playing golf. Some people consider it a sickness. But the US Constitution says nothing either way about golf. My personal preference for playing or not playing is entirely irrelevant.
Too many people today seem to believe that whatever behavior they want to engage in is a constitutional right, and anything they don't like is unconstitutional. But the constitution was never meant to settle every issue.
As I argued in a recent column, male-female relationships are inherently different from same-sex relationships. So a question that assumes they're identical is starting from a false premise anyway. But as I said, that's all irrelevant to the question of whether the constitution protects sodomy.
One can be a homosexual or a heterosexual and agree that the constitution doesn't mention sodomy.
Justice Thomas' concise dissent in Lawrence was spot on.
After accusing the majority of bowing to the "homosexual agenda", Scalia went on to defend discrimination against homosexuals, or as he prefers to call it, "`discrimination'".
All Berndt did was ask Scalia an embarassing personal question. Unlike with John Lawrence, no armed men burst into Scalia's home and arrested him for having sex.
However, I don't think this defeats Scalia's dissent, especially as to parts II and III, and referring to the manner by which the Court treats homosexuals as a protected class (perhaps they should be, but it seems clear that they weren't at the time) in part V.
It is unfortunate to those who advocate judicial restraint that its most public supporter, Scalia, seems unable to separate his support from his personal beliefs.
Oh wait, sorry, there is a codicil: doesn't apply to republican judges, politicians or journalists.
A word comes to mind: hypocrisy.
I grant that nobody wants judges to codify their own personal preferences into the law. But let's turn this around for a moment. Scalia refused to answer the question. It is therefore reasonable to assume that he may in fact sodomize his wife on a regular basis. Two questions for those supporting him:
1. Do you think he'd stop doing it if became illegal in his hometown? If so, you may also believe policemen obey speeding laws. I have my doubts.
2. If he didn't stop, would you still respect his defense of laws he does not himself obey?
I applaud Berndt. His question was precisely on point. I too would like to hear directly from those who make and enforce our laws whether they intend to follow those laws themselves. I actually like Scalia, but I'm not terribly fond of his "I don't have to answer that question, and I needn't recuse myself from a case in which I have a clear conflict of interest" attitudes. No man is above the law.
Then he could have asked theatrically, "Justice Scalia, have you ever engaged in a consensual sex act with anyone that violated the law of the state where the act was committed?" Or assuming that he has lived in Virginia for an extended period of time, he could have honed his question further: "Mr. Justice, have you ever committed the act of sodomy with any person, including your wife, in violation of the statutes of the Commonwealth of Virginia?"
Sodomy laws facially applied to all persons, including married heterosexual persons, so a question about whether or not a Justice committed a crime is more than acceptable. In this case, it was imperative.
Ideally, a more carefully-crafted inquiry regarding Scalia's willful denial to recognize the liberties of gay citizens would have resulted in the following: (1) an extended comment on relevant Roman Catholic dogma pertaining to the "violence" which gay parents theoretically commit upon their children by virtue of their sexual orientation, and (2) his recusal from a prospective gay marriage case because of his stated viewpoints.
The terse question turned Justice Scalia into victim of mild sensationalism that would strikes many as puerile and offensive. A far better approach would have prompted Scalia to twist in the caverns of his formidable intellect and expose his hollow rhetorical commitment to a jurisprudence that champions individual liberty.
a. Yes.
b. No.
C. *No response*
He chose C. The answer the perfectly illustrates the inherent contradiction in Scalia's dissent. Justice Scalia did not answer because it is not Mr. Berendt's (or the audience) business. A question of government interest? Privacy is not a fundamental right? Granted it is not explicitly stated as such in the Constitution. But I wonder if anyone here would agree with the statement, "As an adult, I agree that the state government has the right to monitor my private, consensual, non-commercial sexual activity with my adult partner in my home."
True, but irrelevant. As I said before, the fact you don't like something does not make it a constitutional question. The US Constitution does not address sodomy.
The Constitution doesn't address all sorts of issues. In a democracy, those unaddressed issues should be decided by democratic processes. To paraphrase a recent Scalia speech: You don't like anti-sodomy laws? Convince your legislators to overturn them.
What's at stake is whether the United States is to be ruled by democracy or by judicial fiat.
I am quite tired of the continued abusive tactics - whether it is such rude questions and instigation of horn honking, or the pies and salad dressing thrown at some right-wing commentators, or the storming of job fairs at which military recruiters are present, or the continued interruption of President Bush's speech at the convention. The right has become much too passive in accepting the left's use of these abusive tactics. If I had been at Scalia's speech, and Berndt had been near me, I would have hit him. It is time for the right to start fighting back.
Spoken like a comfortable member of the majority. Given the widespread prejudice against gays, how are they supposed to successfully obtain the repeal of such laws?
"Democracy or judicial fiat" is a curious dichotomy (that word again). Democracy is not a value; it's a means to an end, and we have Madison and Tocqueville to remind us that it's an imperfect means. The relatively recent willingness of the courts to stand up for minorities is one of the saving graces of our system of government. Or would Mississippi (my state) have eliminated segregation by now were it not for the courts?
Gays should <i>like</i> living in a country where states get to make a lot of the rules, and choose their state accordingly.
-dk
Tolerance The capacity for or the practice of recognizing and respecting the beliefs or practices of others.
or:
Violence: "If I had been at Scalia's speech, and Berndt had been near me, I would have hit him."
or:
Segregation: "Gays should like living in a country where states get to make a lot of the rules, and choose their state accordingly."
I choose the latter, but it is a free country....
Technically, you don't make the argument that homosexual relationships are inherently different. Instead, you make that assertion. From that assertion you go on to argue that because they are different, government discrimination against homosexuals is not improper or unconstitutional.
--G
I'll save my outrage for those who are tolerant of others that are abused, not documented bigots like Scalia.
I don't see the hypocrisy here. The "Left" is not claiming that the public actually has a right to know about Scalia's sexual practices. Rather, the point is that by asking, and having Scalia confirm that private sexual practices are a *private* matter, the student made the Left's point quite effectively.
Imagine if a state was considering adding or amending a sodomy law, and they wanted to get facts re whether a law would be a good idea. Presumably, if the subject matter of the law is within the legislature's power, the legislature would also be empowered to subpoena citizens to testify, and would be able to ask them about their practices under oath. Presumably, then, a state legislature would be able to subpoena Scalia and force him to testify on the matter. What in Scalia's views would protect him from this type of questioning?
I've thought, after California v. Greenwood (we have no reasonable expectation of privacy in our garbage), that someone should just search his garbage can every week and publish the contents on the news. Since there is no expectation of privacy, how could one object?
This assumes that the widespread disapproval of homosexuality is somehow different from the widespread disapproval of drug addicts, or of wife beaters, or any of a number of other groups whose membership is defined by their behavior.
Our laws allow discrimination against pedophiles; against polygamists; against incestuous relationships. What makes those forms of discrimination lawful while that against homosexuality is unconstitutional? Now, the ACLU has taken the position that it will find laws against polygamy, and has argued in Kansas that laws prohibiting sex with minors are unconstitutional, so at least they are consistent. But this is hardly an argument in favor of treating homosexuals the same as these other groups defined by their behavior.
If you think the comparison of these others groups to homosexuals is unfair, you haven't lived in the San Francisco Bay Area as long as I did.
Why yes, as a matter of fact, I did assume that, quite proudly.
But Prof. Cramer chooses to forget that the Texas statute forbade all sodomy, heterosexual or otherwise.
Which suggests a question to ask Prof. Cramer, but alas, I think it would violate the terms of Prof. Kerr's thread. Where is Mr. Berndt when we need him?
Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years.
So, for having oral sex with my wife, I could be imprisoned for TEN YEARS? Unless we take a restrictive reading of "mankind," in which case it's my wife who'd spend ten years at Parchman.
I'm sorry, but I find it difficult to take seriously, or even respect, anyone who believes that a free society can enact and enforce such a law. I guess that puts me in with the drug addicts and wife beaters.
It is probably difficult for heterosexuals to understand just how much anguish is caused by people like Scalia. The clearly stated, widely shared experience of homosexuals - that their orientation is an essential part of their being that demands expression and fulfillment - is ignored in favor of politics and a perverted sense of rectitude. The result is that perfectly good people are destroyed.
Destroyed! This is not hyperbole. This is reality. This is something whose consequences I have to deal with every single day. To not believe this is willful ignorance.
In Lawrence vs. Kansas, Scalia furthered an evil that should not be tolerated in a civilized society. I see nothing wrong with calling him on it.
Similarly, Goobermunch observes: "Technically, you don't make the argument that homosexual relationships are inherently different. Instead, you make that assertion."
There's a difference between "respect," which I read in Berndt's usage to mean nothing more than toleration, and acceptance. The jeremiad embedded in Scalia's Lawrence dissent was entirely disrespectful of an entire class of people (think of them what you will). Disagreement and difference clutter our every interaction with others; Democrats with Republicans, Christians with Muslims, euro-americans with african-americans, and so on, yet somehow we go on, often and optimally in a tone of civility.
Scalia, and a few of those who defend him here, seem to think it is okay to disparage gays, or to behave as though the difference between gays and heteros is a given and all questions concerning constitutional rights descend from that premise. So who is arguing circularly?
If Scalia spoke as disdainfully of, say, Asian-Americans in a dissenting opinion for the United States Supreme Court, who would defend him? True, however, that ethnicity is a suspect class, which homosexuality appears not to be (though now it's a borderline call, it would seem). But what if he spoke caustically of bankers, insurance companies, academics (oh, wait), or Democrats. There's an example -- political affiliation does not, broadly speaking, carve out a suspect class, but what if Justice Stevens just went on record in a dissent tomorrow as expressing his moral and personal revulsion at the very thought of Republicanism? Good, GOP-baiting liberal that I am, I would not endeavor to defend him. I daresay that publicly villifying someone for his sexual orientation is far more invidious, in virtue of the inscrutable origins of sexual preference, than doing so for his political affiliation.
I think Scalia has grown tiresome as rancor has increasingly displaced rigor in what passes for argument in his opinions. He deserves whatever flak he gets; sometimes shouting and chanting is more rhetorically effective than trying to sit down to a debate. Especially when your positions tend to deny you a seat at the table (q.v., the draconian screening and ejection processes that attend most or all Bush administration rallies, before and after the election).
Technically, I did make the argument. The fact you didn't like it, think it was weak, stupid, whatever, does not mean the argument was not made. "I didn't like it" and "it didn't happen" are not the same thing.
As I said in the article, the vast majority (99%) of people discriminate based on gender in their own lives every day, and see nothing wrong with it. There's nothing wrong with our laws making the same rational distinctions.
But that's all a separate issue. I oppose anti-sodomy laws. But the Constitution does not say anything about sodomy laws. As Justice Thomas said in his dissent in Lawrence, it was the job of the Texas legislature to overturn the law, not the USSC.
Scalia's view that the Constitution allows States to imprison people for sodomy is beyond the pale.
Someone who has real problems maintaining two distinctly contradictory propositions in his mind probably won't have much of a future in the field of law. I wish Mr. Berndt better fortune as a lawyer than he has had as a political actor.
Sorry, there's way too many people who have enough experience living in the San Francisco Bay Area to buy into your belief system about homosexuals being just like normal people, other than their sexuality.
"But Prof. Cramer chooses to forget that the Texas statute forbade all sodomy, heterosexual or otherwise."
Actually no it didn't. Texas had repealed a general ban on sodomy some years back (and the law on bestiality--I have no idea why), and put it in a specifically homosexual sodomy ban. That's part of why an equal protection argument was used in the Lawrence case. There is still a small possibility that states with general bans on sodomy (such as Idaho has) might survive a challenge.
I really don't have any enthuasiasm for these laws. To the extent that they lead to selective enforcement, they are dangerous and stupid. The laws, such as Idaho has, criminalize actions taken by a large majority of the population. I do care strongly that the Court decided that the Constitution can be disregarded if it offends a powerful special interest group.
You mean because he (and most other Americans) disapprove of your actions? I can understand the upset about laws that threaten you with prison. But why is anyone's simple disapproval so important to you? Most people would recognize that you have some sort of emotional problem that you need to work through.
If you think the comparison of these others groups to homosexuals is unfair, you haven't lived in the San Francisco Bay Area as long as I did.
I must point out that Mr. Cramer's years-long tirade against homosexuality is based on a very strange perspective on the community, including a quixotic, years-long troll of newsgroups such as soc.motss that in itself suggests a level of preoccupation with homosexuality that is inconsistent with the behavior one would expect of a well adjusted heterosexual. If one were to judge heterosexuals only by hanging around in casinos, whorehouses, and sleazy bars, one would come to a perspective much like his attitude towards gays.
The chief problem with his perspective is his assertion that homosexuals are a group "whose membership is defined by their behavior". This is manifestly untrue. There are many, many celibate homosexuals in the gay community, even in San Francisco, and nobody questions their identity. One of my best gay friends, for instance, is a virgin (by any definition), whose lack of sexual experience in no way undermines his confidence in his sexual orientation. Similarly, there are many heterosexual men whose occasional dalliances with other men do not make them "gay". His persistent refusal to acknowledge the most basic facts surrounding homosexuality, coupled with his constant references to how "living in San Francisco" makes him somehow an expert on gay behavior, makes his testimony on all aspects of homosexuality entirely unreliable.
I hope that this isn't a surprise, but this guarantee of a right to liberty is far less broad than you think. Where, exactly, does this right come from? If it comes from the Ninth or Fourteenth Amendments, perhaps you can explain why 3/4 of the states ratified those amendments in 1791 and 1868, at a time when every state made sodomy a felony?
There might be an argument that these laws are stupid--but the Constitution does not prohibit the states from passing stupid laws. There are a few strict limits on what the states can do. They for practical purposes can't pass laws that discriminate based on race. (They theoretically could, but strict scrutiny effectively prohibits it.) But states retained so much authority to discriminate otherwise that in some respects, the Fourteenth Amendment was rendered null and void until the national will developed in the 1960s to do something about it.
So, this rudeness from the students is really a pathetic yelp at what they see as the gross people who would pass such laws. They hate these people and see the judiciary as a tool of the elites (themselves). The purpose of the tool being to smite the ignorant views of these people. Scalia defends the right of the unwashed to actually vote and pass laws and that protection makes Scalia culpable as well.
This is about elitism versus democracy because, for the most part, a law should be viewed as legitimate because it was passed in a democratic manner.
To them, Scalia is a traitor to the elite class: those who are amazing enough to go to law school. and be gay.
Basically, these kids are rude and embarrasing to lawyers. I disliked my fellow law students because they did seem to think that they were there because they were special and that they were meant to change the world.
Anyway, these kids seem to think that by attacking Scalia they can change these laws. But they are illustrating their ignorance of how the law functions.
Well, Mr. Berndt's act demonstrated that he has no dignity, so there was nothing for Scalia to "recognize".
I wonder if any of his professors are interested in teaching him how to be a class act?
You can say that Dukakis or Scalia "asked for it" by advocating some particular position (against the death penalty or for the 10th Amendment prerogatives of the states).
But the fact is that we seem to have lost the art of insulting people without being rude.
I once witnessed a gay law professor question and challenge Scalia after a speech. I agree with much of Scalia's jurisprudence, but I had to admit the professor did a good job of exploring weaknesses in Scalia's positions. And the professor managed to do this without insulting Scalia *or* his wife!
If this is going to turn into an insult contest between Left and Right, how about some questions along the following lines for right-wing law students to ask visiting judges:
-Ask Justice Kennedy whether he would want his sister to marry Janet Reno.
-Ask Justice Ginsburg, "if a teenage punk killed your husband, would you change your mind about the death penalty for minors?"
-Ask Justice Souter whether he would want his daugher's teacher exercising his "constitutional right" to watch virtual child porn on the Internet.
What if Justice Scalia takes the advice of his critics and becomes an activist? Would his opponents like the results? If Scalia is persuaded that it's OK for a judge to write his own political beliefs into the law, then presumably Scalia would act on his Roman Catholic beliefs. Didn't Thomas Aquinas, or one of that crowd, say that sodomy is against the natural law? Therefore it must be unconstitutional, and the states must be obliged to ban it. All but 13 states had legalized consensual, private adult sodomy before the *Lawrence* decision, but what if Scalia decided that *all* states had an obligation to recriminalize the practice?
Note to the rest of the readers - the Texas statute overturned in the Lawrence case only forbade "deviate sexual intercourse" between members of the same sex. Texas Penal Code secs. 21.01(1)(B) and 21.06(a).
Most of the arguments in this thread defending Mr. Berndt present some variation on the idea that Justice Scalia deserved it. Perhaps he does, but I fail to see how vigilante rudeness can be considered an effective means of pursuing a larger goal.
Considering Mr. Berndt, so he was rude. So what? The idea that he deserves punishment is ludicrous.
Aah, that's better.
Anyway, Berndt's obviously not a very attentive law student, or he would have done the lawyerly thing, and asked if Scalia had stopped sodomizing his wife.
"You say that non-white people are intellectually inferior. Do you think that your non-white wife is intellectually inferior?"
These questions should be asked.
If Scalia did not feel comfortable getting called out on being a bigot, a homophobe, and a name-caller, then he shouldn't have taken the argument there in any of his court decisions. Why didn't he make a rational and reasoned argument why there is a government interest in having gay sex? Because there isn't a rational and reasoned one. Lacking that, he took the issue into the gutter, and Mr. Berndt brought him back there at the NYU lecture.
http://queerjustice.blogspot.com
Try out this hypothesis: "If it's too private to be asked about in public, it's too private to be legislated against."
I guess this would mean we should legalize rape and child molestation. Incest as well. Sheesh.
And I forget who this was:
"But, then, what if the student had asked, "Is it the State of New York's business whether you sodomize your wife?" This is slightly less confrontational, but makes the same point. J. Kennedy wrote in Lawrence that the answer to this question must be "no;" J. Scalia thought "yes."
Is it the State of New York's business whether you sodomize your daughter? Or some random woman you hit with a pipe in a back alley? Of course it is. The issue is where society chooses to draw the line. The Constituion says nil on these issues. It should be a state issue.
Berndt's question just showed that he has no class. I wouldn't be exactly proud to have a person like that as a son. I'm sure in his little circle he's some incredible celebrity right now.
In the sense that both has historically been criminal offenses (capital crimes in many states into the 19th century). To argue that what was a felony in 1791 (when the states ratified the Ninth Amendment), and 1868 (when the states ratified the Fourteenth Amendment), in every state in the U.S., should be understood as a constitutionally protected act, completely turns the interpretation of the Constitution on its head.
Is not every argument advanced in Lawrence equally applicable to child molestation? The laws prohibiting sexual contact with children are passed by the state legislatures in defense of a traditional Judeo-Christian notion of appropriate sexual relations. Not all countries use the same ages; in some European countries (the standard against which the majority judges our laws), these ages are sometimes much lower. What makes Lawrence's argument not applicable to polygamy, statutory rape, bestiality, or any other form of private, consensual sexual behavior?
It amazes me that people would rather place their trust in 9 lawyers in black robes than several hundred elected officials accontable to the people.
If the people of Texas didn't like the anti-sodomy law, all they had to do was ask the legislature to change it.
Um, no. Children, by definition, cannot consent to sexual relations. Nothing Judeo-Christian about it, unless Prof. Cramer believes that all other cultures encourage sex with children.
The definition of "child," of course, has changed over time, even in our Judeo-Christian civilization.
Lawrence might indeed support polygamy, which has scarcely ever been treated as an unspeakable crime; statutory rape and bestiality, by definition, cannot be "consensual."
The interesting problem after Lawrence, I think, is consensual sibling incest, which has a high "ick" factor ... but isn't quite something I can see imprisoning people for, either.
Back to relevance, I confess being disappointed that no one else on the thread took an interest in Roman Catholic teachings on sodomy and the possibility of Scalia's citing them. Christians should not be timid in advocating for their faith. (The speaker is Presbyterian by birth, Lutheran by marriage.) I wonder if Scalia wishes he'd relied on that? Difficult, of course, to come up with a good answer when you're blindsided.
Um, no. Children, by definition, cannot consent to sexual relations. Nothing Judeo-Christian about it, unless Prof. Cramer believes that all other cultures encourage sex with children.
The definition of "child," of course, has changed over time, even in our Judeo-Christian civilization."
Why can't children consent to sexual relations? That's just an arbitrary rule, set at an arbitrary age (different in different states). Keep in mind that the ACLU has argued in a Kansas case that laws prohibiting sex with minors violate the constitutional rights of teenagers to sexual autonomy. The Kansas Supreme Court didn't buy it, fortunately, but I would like Anderson to explain why children can't consent to sexual relations. This is just another one of those narrow, bigoted rules that the state legislatures passed.
This may be a surprise to Anderson, but not all cultures regard children as off-limits for sex with adults. Australian aboriginal culture, I understand, would hand over girls at 12 or 13 to older men of the tribe for "instruction" in sex. (Yeah, purely done for her benefit, I'm sure!) Some New Guinea tribes, I have read, would auction off the deflowering of girls when they reached puberty. At least among some North American Indian tribes, captured girls were available pretty much regardless of age.
The issue here, I guess, is whether the state has the right to do anything it wants unless the Constitution says otherwise, or whether the citizens have personal rights that the state can only infringe in pursuit of some general good.
That's an enormously important distinction. I, for one, don't think there is such a significant difference. If there is a constitutional right to privacy, it should exist for any citizen, irrespective of sexual orientation. If there is no constitutional right to privacy, then it exists for no one, including Justice Scalia and his wife.
I think that was the nature of the question, however inartfully (and crassly) posed. Lesbians and gay men had been accustomed, every day of their lives, to having heterosexuals assume facts about their private sexual lives from the most innocuous evidence -- a mere statement of who they are dating, a photo on a desk at work, membership in a gay organization. The fact of being homosexual leads to a repulsion, not about the person, but about the imagined sexual acts that would or might occur in that person's private life. If not for that speculation, why on earth are some heterosexuals so appalled by the fact of homosexuality in the absence of any sexual evidence at all?
Such inappropriate speculation may be easing at last. But this question, posed to Justice Scalia, shows heterosexuals what it looks like. And it isn't easy to live with.
This may be a surprise to Anderson, but not all cultures regard children as off-limits for sex with adults.
Depends on how you define "child." Children of 12 or 13 could be married in European nations not so long ago. I would submit, however, that very few cultures regard 7-year-olds (to pick a number) as fair game.
Children can't consent to sexual relations for the same reason they can't enter into contracts, vote, etc. The proper age limit is debatable, but the law is based on real-world qualities of children in general.
I suppose Prof. Cramer would say the same of anti-sodomy laws, but Prof. Kerr has snipped his remarks to that effect, so my retort is not entirely fair ... and rather than continue to go off-topic, I'll leave the issue of Mr. Berndt's question to Justice Scalia alone now, at least on this thread.
It's the same with the various idiotic prote