pageok
pageok
pageok
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:
  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."
  "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.
  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.
howvan:
I think that there is a right way and a wrong way to make a point. I think Mr. Berndt chose the wrong way. You don't make your point and help your cause by "punish[ing], embarrass[ing], and dehumaniz[ing]" the person with whom you disagree. That is especially so if that individual is a sitting judge...and no less than an Associate Justice! Everyone--from both sides--seems to have lost respect for other individuals and civility has gone down the tubes. Whatever merit there may be to Mr. Berndt's point, and I'm not sure exactly what it is, will be forever forgotten. It's sad, because instead of having an intelligent discussion with the Justice--as many of us would have loved to have this opportunity--where you try to highlight the Justice's inconsistencies or the discrepencies in his arguments, Mr. Berndt chose to end any possibility that this would occur by being rude and insulting Justice Scalia. I certainly wouldn't want Mr. Berndt as my counsel cross-examining witnesses. Personal attacks like these only demonstrate the speaker's inabilities and make the speaker look worse than the person they're trying to berate.
4.15.2005 2:39pm
Richard Aubrey (mail):
"sophomore" and "sophomoric" have the same root for a reason.
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.
4.15.2005 2:39pm
Andrew (mail):
I am a law student in New York City. I am at a 'less prestigious' school than NYU. We have had several controversial speakers here this semester alone (even though I don't find Scalia as a controversial speaker) and we have treated each viewpoint with respect and questioned the speakers analytically. I would think NYU School of Law would be embarrassed by this and hopefully they will discipline this student for his outburst by taking away his privelege to go to future speaking events. Not only is this terrible for discourse in general, but it hurts your own cause. I would hope someone bright enough to get into NYU Law would realize this, but it just goes to show that it takes all types.
4.15.2005 2:45pm
ND Law Student:
Anyone with so little respect for a justice of the highest court in the land does not deserve to be admitted to the bar.
4.15.2005 2:50pm
Timothy Sandefur (mail) (www):
4.15.2005 2:53pm
Kai Jones (mail):
The question is irrelevant and therefore mere theater. Even if the justice would have answered in the affirmative, he might still believe that it is wrong and should be illegal. He might recognize his own behavior as wrong, or immoral, or having a negative effect on society and choose to outlaw it even though he does it.
4.15.2005 2:55pm
Bernard Yomtov (mail):
Criticism of Berndt's actions is certainly understandable.To the extent he disrupted the entire event he behaved badly towards all the attendees.

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.
4.15.2005 2:56pm
paul (mail):
I don't think Berndt's motive being to "punish" or "embarrass" Justice Scalia is what made his acts inappropriate. What makes Berndt's act pathetic is that he had a chance to address someone who apparently has had a profound effect on his life, and all he could do is try to shock him with a personal question. If logic, reality, and a sound mind had been on Berndt's side, he could have, with proper preparation, been ready with a question that could have punished or embarrassed Justice Scalia without resorting to such tactics, and it would have helped his cause (beyond just getting pats on the backs).
4.15.2005 2:58pm
Anderson (mail) (www):
Hurrah for Tim. I think Justice Scalia has made himself too much of a public controversialist to be entitled to a sacred aura of non-embarrassment.

Try out this hypothesis: "If it's too private to be asked about in public, it's too private to be legislated against."
4.15.2005 2:58pm
Stephen W. Stanton (mail) (www):
I'm an alum of NYU's business school, perhaps the most apolitical of any school in the NYU system (i.e., never marketed as a "so-called progressive school").

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.
4.15.2005 2:59pm
Gavin (mail) (www):
I am a college student. College students to stupid things. I do stupid things.

Berndt is a college student.
4.15.2005 3:02pm
William Spieler (mail) (www):
I think that "Overrule Scalia" would have been a far better slogan on the poster, and be more relevant to his position as justice, as opposed to legislator.

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.
4.15.2005 3:05pm
The King of Torts:
God forbid a Supreme Court Justice would endure some heckling simply because his decisions affect every facet of our goddamn lives. As a straight person, I would have liked to ask him the same question myself. Kudos to the firebrands of today such as him. They are too few in number.
4.15.2005 3:07pm
Dave! (mail) (www):
The student had every right to ask whatever question he wanted; the First Amendment guarantees that right.

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.
4.15.2005 3:09pm
Dirtyfingers (mail):
Thank God liberals don't get exercised over things, as the president of CNN recently pointed out. Otherwise, there might have been real problems, such as protests and intentionally trying to humiliate and embarrass a Supreme Court justice in public...
4.15.2005 3:11pm
NYU 3L:
As a member of the Annual Survey, the journal that brought Scalia to campus, I can honestly say that I was horrified and disgusted at that question. While some of us may not agree with Scalia's views, that doesn't mean we should not pay him the respect that his office affords.

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."
4.15.2005 3:12pm
Duncan Frissell (mail):
This technique will only work as long as the few surviving members of an older generation are around to be verbally abused.

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.
4.15.2005 3:14pm
Am I A Pundit Now? (mail) (www):
King of Torts, you would actually waste everyone's time by asking him that question?

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.
4.15.2005 3:14pm
Jonathan Millet:
It seems as though Eric never learned to respectfully disagree with others. He needs to learn that emotionally attacking the viewpoint of someone only makes you look intolerant. The excuse of a college student does not apply; he is a graduate student. He should know how to act maturely.
4.15.2005 3:15pm
IL Law Student:
I think Anderson has it correct, and I disagree with NDLaw Sudent. To be sure, Berndt's question was obviously worded in a manner to elicit gasps and shock, and could certainly have been phrased in a less confrontational, if not controversial, way.

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?
4.15.2005 3:15pm
Chris Smith (mail) (www):
It must be frustrating for Justice Scalia. He obviously put a lot of effort into writing a well cited, well structured argument, arguing that however reprehensible the Texas law might be it did not violate the constitution or the liberties enumerated therein, even in the context of two hundred years of interpretation, and that by ruling against it the Court was engaging in dangerous abuse. The augment was against judicial overreach, but Mr. Berndt had obviously never read it, or any of the debates regarding judicial restraint, not to mention the fundamental concepts of separation of powers and checks and balances we learn about in elementary school, and had simply heard from someone that Scalia had voted against Lawrence and concluded he thus obviously must be anti-gay. I think that five-second pause must have been Scalia suddenly realizing the breadth of the intellectual schism between himself and Mr. Berndt, and wondering how he could possibly narrow it and engage him in any kind of meaningful debate.
4.15.2005 3:15pm
Anderson (mail) (www):
A little scavenging in the Catechism of the Roman Catholic church yields this elucidation of the Sixth Commandment:

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?
4.15.2005 3:17pm
Alexandstuff:
I suppose the point was that homosexuals don't own a "sodomy" monopoly. Yet one rarely hears debate regarding whether or not it is morally acceptable for a heterosexual couple to engage in oral sex.
4.15.2005 3:19pm
Seamus (mail):
The question was appallingly rude, intended merely to shock and insult, and not aimed at advancing any intellectual position.

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.)
4.15.2005 3:20pm
Anderson (mail) (www):
Chris Smith: I think yours is a good point, but on the whole, I don't think that Justice Scalia can be taken as regretfully concluding that, alas, the Constitution does not prohibit the criminalization of sodomy. Contrast his opinion with Justice O'Connor's.

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.
4.15.2005 3:23pm
I am Cornholio:
The entire question is irrelevant. What if Scalia had said "Yes, I do sodomize my wife, and for that matter, I sodomize my neighbors too"? The answer to that question has no impact whatsoever on the question before the court, which was whether or not the Constitution prevents states from regulating such behavior.

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.
4.15.2005 3:25pm
UCLA 1L (mail):
This kind of verbal "pie-throwing" is great. What will they do next?
4.15.2005 3:25pm
Adam Kronfeld (mail):
I concur with Kai Jones above. The question was a bit of meaningless theatre from a smarmy student. Whether or not Scalia engages in a practice he would not disallow the state from prohibiting is completely meaningless to a discussion of the prohibition's Constitutionality. In fact, the one thing that everyone on all sides of the debate should be able to agree upon is that a Justice's decision on a matter of law should be entirely independent of any personal stake he or she may have in the outcome.

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.
4.15.2005 3:26pm
The 13th Juror:
when has Nino ever displayed the slightest bit of courtesy to counsel at oral argument or his own colleagues in his opinions? Plus, this is the same guy who accepted a duck hunting vacation with Dick Cheney courtesy of an oil/natural gas businessman who was involved with a case before the high court.

So I'm not losing any sleep over this. Scalia had it coming to him.
4.15.2005 3:26pm
Robin Roberts (mail) (www):
Berndt demonstrated that the entire purpose of debate escapes him. Obviously NYU has failed to educate him.
4.15.2005 3:28pm
Apu (mail):
As an NYU Law alum, I was at first shocked when I heard about this incident. 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." If J. Scalia believes it is so obviously within the police power of the state to regulate this type of private conduct, why can't someone ask him about it? I still don't wholeheartedly endorse the student's precise actions, but it wasn't much beyond the pale as J. Scalia would define it.
4.15.2005 3:28pm
The King of Torts:
Scalia has his own incomprehensible system of Originalist logic. Arguing with him would merely allow Scalia to set the tenor and terms of the argument: things that have already been made painfully apparent through his opinions. These incidents are neccesary in order to remind us that there exists a common sense approach to these issues outside of stodgy stare-decisis.
4.15.2005 3:28pm
me:
I sure hope that guy doesn't think he is going to get hired at a major law firm anytime soon.
4.15.2005 3:29pm
Centerfire (mail):
At the conclusion of Bendt's explanation, he states:


I repeat my willingness to discuss this issue calmly with anyone who respects my identity as a gay man.


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.
4.15.2005 3:30pm
Anderson (mail) (www):
I sure hope that guy doesn't think he is going to get hired at a major law firm anytime soon.

The scenario I imagined was Mr. Berndt's first oral argument before Chief Justice Scalia.
4.15.2005 3:34pm
The King of Torts:
Is "respecting" his identity as a gay man such a high threshold that it amounts to a personal insult or overwhelming burden? Isn't Bendt just asking for the same "respect" that these Scalia-worshippers demand for Scalia?
4.15.2005 3:35pm
Dilan Esper (mail) (www):
To me, the question is proper, though quite rude. The questioner got exactly the response he wanted-- a tacit assertion of Scalia's right to privacy, which the questioner would assert is exactly what Scalia does not favor for anyone else. Indeed, one would assume that Scalia would staunchly-- and properly-- resist any attempt by the government to investigate his sex life, no matter the circumstances. Yet he opposes the claim that anyone else can claim that same right to privacy against a governmental intrusion into his or sex life. Indeed, and unlike Clarence Thomas, who thinks that sodomy statutes are constitutional but make bad law, Scalia seems to think that the government has a legitimate interest in preventing people from engaging in acts that are thought to be "immoral". Gays' sex lives, he argues, are everyone's business. But his sex life is none of yours.

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.
4.15.2005 3:35pm
Clayton E. Cramer (mail) (www):
I must say, there is nothing quite so entertaining as watching the left demonstrate their inability to understand:

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.
4.15.2005 3:39pm
Greedy Clerk (mail):
If it is OK to criminalize private consensual sodomy between two adults then it is OK to ask people about it. End of story.

What am I missing?
4.15.2005 3:39pm
Adam Kronfeld (mail):
Is "respecting" his identity as a gay man such a high threshold that it amounts to a personal insult or overwhelming burden? Isn't Bendt just asking for the same "respect" that these Scalia-worshippers demand for Scalia?

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.
4.15.2005 3:41pm
jdavidk:

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.
4.15.2005 3:41pm
William Spieler (mail) (www):
Greedy Clerk: I'm not sure that argument works. I think it would be quite rude to ask Scalia, for example, "So, did you kill anyone then brutally rape their corpse?"
4.15.2005 3:43pm
Greedy Clerk (mail):
Look, everyone here agrees that the government has no right to criminally sanction an individual unless the government has given that individual "due process of law." Scalia believes that the government gives a person "due process of law" -- and hence has a right to criminally sanction a person -- if the government can prove beyond a reasonable doubt to a jury of 12 that the person has performed consensual oral sex with another person.

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.
4.15.2005 3:45pm
Centerfire (mail):
King of Torts: As Bendt defines these terms, yes, it apparently is quite a high threshhold. To reach it, one must evidently wholly share Bendt's definitions and values vis-a-vis homophobia, discrimination, bigotry, equal protection, et cetera; in point of fact, Bendt makes clear earlier in his explanation that he considers the principled support of those not completely willing to storm the barricades to be "worthless".
4.15.2005 3:47pm
Greedy Clerk (mail):
I think it would be quite rude to ask Scalia, for example, "So, did you kill anyone then brutally rape their corpse?"

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?

4.15.2005 3:47pm
The King of Torts:

Greedy Clerk: I'm not sure that argument works. I think it would be quite rude to ask Scalia, for example, "So, did you kill anyone then brutally rape their corpse?"


This is the kind of rubbish I would expect from Scalia. Are you going to compare necrophilia with homosexuality now?
4.15.2005 3:47pm
Greedy Clerk (mail):
King of Torts: Please figure out who writes what!!!!!!!
4.15.2005 3:54pm
MJ (mail):
The largest point is that this young man is utterly clueless as to Justice Scalia's views. Saying that matters as sodomy laws are not prohibited by the Constitution and should thus be left to the legislature to decide, is to bigotry towards homosexuals as support for affirmative action is to blind hatred of whites and Asians.

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?
4.15.2005 3:55pm
William Spieler (mail) (www):
Greedy Clerk: Honestly, for the most part, I'd agree with you. Furthermore, I would think that the federal government would be prohibited from criminalizing such behavior under the 9th and 10th amendments. However, I think that there is a federalism question at stake, in that I really don't think that there is anything in the federal constitution mandating a right to privacy such as that which has been found by the Court. As a libertariann, I'd be abandoning my beliefs if I thought that there was a reason for a state to criminalize such behavior. However, I think it represents a shortcoming in our law that we haven't developed the necessary safeguards against state intevention into the private affairs of individuals. I think that muddling the line is dangerous because it leads us into a lulled sense of security when instead we should ourselves be watchful of abuses by the state and the legislature, relying instead on a judiciary that may, considering current politics, be quite fickle in its future jurisprudence on topics that we would think quite established.

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.
4.15.2005 4:00pm
Anderson (mail) (www):
"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?"

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.
4.15.2005 4:04pm
Ken (www):
The question was rude and ridiculous. Justice Scalia could logically contend that the constitution doesn't address a certain behavior whether he engages in that behavior or not.

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.
4.15.2005 4:05pm
hadayn (mail):
It's ridiculously disingenuous to pretend that Scalia`s strongly worded dissent in Lawrence (not too mention his subsequent comments) reflected only a disagreement with the majority's constitutional interpretation, and not, as he accused the majority of, his "taking sides in the culture war".

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.
4.15.2005 4:07pm
William Spieler (mail) (www):
I tend to side with jdavidk's take on this. I do think that Scalia is in fact biased against homosexuals, and expresses it. From his reported comments earlier in the NYU talk, as well as referring to the "homosexual agenda" in the third-to-last paragraph in his Lawrence dissent. Of course there are more people than just homosexuals who oppose the state intruding into the bedroom.

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.
4.15.2005 4:07pm
Am I A Pundit Now? (mail) (www):
Haven't we been told, ad infinitum, that sex is a private thing and no one else's business? I seem to remember hearing that once or twice from the Left.

Oh wait, sorry, there is a codicil: doesn't apply to republican judges, politicians or journalists.

A word comes to mind: hypocrisy.
4.15.2005 4:09pm
Al Jackson (mail):
I have to agree with Greedy &the King on this one. Some people are shocked by Berndt's rudeness, but what could be ruder than putting a man in prison? Why is it acceptable for Scalia to pass judgment on the sex lives of strangers, but unacceptable to ask him about his own habits? If being asked a "shocking" question is the worst thing to happen to him this week, he'll have had a pretty good week.

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.
4.15.2005 4:10pm
Anderson (mail) (www):
Professor Kerr, we're looking forward to your own thoughts, you having so graciously provided this thread for VC readers to share their own ...
4.15.2005 4:12pm
beowulf888 (mail):
But Al, the trouble is that Berndt really didn't make his point effectively. If he had prefaced his question with a comment like yours, and then had hit Scalia with the punch line "So Justice Scalia, do you sodomize your wife?", it would have been much clearer what he was trying to do. Anyway, I agree that Scalia needs to be heckled once and a while just to keep him humble ;-)
4.15.2005 4:22pm
Nikos A. Leverenz (mail):
The main problem with Mr. Berndt's question is that it lacked a good prelude or any sense of context. He should have asked the Justice whether or not a legislature has the unqualified authority to subject individuals to criminal punishment or even civil reprimand solely because of their consensual, non-exploitative sexual practices.

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.
4.15.2005 4:26pm
Christopher M (mail):
I'm surprised that no one has pointed out the most offensive aspect of the question -- the reference to Scalia's wife. Even if you think it's legitimate to ask Scalia about his own sexual activity, the whole tone of the question was quite degrading toward Scalia's wife, who is not a public figure, and really not the kind of thing civilized people say to one another.
4.15.2005 4:31pm
jdavidk:
I disagree with those stating that Berndt did not effectively make his point. He asked a spot-on question of Justice Scalia, who could respond:

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."
4.15.2005 4:33pm
Ken (www):
hadayn says: "Unlike with John Lawrence, no armed men burst into Scalia's home and arrested him for having sex."

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.
4.15.2005 4:36pm
A.S.:
Apart from the substance of the Lawrence issue, this is merely a continuation of the abusive tacitcs by a left-wing that cannot act in a civilized manner and cannot accept that their position is rejected by a majority of Amercians (as evidenced by the election of President Bush and Republican majorities in the Senate and House).

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.
4.15.2005 4:41pm
Anderson (mail) (www):
To paraphrase a recent Scalia speech: You don't like anti-sodomy laws? Convince your legislators to overturn them.

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?
4.15.2005 4:43pm
Dick King:
Last i looked, Scalia lives in a jurisdiction where sodomy is legal.

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
4.15.2005 4:45pm
William Spieler (mail) (www):
A.S.: It's not like American political discourse has ever really been known for its civility.
4.15.2005 4:48pm
jdavidk:
Do you choose:

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....
4.15.2005 4:52pm
Goobermunch:
Ken:

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
4.15.2005 4:54pm
Bob Van Burkleo (mail):
I agree it was a rude question. Would I have asked it? No. Am I feeling sorry for Scalia that it was asked? No. He is a public servant who has advocated that such activities are open to evaluation which led to an embarassing situation for him - oh well. Though I doubt the question was meant to have any lofty purpose, it did help punctuate the well known hypocrisy of those on the right who, like the Pharisees of old, think they can sit in judgement on others while being immune to such judgement themselves.

I'll save my outrage for those who are tolerant of others that are abused, not documented bigots like Scalia.
4.15.2005 4:59pm
A.S.:
jdavidk: In general, I choose tolerance. However, to the extent that others do not -- and Mr. Berndt and the protesters outside were certainly NOT tolerant of Scalia's view -- then they cannot expect it from me. Those who cannot act civil toward others have no right to expect civility from me.
4.15.2005 5:01pm
steveh2 (mail):
From Am I A Pundit:

Haven't we been told, ad infinitum, that sex is a private thing and no one else's business? I seem to remember hearing that once or twice from the Left.

Oh wait, sorry, there is a codicil: doesn't apply to republican judges, politicians or journalists.

A word comes to mind: hypocrisy.


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?
4.15.2005 5:05pm
Clayton E. Cramer (mail) (www):
"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?"

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.
4.15.2005 5:05pm
Anderson (mail) (www):
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.

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?
4.15.2005 5:10pm
Anderson (mail) (www):
Here's Miss. Code Ann. 97-29-59:

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.
4.15.2005 5:15pm
Timothy Sandefur (mail) (www):
Nikos, you da man. I miss you, guy.
4.15.2005 5:18pm
Tony (mail):
Good for them.

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.
4.15.2005 5:24pm
Moon (mail) (www):
Adam Kronfeld cited and wrote:

Is "respecting" his identity as a gay man such a high threshold that it amounts to a personal insult or overwhelming burden? Isn't Bendt just asking for the same "respect" that these Scalia-worshippers demand for Scalia?


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.


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).
4.15.2005 5:25pm
Ken (www):
Goobermunch:
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.
4.15.2005 5:33pm
Ken (www):
Anderson makes the common mistake of equating an immutable trait (race) with a behavior. There's no analogy between the two. All laws disctriminate based on behavior. That's what laws do.

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.
4.15.2005 5:37pm
Sodomy Lover:
The U.S. Constitution does not address sodomy, but it does guarantee a right to liberty. Scalia thinks that people's liberties (including engaging in private consensual sodomy) should be subject to the calculus of electoral politics. It's highly informative to know whether he engages in a practice that he thinks the Constitution allows States to imprison people for.

Scalia's view that the Constitution allows States to imprison people for sodomy is beyond the pale.
4.15.2005 5:38pm
Scipio (mail) (www):
The problem with Berndt's question is that its effect is based on the idea that hypocrisy is the ultimate yardstick's for a person's opinions. I suspect that Berndt, like many people of my generation, admires people who are "authentic" and "real" and abhors "hypocrites." I am hardly a fan of Emerson, but his observation "A foolish consistency is the hobgoblin of little minds" rings true to me every time someone is criticized for hypocrisy as if that were a surpassing sin, instead of a ubiquitous pecadillo.

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.
4.15.2005 5:42pm
Clayton E. Cramer (mail) (www):
Anderson writes: "Why yes, as a matter of fact, I did assume that, quite proudly."

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.
4.15.2005 5:47pm
Anthony (mail) (www):
4.15.2005 5:50pm
Clayton E. Cramer (mail) (www):
Tony says: "It is probably difficult for heterosexuals to understand just how much anguish is caused by people like Scalia."

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.
4.15.2005 5:50pm
Tony (mail):
Clayton Cramer writes:

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.
4.15.2005 5:52pm
Clayton E. Cramer (mail) (www):
Sodomy Lover writes: "The U.S. Constitution does not address sodomy, but it does guarantee a right to liberty. Scalia thinks that people's liberties (including engaging in private consensual sodomy) should be subject to the calculus of electoral politics."

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.
4.15.2005 5:55pm
Joeyjojo:
It seems like noone actually cares about what Scalia actually thinks about sodomy. His view of the law is separate from that view. As he has said in interviews, he does not interpret the constitution based on what he opinions he carries on a subject. It also seems that noone bothered to read his dissent.

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.
4.15.2005 6:02pm
Greg D (mail):
what Mr. Berndt describes as an "act of resistance" against Justice Scalia's refusal to recognize his dignity.

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?
4.15.2005 6:05pm
Lilburne (mail):
The student's question is the equivalent of the guy asking Mike Dukakis in 1988: "Governor, if Kitty Dukakis were raped and murdered, would you favor an irrevocable death penalty for the killer?"

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?
4.15.2005 6:15pm
Richard Fagin (attorney in Texas) (mail):
If Justice Scalia had been able to maintain his composure (I'm not saying that he should have been able to under the circumstances) he could have pointed out that the heckler's question was irrelevant, because even if the Justice had engaged in the conduct of the heckler's question, such conduct was not a crime under Texas law. Not only would that have shut the heckler up, it would have shown such command of the law that even the rest of the hostile audience members would have had to take notice.

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).
4.15.2005 6:30pm
Henry Woodbury (mail):
I can't say I think much of Mr. Berndt for asking the question, nor can I see any reason for Justice Scalia to answer it. I've been to a number of lectures in which rude questions have been asked. Sometimes the speaker has had a clever response, sometimes not. It doesn't signify anything either way so far as I can see.

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.
4.15.2005 6:40pm
Dan Simon (www):
Is it my imagination, or has this conversation gotten, er, a bit bold?

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.
4.15.2005 6:44pm
Spencer:
A question more akin to the one asked would be:

"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.
4.15.2005 6:46pm
Gretchen Weiner (www):
Scalia has said, in official government documents, that gay sex is the equivalent of bestiality. Eric was responding to Scalia's inflammatory statements, which were made in a much more inappropriate setting, with another inflammatory comment. Is that so wrong?

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
4.15.2005 6:49pm
lindenen (mail):
Anderson said much earlier in the topic:

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.
4.15.2005 6:50pm
Anderson (mail) (www):
Prof. Cramer should be acknowledged as being right about something; I had confused the Texas and Mississippi statutes, the former of which did indeed prohibit only homosexual sodomy (hence Justice O'Connor's concurring opinion). Mea culpa.
4.15.2005 6:58pm
OrinKerr:
For the record, I don't think the nature of homosexuality is on-point for the purposes of this post. I don't see how it is at all relevant to the question of Justice Scalia's visit to NYU. Any posts about the "true nature" of homosexuality will (and in some cases already have been) deleted.
4.15.2005 7:01pm
Clayton E. Cramer (mail) (www):
Gretchen writes: "Scalia has said, in official government documents, that gay sex is the equivalent of bestiality."

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?
4.15.2005 7:04pm
F. Chad Copier (mail):
If the Supreme Court had a history of simply ruling on the law and the Constitution instead of how they individually feel about a given issue, any discussion of whether or not J. Scalia was against sodomy would be irrelevant. Ironically, it is J. Scalia that wants to return to interpreting laws according to the Constitution instead of relying on "eminations of a penumbra" to legislate from the bench.

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.
4.15.2005 7:13pm
Clayton E. Cramer (mail) (www):
Understanding the historical context: since the Lawrence decision had what could only be called "law office history" about the history of sodomy laws, I have put together a collection of colonial sodomy statutes, here, with some examination of the error of Lawrence claims.
4.15.2005 7:14pm
Anderson (mail) (www):
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.

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.
4.15.2005 7:18pm
Addison DeWitt:
I tend to frame the issue as the freedom to do dumb things. Here I'm talking about the legislature in particular although I suppose that can also apply to Mr. Berndt's comments. The legislature passes plenty of laws that I would prefer they didn't but that does not make them unconstitional. The point in the Lawrence dissents, made more clearly by Justice Thomas was that being a "silly law" is not the same thing as being a constitutional law. I strongly oppose many of our policies on trade but that does not make it correct to challenge them constitutionally and if such a challenge was made I would oppose it. As Justice Scalia memorably put it in his concurrence in Cruzan, certain things "are neither set forth in the Constitution nor known to the nine Justices of this Court any better then they are known to nine people picked at random from the Kansas City telephone directory." A good reminder that when there is a problem the Supreme Court should not always be the answer.
4.15.2005 7:20pm
Clayton E. Cramer (mail) (www):
Anderson wrote: "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.
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.
4.15.2005 7:27pm
Anderson (mail) (www):
Sigh. Mr. DeWitt, thanks for your remarks. But, suppose you lived in a small state with a homosexual majority, which then pronounced heterosexual intercourse illegal, and you were caught in the act of same before you'd moved to another state? You would really think the state had the right to criminalize your intimate relations with your wife?

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.
4.15.2005 7:31pm
DavidL (mail):
I may disagree with Orin about whether the "nature of homosexuality" is on-topic. In light of Clayton Cramer's assertion that heterosexual married couples have an unquestioned right to privacy (which Justice Scalia, I'm sure, took for granted in his reaction to the questioner) while homosexuals do not, it would seem that at least Cramer believes that homosexuals have something in their nature that makes them so significantly different from heterosexuals that they have no constitutional right to expect that their sexual lives (unlike married heterosexual couples) might be entitled to privacy.

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.
4.15.2005 7:33pm
Anderson (mail) (www):
I'm afraid we've wandered entirely away from the topic as defined by Prof. Kerr, but one more reply to Prof. Cramer:

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.
4.15.2005 7:36pm
Anonymous Law Student:
Whenever I hear about this kind of thing, I just get irritated.

It's the same with the various idiotic protests of commencement speakers, campus visitors, etc.

My response is an overwhelming desire for these people to just shut up. I don't go to any of their moronic "teach-ins" on the evils of global trade, or the military-industrial complex, or meat and disrupt them. I leave it alone. Yet these people feel compelled to show up at anything they don't like with placards, armbands, etc. and generally cause problems. For the love of god.
4.15.2005 8:04pm
Ken (www):
Why is the homosexuality-bestiality comparison "bigotry" but the homosexuality-heterosexuality comparison is not "bigotry"?

It looks like comparisons you like are OK and comparisons you don't like are out of bounds.

And Anderson says animals cannot consent. But they can't consent to anything - being walked on a leash, being made into a cheeseburger - none of that matters a bit in terms of the law unless you think the animal has constitutional rights, which would be absurd.

But again, these are all side issues. The issue remains, how should such decisions be made, by unelected judges, or by legislators. The Constitution is silent on sodomy. So it is left to the states whether they legislate on it or not.
4.15.2005 8:27pm
jason p:
I think we all know the true nature of homosexuality - that it is a perversion of God's wishes for man to go forth and multiply. Everybody knows God made Adam and Eve, not Adam and Steve.

Once Bill Frist makes things right with the Constitution and we restore the Bible to its rightful place in our country as the true Law of the land, our country can return to prosperity.
4.15.2005 8:29pm
Tulkinghorn:

William Spieler (mail) (www):
Greedy Clerk: I'm not sure that argument works. I think it would be quite rude to ask Scalia, for example, "So, did you kill anyone then brutally rape their corpse?"


It might be rude to ask this of Scalia, but it would be an appropriate question for Posner.
4.15.2005 8:29pm
jdavidk:
In regards to Orin Kerr's question as to the nature of Justice Scalia's visit to NYU:

Justice Scalia is a guy who wrote some nasty things about homosexuals in the Lawrence dissent although Lawrence was about a state law concerning "deviant sexuality" and privacy, not homosexuality per se.

Some guy at at the NYU Q&A asked Justice Scalia a rude but pointed question about his views in said case.



Now, let us try to be a little more objective about this:

a. Mr. Berndt offended a man, his wife and various persons who heard the question first- and secondhand.

or:

b. Mr. Scalia, a leader of the United States government denigrating, dismissing and disenfranchising a significant portion of the population of the United States because of what they do with their bodies, in an influential government document.


Not too hard of a moral equation to balance out here folks.
4.15.2005 8:38pm
KirkH (mail) (www):
The fact that we're over 100 comments deep discussing this means that the kid got what he wanted. I'm not anti-religion and I'm not gay, the reason I agree with the kid is because he was standing up for freedom from government intrusion.
4.15.2005 8:48pm
Sean - An NYU 3L (mail) (www):
The NYU Law student body just received Dean Revesz's Response to "The Incident". I generally believe it is an appropriate response, though I would have preferred something stronger.

Dean Revesz's Response:
MEMORANDUM



To: The Law School Community

From: Richard Revesz

Date: April 15, 2005

Re: Justice Scalia's visit



I am writing to thank the community for having made Justice Scalia's visit to the Law School on April 12 a success. At the same time, I want to express my deep disappointment about two inappropriate incidents that took place during this visit.

As you know, the students on the NYU Annual Survey of American Law chose to dedicate their volume to Justice Scalia and invited him to their formal dedication ceremony, to which they also invited several leading figures in the legal profession to present tributes to the Justice. After Justice Scalia accepted the Annual Survey's invitation, I asked him to interact with as large a cross-section of our community as possible during his time at the Law School. He graciously agreed to co-teach a Constitutional Law class; meet with the faculty; and have a question-and-answer session with the students, which approximately 1000 students sought to attend.

Justice Scalia's presence at the Law School gave a large proportion of our students and faculty the opportunity to gain a personal sense of the Justice and to explore with him his judicial philosophy. In the days leading to his visit, our students also engaged in robust discussion among each other and with the faculty concerning the merits of his approach to constitutional adjudication and its effects on different areas of law. These discussions enriched our community greatly. Vigorous debate among individuals with vastly different outlooks on important matters is the hallmark of great academic institutions such as ours. We are a stronger and more vibrant intellectual community as a result of Justice Scalia's visit last Tuesday.

Two regrettable incidents occurred, however. First, during the student question-and-answer session, one student posed an extraordinarily rude, immature, and inappropriate question. Such a show of incivility to any individual invited to be a guest of the Law School, let alone to a Supreme Court Justice, has no place in our intellectual community. It is insulting not only to our guest but also to the law school community as a whole, and impedes the robust debate that events such as these are designed to promote. Questions can be asked--and should be asked--that are challenging, critical, and demanding. But part of becoming a professional and an adult is learning to ask these questions, even of those we disagree with strongly on certain issues, in a serious and mature way that does not involve offensive and insulting language.

Second, during the formal dedication of the Annual Survey volume, a small group of demonstrators, which included some of our students, yelled their chants into the windows of Greenberg Lounge, where the dedication was taking place. This protest was designed to interfere with the ability of the audience at the dedication, primarily Annual Survey students, to hear the tributes. Law School administrators asked the demonstrators to move back to the courtyard and the front of the Law School, where they could continue to express their views without interfering with the Annual Survey proceedings. The demonstrators refused, even those who had made an earlier agreement with Vice Dean Gillette that they would not disturb the event. This form of hecklers' veto has no place at our Law School, which is committed to vigorous debate of fundamental questions. No group of students has the right to attempt to disrupt an event or talk being hosted by other students and the Law School. Ironically, Nadine Strossen, President of the American Civil Liberties Union and one of the Nation's staunchest defenders of the First Amendment, made exactly this point to the hundreds of guests assembled for the Annual Survey dedication. She expressed in no uncertain terms that the freedom to speak does not extend to the attempt to silence others.

I am gratified by the communications I have received from the many students, including strong opponents of Justice Scalia's judicial approach, who have expressed consternation at these actions. We are fortunate to be a law school so renowned for its commitment to open and civil debate that we are able to host figures from all sides of the ideological spectrum. That openness will sometimes bring speakers whose views may deeply hurt some members of our community. But even then--especially then--we must adhere to the standards of professional conduct and personal integrity necessary to foster vigorous and engaged debate.
4.15.2005 8:49pm
jdavidk:
From the Dean's Response to the Incident -

"Questions can be asked--and should be asked--that are challenging, critical, and demanding."

Seems like Mr. Berndt met that criteria.

"Such a show of incivility to any individual invited to be a guest of the Law School, let alone to a Supreme Court Justice, has no place in our intellectual community."

Remember, Justice Scalia is a human being. Not some God to be worshipped, not a Papal ruler, not a member of some Polit Bureau. He is a smart guy who happens to hold some strong opinions. But he is a man, like you or I. Suspect to erroneous beliefs, obsolete dictums, a passion for power and a penchant for orthodoxy as any other man.

And for the Dean of NYU to bow-down and kiss the Holy ring, at the expense of fostering uncouth, uncivil, racous debate among his charges is sad. The whole affair stinks of hero-worship and elitism of the worst sort. The great Universities of this nation should be producing more men such as Mr. Berndt, who are not afraid to insult, depricate and pillory the men who aspire to moral rectitude.

Let us be clear, Justice Scalia opened the door to personal invective with his dissent. There is nothing more politically correct than apologists for the tyrannical manjority.
4.15.2005 9:06pm
Ken (www):
"b. Mr. Scalia, a leader of the United States government denigrating, dismissing and disenfranchising a significant portion of the population of the United States"

Scalia said homosexuals shouldn't be allowed to vote? I missed that speech I guess. I'd Google it but I suspect jdavidk is just winging it with the rhetoric. Nice alliteration though.
4.15.2005 9:18pm
Imperial_Standard (mail):
This is ridiculous.

First, Scalia dissented. The majority opinion was to overrule the Texas courts and remand the case to them. Scalia's dissent is not controlling anyone's life, least of all Mr. Berndt's life. He's not in Texas, and neither his liberty or "full dignity" are under Scalia's control.

Get a grip. This was a publicity stunt by a gay activist who had a "canned" letter ready to go. No matter what Scalia's answer, no matter what response from the University or law school faculty, this guy was out to make a splash, not to argue a case.

And, it seems that the commenters supporting his "courageous dissent" are fellow travellers who neither care that his comments were outrageous, only that it provides them a stage for further showboating.

Yes, its true that Scalia is only a man, not a Papal Ruler or Politbureau Elite. However, I was taught that you don't salute the man, you salute the rank. He is a Justice of the Supreme Court, not a man on the street, and you should respect the office, especially so because your chosen profession is to argue and decide matters of law.

P.S. Nothing in Scalia's dissent opens him to personal invective. I have read it. It is neither vitriolic nor disparaging to homosexuals. But then, its so convenient to be offended, and then to lash out, than to have a rational legal basis for disagreement with Scalia, isn't it?
4.15.2005 9:36pm
RickJones:
The student's question may have unwise and unmannerly, but I think it was morally justified. This is not because Scalia's constitutional jurisprudence is faulty, or even blatantly so. Surely, one does not open oneself up to such questioning merely by disagreeing on matters of constitutional interpretation.

Rather, it is because Scalia has gone out of his way to pepper his opinions with non-sequiturs about the "homosexual agenda" and the moral status of homosexual relationships. This is nothing more than punditry, offensively incorporated into law. As the student indicated in his letter, THIS was the aspect of Scalia's behavior that prompted his question.
4.15.2005 9:42pm
Challenge:
"Rather, it is because Scalia has gone out of his way to pepper his opinions with non-sequiturs about the "homosexual agenda" and the moral status of homosexual relationships. This is nothing more than punditry, offensively incorporated into law. As the student indicated in his letter, THIS was the aspect of Scalia's behavior that prompted his question."

Please provide examples of these non-sequitors and personal moral judgments Scalia has supposedly made. Thank you.
4.15.2005 9:53pm
gst:
Rick Jones: And what did Justice Scalia's wife do to merit the acute embarrassment she presumably suffered? I suppose she's just collateral damage.
4.15.2005 10:12pm
Tom952 (mail):
Berndt forsook an opportunity to engage a Supreme Court Justice in meaningful dialog so that he could vent some emotional steam and gain a little publicity. In Berndt's career, will anyone ever be able to rely on him to control his emotions and keep his mind on topic during critical, stressful emotionally charged proceedings?

Straying a little, wouldn't it be better for the country if the Houston police, failing to find the reported "weapons disturbance", recognized that their presence in the home was illegitimate, and therefore disregarded the observed trivial offense and bowed out? (Hopefully sending payment to repair the door in the mail.)
4.15.2005 10:36pm
Montana reader:
Civil and on point. Which these (or at least, that particular one) law students are not. Is this what we have to look forward to in our next generation of lawyers? Now I'm really worried...
4.15.2005 10:45pm
jon livesey (mail):
It's certainly a disturbing development. People who begin by challenging Supreme Court Justices might one day end up rebelling against King George III.
4.15.2005 10:48pm
jdavidk:
Ken: Paying my homage to Johnny C. :) shall we say dismantle their humanity?
4.15.2005 11:10pm
Lee Kane (mail):
I recently graduated from an NYU grad school. I am a libertarian Republican. While I think the protests were the typically repulsive fare from NYU students, I thought the question about sodomy and his wife directed at Scalia to be quite appropriate. Scalia believes it is within the bounds of the constitution for the government to ask that question of every citizen and, worse, to place legal sanction upon the citizen depending upon the answer. Is it not appropriate then, if we are to be in each other's bedrooms, for Scalia to reveal what goes on his? If he is shocked at the question, imagine how shocked he'd be if he were in handcuffs and was being asked that by a police officer? The question was not "punishment," merely a demonstration of the absurdity of Scalia's own views.
4.15.2005 11:25pm
Cohiba (mail):
The question is irrelevant and nothing more than silly theater. More self righteousness by the immature Left. The real question is "Should judges decide cases based on the Law, or for their own personal benefit?"

Well?
4.16.2005 12:05am
Ken (www):
jdavidk,
"...shall we say dismantle their humanity?"

Empty, hysterical rhetoric. Criticizing someone's behavior, or saying society ought not sanction that behavior, does nothing to "dismantle their humanity."

But that's STILL all beside the point. The Constitution is silent on sodomy. Thus it is left to the legislative bodies to deal with it, or not, as they see fit.
Do we want democracy or oligarchy, that is the question here.
4.16.2005 12:06am
jdavidk:
I like rhetoric. Here is some more for you, Ken:

Justice Scalia magnanimously asserts that he would no more require a state to criminalize private, consensual homosexual acts then he would forbid that state to do so. His reasoning that the states can do what as they wish, as long as it is “within the range of traditional democratic action” hinges upon his assumption that “fundamental rights” are those explicitly stated in the Constitution. The Court has held time and time again that certain substantive rights are at parity with those enshrined within the Constitution. Justice Scalia knows that the law is not as static as he believes and chooses to let himself off the hook by stating, “”later generations can see that laws thought necessary and proper in fact serve only to oppress,”;… and when that happens, later generations can repeal those laws.” The action of this Court has done just that. This facetious argument can be made against any law struck down by the Court by the proponents of said law. The invective of an “imposition by a governing caste that knows best” can be hurled by the detractors of the abolition of slavery, by the opponents of women’s suffrage, by those who would force the religious majorities choice of school prayer upon children of disparate faiths. His virulent attack on the Canadian court for “laying waste the foundations of rational-basis jurisprudence” rests upon that court’s decision that the common-law definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” violates the Canadian Charter. This diatribe leads us to Justice Scalia’s greatest fear. That the majority opinion in Lawrence will lead to the dismantlement of laws that differentiate between homosexual and heterosexual unions, as far as marriage is concerned.
4.16.2005 12:19am
Ken (www):
jdavidk says, "The Court has held time and time again..."

The courts have held all sorts of asinine things time and time again, among them that slaves were property. That's not an argument. That is precisely the problem.
4.16.2005 12:54am
jdavidk:
Ken,

I am sorry that you feel bad when the courts do not reflect your moral beliefs. I truly do. I spent a minute to take a look at the website that you have linked to your posts and I understand your plight. The world is changing in radical ways and we have to try to make sense of said changes. Moral ground is shifting in what I hope is for the betterment of mankind. I suspect that you do not share my view. That is OK. In every era there are those that support the static worldview, as opposed to the dynamic. I understand the psychological dynamic that entrenches one with the static view. But the old rules are not always correct. We, as the human race, attempt in a feeble manner to take a step forward in the dark and this step is as scary as the time in junior high when we had to attempt to dive off of the highboard.

That being said, let us look at what we are arguing about. Whether one man can stick his yoohoo in another mans yaya. And if the local prosecutor has a state cause for action if he finds out about the yahoo and the yaya. Is that what we should be concerned about? Do you honestly care where your neighbor, Bob, puts his yoohoo late at night, if it is another consenting man's yaya? Does it trouble your sleep so that you have to defend an obvious bigot? We all agree that the Constitution says nothing about sodomy. Does that mean that the majority can tell Bob and, let us say Jim, where they can put their yahoos if they are both consenting adults involved in non-commercial, private, sexual activity?

I understand that the law is the law, but the head jusrists of the land interpreted it in such a fashion that the matter of the yoohoo and the yaya are not something to be legislated by ignorant hicks, but fundamental rights. Sorry. But you are going to have to find something else to worry about late at night.
4.16.2005 1:22am
An NYU 3L (www):
Though you might be interested in the Questioner's Response as posted on a public listserv (ACS listserv among others) (the formatting errors are from my computer, not his email):


Fellow Classmates,
As the student who asked Justice Scalia about his sexual conduct, I am
responding to your posts to explain why I believe I had a right to
confront Justice Scalia in the manner I did Tuesday, why any gay or
sympathetic person has that same right.
It should be clear that I intended to be offensive, obnoxious, and
inflammatory. There is a time to discuss and there are times when acts
and opposition are necessary. Debate is useless when one participant
denies the full dignity of the other. How am I to docilely engage a man
who sarcastically rants about the “beauty of homosexual relationships” (at
the Q&A) and believes that gay school teachers will try to convert
children to a homosexual lifestyle (at oral argument for Lawrence)?
Although I my question was legally relevant, as I explain below, an
independent motivation for my speech-act was to simply subject a
homophobic government official to the same indignity to which he would
subject millions of gay Americans. It was partially a naked act of
resistance and a refusal to be silenced. I wanted to make him and
everyone in the room aware of the dehumanizing effect of trivializing such
an important relationship. Justice Scalia has no pity for the millions of
gay Americans on whom sodomy laws and official homophobia have such an
effect, so it is difficult to sympathize with his brief moment of
"humiliation," as some have called it.
The fact that I am a law student and Scalia is a Supreme Court Justice
does not require me to circumscribe my justified opposition and outrage
within the bounds of jurisprudential discourse. Law school and the law
profession do not negate my identity as a member of an oppressed minority
confronting injustice. Even so, I did have a legal point: Justice
Kennedy’s majority opinion in Lawrence asked whether criminalizing
homosexual conduct advanced a state interest “which could justify the
intrusion into the personal and private life of the individual.” Scalia
did not answer this question in his dissent because he believed the state
need only assert a legitimate interest to defeat non-fundamental
liberties. I basically asked him this question again - it is now the law
of the land. He said he did not know whether the interest was significant
enough. I then asked him if he sodomizes his wife to subject his intimate
relations to the scrutiny he cavalierly would allow others – by force, if
necessary. Everyone knew at that moment how significant the interest is.
Beyond exerting official power against homosexuals, Scalia is an outspoken
and high-profile homophobe. After the aforementioned sarcastic remarks
about gay people’s relationships, can anyone doubt how little respect he
has for LGBT Americans? Even if no case touching gay rights ever came
before him, his comments from the bench (that employment
non-discrimination is some kind of “homosexual agenda,” etc.) and within
our very walls are unacceptable to any self-respecting gay person or
principled opponent of discrimination. The idea that I should have
treated a man with such repugnant views with deference because he is a
high government official evinces either a dangerously un-American
acceptance of authority or insensitivity to the gay community’s
grievances.
Friends have forwarded me emails complaining of the “liberal” student who
asked “the question.” That some of my classmates are shallow and
insensitive enough to conceptualize my complaint as mere partisan politics
is disheartening. Though I should not have to, I will share with everyone
that I am neither a Democrat nor Republican and do not consider myself a
“liberal” except in the classical sense. I hope that we can separate a
simple demand for equality under the law and outrage over being denied it
from so much dogmatic ideological baggage.
LGBT Americans are still a persecuted minority and our struggle for equal
rights is still vital. 4 out of 5 LGBT kids are harassed in school – tell
them to debate their harassers. Suicide rates for them are much higher
than for others. We still cannot serve in the military, have little
protection from employment and other forms of discrimination, and are
denied the 1000+ benefits that accrue from official recognition of
marriage. I know some who support gay rights oppose my question and our
protest. Do not presume to tell me when and with how much urgency to
stand up for our rights. I am 17 months out of a lifelong closet and have
lost too much time to heterosexist hegemony to tolerate those who say, as
Dr. King put it, “just wait.” If you cannot stomach a breach of decorum
when justified outrage erupts then your support is nearly worthless
anyway. At least do not allow yourselves to become complicit in
discrimination by demanding obedience from its victims.
Many of our classmates chose NYU over higher-ranked schools because of our
reputation as a “private university in the public service” and our
commitment to certain values. We were the first law school to require
that employers pledge not to discriminate on the basis of sexual
orientation. Of Scalia’s law schools that have “signed on to the
homosexual agenda,” our signature stands out like John Hancock’s. We won
a federal injunction in the FAIR litigation as an “expressive association”
that counts acceptance of sexual orientation as a core value. Those who
worry about our school’s prestige should remember how we got here and
consider whether flattering those who mock what we believe and are
otherwise willing to fight for appears prestigious or pathetic. We
protestors did not embarrass NYU, Scalia embarrassed NYU. We stood up to
a bigot for the values that make NYU more than a great place to learn the
law.
I repeat my willingess to discuss this issue calmly with anyone who
respects my identity as a gay man. I have had many productive talks with
classmates since Tuesday and I hope that will continue.
Respectfully,
Eric Berndt
4.16.2005 1:26am
jdavidk:
Correction

In my previous post, I referred to the penis as the yoohoo and as the yahoo. Both terms are used as a synonym for the penis. I believe the term yaya is correct as it stands.
4.16.2005 1:29am
Thomas (mail):
It seems to me that Mr. Berndt has missed the point.

I think it's rude of someone to ask me how much I make. That's private information, and my response, ordinarily, would be, "that's none of your business".

But I don't think it's rude of the government to require me to bare my financial soul every year on April 15th.

Berndt's rhetorical strategy is to confuse the issue by invoking privacy, which is thought to be a conversation stopper. Instead, the question should be, and is, one of context and interests and the rest, just ordinary politics. Why can the government ask me a question that Mr. Berndt can't? Because the government is asserting a legitimate interest in the matter. And how do we know that? And so on...
4.16.2005 2:13am
Clayton E. Cramer (mail) (www):
DavidL wrote: "In light of Clayton Cramer's assertion that heterosexual married couples have an unquestioned right to privacy (which Justice Scalia, I'm sure, took for granted in his reaction to the questioner) while homosexuals do not, it would seem that at least Cramer believes that homosexuals have something in their nature that makes them so significantly different from heterosexuals that they have no constitutional right to expect that their sexual lives (unlike married heterosexual couples) might be entitled to privacy."

Griswold makes the claim that the right of privacy with which the Court struck down the contraceptive law was a right of married couples to privacy--a right present far back into English law. Griswold didn't really do much of a job of backing up that claim, but because English law held that a married couple were legally one person (coverture and all that, hence a wife not being required to testify against her husband), there is a privacy there not present elsewhere.

Now, complain all you want, but married heterosexual couples have a right recognized since at least colonial times, and you can make a claim that this right was recognized in 1791, and therefore, based on the Ninth Amendment that the federal government may not interfere. Squeeze the Fourteenth Amendment really hard, and you might be able to make the argument against the states. But homosexual couples? To the extent that the law recognized them in 1791, or 1868, it was make them felonious.

Now, I understand that you object to letting the dead letter of the past determined how the Constitution should be interpreted. Things have changed since then--and guess what, we have amended the Constitution to deal with those changes.

Slavery was lawful under the original Constitution. Amendment XIII fixed that.

Racially discriminatory laws were lawful under the original Constitution. Amendment XIV fixed that.

Black men weren't guaranteed a vote under the original Constitution (although some states still allowed it). Amendment XV fixed that.

Similarly with giving women the vote, and 18 year olds the vote, and a number of other expansions of rights.

Homosexuals were not guaranteed equal rights under the original Constitution. What makes homosexuality different from race, gender, and age? Homosexuals know that they are never going to get the strong majorities in 1/4 of the states--much less 3/4--to amend the Constitution--so they rely on judges who simply ignore inconvenient facts, and decide that the Constitution guarantees certain rights based on equal protection--and yet would never aceept the same argument for striking down laws that discriminate against felons.
4.16.2005 2:31am
An NYU 0L:
I'm planning to go to NYU Law next year (or in 2 years, pending Teach for America admission/rejection.) It seems to me more a matter of bad legal practice than morally wrong. I may be wrong, but law in general seems to be a field where, like in the senate, you at least show outward respect to even the nastiest and most dimwitted people, especially if they're judges. The judge in my parents' divorce case was a completely incompetent nepotism appointee (yay local family courts,) but even thought it's true, attorneys probably shouldn't go up to her and ask if she passed 8th grade math.

I don't know that the student should be punished for an argument that's beyond the pale (seems a reasonable one to me, if stated respectfully,) but he should be punished for extremely unprofessional behavior and for the likely effect his action will have on the NYU community. I'd like to be able to hear speeches from conservative/libertarian academics, justices, etc. in my next 3 years at NYU. If this asshole just made that impossible, I'm going to be extremely annoyed.
4.16.2005 2:33am
Clayton E. Cramer (mail) (www):
jdavidk writes: "Justice Scalia is a guy who wrote some nasty things about homosexuals in the Lawrence dissent although Lawrence was about a state law concerning "deviant sexuality" and privacy, not homosexuality per se."

Wrong. Lawrence was about a law prohibiting specificially homosexual sodomy. I do hope that you have read the decision.
4.16.2005 2:34am
Challenge:
I am still reading accusations that Scalia is a homophobe, that he writes "nasty" and mean-spirited things about homosexuals, but I have yet to see one example.

I am quite certain that a good number of his detractors here haven't even read Lawrence (or if they did, then they have serious reading comprehension deficits).

I have no idea why so many individuals think Scalia's legal position that the Constitution contains no right to sodomy is tantamount to hatred of homosexuals. There can be many, many laws which we find silly and even fundamentally wrong that are nevertheless constitutional.
4.16.2005 2:46am
Anthony Rickey (mail) (www):
Prof. Kerr:

The worst bit of this isn't what was asked of Scalia. It is that--at least reportedly--his wife was in the audience.

Suppose that Scalia had answered. In that case, he'd have been giving intimate sexual details of his wife's sex life, without the chance to ask for her consent, in a public forum. That, in and of itself, would be reprehensible for him to do, and disgusting for anyone to ask him to do.

Whatever Mr. Berndt's problems with Scalia, it's unlikely he knows anything about Ms. Scalia, her opinions about homosexuality, or her views on Lawrence. To be willing to sacrifice a third party like that, whatever one's view of an opponent, isn't an act of civil disobedience. It's in the nature of the gutless coward. The problem with Mr. Berndt has nothing to do with his homosexuality, and everything to do with his having no concept of a gentleman.
4.16.2005 2:49am
Challenge:
The supposed validity of the question, which a suprising number of commenters defend, could have been accomplished by asking Scalia if he thinks heterosexual sodomy can be banned, even in marriage. I don't think Scalia thinks Griswold was rightly decided, but he may adhere to it because of stare decisis (he seems more willing to accept prior decision than the other orginalist on the Court, Justice Thomas). Despite revoling around sex, the question could have actually produced legitimate debate. Instead the commenter decided to spit in Scalia's face.

The logic here and that of the questioner seems to be approximately: really, really "bad" things, like criminalizing sodomy, should be unconstitutional per se. If you don't realize this, then you're evil and should be treated with no respect or dignity. Needles to say, a great many people disagree with that philosophy.
4.16.2005 2:58am
jdavidk:
Cramer: My mistake regarding the Lawrence decisions. I need to learn to verify my understanding of the issue before I open my mouth. Nevertheless, my remarks concerning Justice Scalia's dissent do stand.
4.16.2005 3:01am
Challenge:
"Cramer: My mistake regarding the Lawrence decisions. I need to learn to verify my understanding of the issue before I open my mouth. Nevertheless, my remarks concerning Justice Scalia's dissent do stand."

PROVE IT. What demonstrates his supposed hatred and disrespect of homosexuals? And if there are so many excellent examples of his bigotry, wouldn't the better response be to CONFRONT him with his OWN WORDS? As an admirer of Scalia, I would certainly like to be informed if he's said or written anything like you claim.
4.16.2005 3:15am
jdavidk:
Whoa, whoa, whoa.

I do not wish to argus homosexual morality given Orin Kerr's admonishments, but come on. If you are going to make such strong statements Cramer, at least have the arguments to back them up.

Homosexuals were not guaranteed equal rights under the original Constitution.

Relevance. Neither where blacks or women. So what?

What makes homosexuality different from race, gender, and age?

Since when is homosexuality categorically different from race, gender and age? The scientific evidence is accumulating that illustrates homosexual orientation is biological in nature. Granted, we limit the rights of the mentally retarded but homosexuals?

Homosexuals compose between 5% and 10% of the general population depending on whose numbers you use. So you say it is OK to deprive them of the rights of heterosexuals because they will never reach a 3/4 supermajority to pass a Constitutional amendment?

Huh? Why?

Homosexuals know that they are never going to get the strong majorities in 1/4 of the states--much less 3/4--to amend the Constitution--so they rely on judges who simply ignore inconvenient facts,

such as?

and decide that the Constitution guarantees certain rights based on equal protection--and yet would never aceept the same argument for striking down laws that discriminate against felons.

What does felonious behavior have to do with homosexual orientation? Oh, because some 17th century statute condemned homosexuals accused of sodomy to a week in the stockade or some such nonesuch then it is OK for Justice Scalia to call on traditions and precedent to justify his sentiments?
4.16.2005 3:25am
jdavidk:
"What demonstrates his supposed hatred and disrespect of homosexuals?"

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

or:

"Many Americans do not want 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. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

Nothing like reinforcing a sterotype to make one's point, is there?
4.16.2005 3:48am
Mr. K (mail):
Most of us have limited experience with the gay activist community, and need to form our opinions of their reasons for pursuing the items on their agenda by observing how they do so. From that point of view, Mr. Berndt has in one sentence done more than any ten years of Mr. Justice Scalia's gray legal prose to foster a general perception of the gay activist community as a folk of doubtful maturity, defective socialization, and debatable personal mental stability. Were I a gay man interested in broad acceptance of my equal worth as a citizen, I would want to throttle Mr. Berndt. I would be so furious with him I would not be able to see straight. It's hard to see how he could do any more harm to the cause than he did.

However, since I'm actually hostile to Mr. Berndt's agenda, I'm amused and delighted by his actions. I'm only sorry he didn't do it on national television so the entire country could watch.
4.16.2005 4:55am
worldcitizen (mail):
Whoa, so where is this "law-profession culture that has largely signed on to the so-called homosexual agenda" that I keep hearing about. This thread is rather disappointing on that score if it is representative of the current legal intellectual culture of the country. Next thing you know, Cramer's going to be explaining how those crazy homosexuals in San Fransisco use the blood of Christian children to make matzoh.

Berndt was spot on with his question. Any "gasps" from the audience and tut-tutting from commentators here is misplaced. This is the whole point: either (private, consensual, adult, etc.) sodomy is legitimately a matter of public concern, or it isn't.

Constitutional issues aside, Scalia has made it clear that he supports sodomy laws as a matter of public policy. If he's in favor of having government agents in citizens' bedrooms, why the hell doesn't a citizen have a right to stand up and turn the tables on him?
4.16.2005 6:54am
Richard Aubrey (mail):
I suppose there's no reason to be surprised, but I am, at some of these arguments.
The Constitution is not a grab-bag of warm fuzzies from which SCOTUS is required to extract whatever makes us happy and damn the text.
I expect lawyers to make that argument, in some thin disguise, when they have a case at hand which requires it.
I am disappointed to find a number of them actually believe it.
4.16.2005 7:58am
Mark Delles:
I'm not a lawyer, or a law student, and my only direct involvement with the law was a traffic ticket. I have little respect, and no use for judges who make this stuff up out of thin air. There is a constitution, ignored by both parties, that is supposed to limit the role of the government. It has failed, totally. Justices Scalia and Thomas at least present the appearance of trying to conform to the constitution.

I also have little respect, and no use for rude people, straight or gay. I will certainly not live long enough to see the return of good manners. None of us will live long enough to see a free United States again.
4.16.2005 11:42am
Freder Frederson:
Justice Scalia is well known for belittling people and being an all arouund jerk on both the bench and in his public appearances. Thus in the forum he was in he deserved and should have expected such a question, especially since he has consistently argued that there is no "right to privacy". Another appropriate question could have been "why don't you have more children? Do you and your wife use birth control?"
4.16.2005 11:55am
Ken (www):
jdavidk said, "That being said, let us look at what we are arguing about. Whether one man can stick his yoohoo in another mans yaya. And if the local prosecutor has a state cause for action if he finds out about the yahoo and the yaya. Is that what we should be concerned about? Do you honestly care where your neighbor, Bob, puts his yoohoo late at night, if it is another consenting man's yaya?..."

If you would scroll back to earlier posts in this thread, you would see that I said I oppose anti-sodomy laws. Was that not clear enough for you? That is NOT what we are arguing about, not at all. Whether or not a behavior should be legal or not, and whether a behavior is protected by the constitution or not, are two entirely different questions.

The constitution is silent on sodomy. So a few activist judges made up the law to suit their tastes. They legislated, which is not their job.

Later you asked, "What makes homosexuality different from race, gender, and age?"

Irrelevant to this thread, but the answer is pretty obvious. Race, gender and age are immutable traits. Sexual behavior is not. Race has no bearing on behavior, and our society discriminates based on age and gender all the time. I'm sure you do as well. Or do you date both genders and all ages with no bias?
4.16.2005 12:00pm
Wizard of Oslo (mail) (www):
There are a few separate issues here: the method by which one challenges a view one does not like, the nature of Scalia's views, and most importantly, the issue of whether a given matter is truly private in impact.

Mr. Berndt had relevant points to make on an issue of great concern to him, but picked a method that did not allow for true discourse. At the end of the day Scalia, and everyone present, left with their own opinions intact, and with little understanding of one another. If one wants to change society, one must hope to make others understand your view.

I do believe that homosexuals and liberals who argue that Scalia is biased to begin with, legal questions aside, are probably correct. I tend to be conservative myself, and have few problems with Scalia's rulings, but I can understand how his detractors might feel. However, I would suggest that most judges, and most people, hold biases as well, and may mask them better.

Many people have pointed out that certain laws against sodomy seem only to apply to homosexuals, and further that this whole thing is a simple privacy issue.

I think the inconsistency in application of the laws on the books is due to the fact that sodomy in private (by homosexuals) as a recognized legal activity will invariably lead to wider changes in society that do in fact involve the government.

After all, are we really prevented from bopping any way we please in our homes, sodomy state or no? Of course not. Most of us, gay or straight, can sodomize to our heart's content.

The real issue here is that so long as these laws remain on the books, it makes it harder to make the type of societal changes that the gay community hopes to see nationwide. If you are trying to perhaps, compel the armed forces to end the "Don't Ask, Don't Tell" policy, it helps when the courts have affirmed that your behavior is universally normative, or, at least, not criminal.

In that sense, rulings in any case involving sodomy (and implicitly, homosexuality) will have a much wider reach that extends beyond mere bedroom privacy.

I think Scalia and most convservatives know this and it makes the question of gay sodomy or straight sodomy two entirely different societal (or legal?) beasts.
4.16.2005 12:17pm
maximum carnage:
I am a 2L at Tulane University School of Law and Justice Scalia came to speak here last year. While many local members of the bar and community who attended the talk were ardent supporters of his viewpoints, many law students (including myself) who attended were not. We, however, saved our comments until afterwards and limited them to things like, "Nice to meet you Justice Scalia. While I believe you are a great writer, I think your Lawrence dissent was incorrect as a matter of law." Or something like that. Mixing complements with criticism somehow seems to soften the blow, but still makes a point. And it makes it respectfully, which is exactly what someone of his stature and experience deserves. He may "living in the dark ages" with respect to his moral views, but he is nevertheless one of the great jurisprudential minds of this century.
4.16.2005 1:02pm
Clayton E. Cramer (mail) (www):

Whoa, whoa, whoa.

I do not wish to argus homosexual morality given Orin Kerr's admonishments, but come on. If you are going to make such strong statements Cramer, at least have the arguments to back them up.

Homosexuals were not guaranteed equal rights under the original Constitution.


Relevance. Neither where blacks or women. So what?
There's a procedure for changing the Constitution: amendment. That's what we did to require the states to give equal rights to blacks, and and the vote to all regardless of race or sex. Making stuff up as convenient is not a valid basis for interpreting the Constitution.

What makes homosexuality different from race, gender, and age?

Since when is homosexuality categorically different from race, gender and age? The scientific evidence is accumulating that illustrates homosexual orientation is biological in nature. Granted, we limit the rights of the mentally retarded but homosexuals?
Actually, the "scientific evidence" is not all that persuasive. It is certainly no stronger than the data that suggests that it might be a response to sexual trauma.

Homosexuals compose between 5% and 10% of the general population depending on whose numbers you use. So you say it is OK to deprive them of the rights of heterosexuals because they will never reach a 3/4 supermajority to pass a Constitutional amendment?
Actually, you are wrong. Men who are homosexual or bisexual constitute about 4-4.5% of the population; for women, it is less--about 1%-2%. This isn't a matter of depriving them of rights--this is a matter of the Constitution did not guarantee the right of homosexuals to marry or have homosexual relations. You may find that offensive or disturbing, but so what? There are lots of groups that do not have the same rights as everyone else. You mention the mentally retarded. Also minors. Convicted felons. Non-citizens. Non-residents. All sorts of groups are subject to various legal disabilities.

Homosexuals know that they are never going to get the strong majorities in 1/4 of the states--much less 3/4--to amend the Constitution--so they rely on judges who simply ignore inconvenient facts,

such as?
That the Fourteenth Amendment was never intended to guarantee equal protection of the laws to homosexuals.

and decide that the Constitution guarantees certain rights based on equal protection--and yet would never aceept the same argument for striking down laws that discriminate against felons.

What does felonious behavior have to do with homosexual orientation? Oh, because some 17th century statute condemned homosexuals accused of sodomy to a week in the stockade or some such nonesuch then it is OK for Justice Scalia to call on traditions and precedent to justify his sentiment
Felons are an example of a class (along with many others) that our laws discriminate against--denying members of that class certain rights enjoyed by the general population. Please explain why the government is allowed to discriminate against some classes, but not your class. Call it bigotry if you want to, but discrimination against convicted felons is also bigotry. Not every convicted felon is a hazard to others, but legislatures have historically disabled convicted felons because they are considered disproportionately likely to reoffend. You can argue that the legislatures are being unreasonable, but that doesn't mean it is unconstitutional.

By the way: it wasn't a "week in the stockade" in the colonial period. In many colonies, violation of the homosexual sodomy statute was a capital offense. Ditto for violation of the buggery statute. Maryland executed at least one person for buggery. Massachusetts was a bit more liberal; the penalty was five years in prison. Thomas Jefferson, being a liberal, proposed reducing the penalty from death to castration. I'm not suggesting that such harsh laws are appropriate--but they do show how seriously the Framers regarded your behavior.
4.16.2005 1:44pm
Challenge:
"Nothing like reinforcing a sterotype to make one's point, is there?"

The quotations you provided are entirely accurate. What is bigoted about pointing out what many people think? What is bigoted about pointing out that homosexual activists have an agenda? Femininst activists have an agenda. Conservative activists have an agenda. What's the problem here? His point is that the lawyerly elite believes things (homosexuality is amoral) which the population has not necessarily adopted. I am sorry, but there is nothing bigoted about those remarks. Maybe you think even discussing these beliefs is bigoted, but I have to disagree. His remarks that you quote illustrate the divide between what the country believes and what the profession of law believes. It's hard to do that without actually discusing the beliefs in question.
4.16.2005 1:50pm
Challenge:
If Scalia's writings are so filled with hatred and non-sequitors, then wouldn't the appropriate and useful thing be to confront him with those instead of insulting him? I guess that would require thought and actual evidence, not just convenient and unsupported notions and hyperbole.
4.16.2005 2:05pm
Bob Van Burkleo (mail):
This isn't a matter of depriving them of rights--this is a matter of the Constitution did not guarantee the right of homosexuals to marry or have homosexual relations.
Of course it did or as much so as it did any other citizens - the Supreme Court has recognized that every citizen has the fundamental right to marry and have access to the civil contract of the same name. And as the government was created to serve the citzens to say that it can proscribe the ability of a citizen to fulfil their basic human needs without infringing on the rights of other citizens would be like saying the government could make it illegal to breathing!

All people have a right to marry, they all can marry! Same gender couples marry all the time, I've attended many celebrations of same. I think it was the supreme court of Kentucky that recognized that marriage comes from beyond government, government merely acknowledges its existence. So the only question is should these married couples have access to the totally secular civil contract licensed by the state to support 2 person marriage? it is this question that court after court has said there is no convincing reason to only allow some married citizens access to this contract when the needs of all the citizens are the same and the benefits to government, society and the individuals of its licensing are the same. The only way people have been able to deny some citizens their equal rights is by encoding unequal access to government into their very constitutions. Of course even this doesn't prevent same gender couples from marrying, it merely excludes them from access to the civil contract of the same name, an act that is born from pure animus and little else.
4.16.2005 3:40pm
Bruce:
I guess I don't understand the point of the question. It would be one thing if Scalia had held, maybe in a Fifth Amendment case, that no one has the right to refuse to answer such a question. But Lawrence and Romer were not about such issues. (I should note I strongly disagree with his dissents in those cases, both of which I thought were extreme, to the point of being un-judicial.) As people have noted above, it's one thing to hold that something is criminal, and completely different to hold that it is OK to ask about it in public. Since Scalia has only expressed views about the former but not the latter, the question didn't skewer him in any particularly apt way, and as a result was simply rude. Unless I'm missing something.
4.16.2005 4:11pm
Challenge:
"[snipped mindless banter] And as the government was created to serve the citzens to say that it can proscribe the ability of a citizen to fulfil their basic human needs without infringing on the rights of other citizens would be like saying the government could make it illegal to breathing [sic]!"

This is a beautiful argument. Repeat it often. Denying someone has a right, under the US Constitution, to sodomy is the equivalent to suffocating innocent individuals. Yes, nobody can doubt the power and reason of the Left.
4.16.2005 5:04pm
Pepys:
What disturbs me about the support for Mr. Bernt is its apparent anti- or un-democratic nature. The general argument seems to be that X (an empty variable but here total and complete homosexual equality) is a goal worth achieving and if the democratic process won't or can't achieve X then it should be abandoned for other more effective tactics. I believe "Anderson" encapsulated the sentiment best: 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. Isn't this a truly radical and undemocratic position? Wasn't this argument offered up by Klansmen as they "resisted" the reform of the South? Can't this argument support the bombers of abortion clinics as easily as it supports the goals of the Enlightened Left? How can any Dean, professor or lawyer worth their salt not vehemently criticize an action so at odds with the legal and democratic enterprise? Sadly, it appears we do not all agree that it is wrong to coerce a result that is not achieveable through legislation.
4.16.2005 5:05pm
Ken (www):
Bob Van Berkleo said, "the Supreme Court has recognized that every citizen has the fundamental right to marry and have access to the civil contract of the same name."

Homosexuals have the same marriage rights under the law as every other citizen right now. There are four basic limitations on marriage - you can marry an adult, who is not a blood relative, who is not married already, who is of the opposite sex. These same limits apply to every person in America equally, the definition of equality.

Someone will no doubt feel compelled to respond by throwing in the canard that interreacial marriage used to be illegal. But race has nothing to do with marriage, sex is central to marriage.
4.16.2005 6:13pm
Katherine:
I'm not horrified by it, just mildly annoyed. Not least because it's a lousy political/argumentative tactic.

Here's the thing. I believe that Scalia's opinions and certainly his meanspirited dicta are motivated by animus against gay people. But Scalia believes no such thing. He has honestly convinced himself he is only doing what the Constitution commands him to do. So you need to puncture THAT somehow--maybe not for him; that's probably an impossible task, but at least for the audience.

How do you do that? Well, it's not easy. I'm not sure exactly how. You'd want to approach it as a cross examination, but that's not easy when you can't answer follow up questions. But you sure as hell don't do it like this.

I suppose I would devise a list of questions designed to show how indefensible his arguments really are, and give one to every person in the audience:

do you believe it would be constitutional to execute people for acts of sodomy?
do you believe it would be constitutional to deny gay people the right to vote?
do you believe it would be constitutional to force gay people to register with the federal government?
do you believe it would be constitutional for a state to pass a law forbidding a judge from awarding custody to a gay parent?
etc. etc.

You'd want to carefully research these to make sure he doesn't have a good answer on independent grounds.

With good protests as well as good writing, it seems to me the first rule is: Show, don't tell. And definitely don't think you can automatically make it more forceful by adding curse words and exclamation points.
4.16.2005 6:31pm
Katherine:
you could also grill him on Boy Scouts v. Dale--that he thinks there's a constitutional right NOT to associate with gay people if you don't like them, but treats with derision the idea that there might have a constitutional right to live with the person you love without being presumptively guilty of a felony. It's also totally contradicted by his First Amendment neutral-law-of-general-applicability test.

But no one in the press would have a clue or care what you were on about, so the first approach is probably better.
4.16.2005 6:40pm
Katherine:
In general, there's a constant tradeoff for a political protest or dissent or what have you:

a) To be effective, you have to get people's attention. b) But to be effective, you can't alienate people.

There's often a tradeoff. I mean, if this student had made the best legal argument imaginable but had done so in terms that reporters would not have understood--it would have no effect at all. But as it is, they're probably congratulating themselves on getting written up and overlooking the possibility that they've done more harm than good.

The far left these days has to a great extent forgotten (b); the moderate left has to a great extent forgotten (a).

The Civil Rights movement did both. One of the things I love best about reading the history is what freaking great politicians, or at least tacticians, the leaders were. Rosa Parks didn't just decide her legs were tired one day. It was planned for months; she was carefully chosen to be the face of the movement.

The gay rights movement is actually comparatively good at this, especially when it comes to their litigation strategy. But there will always be exceptions...and I suppose there will always be college students who are more interested in expressing their feelings and congratulating themselves on "speaking truth to power" than in actually changing things for the better.
4.16.2005 6:53pm
Bob Van Burkleo (mail):
This is a beautiful argument. Repeat it often. Denying someone has a right, under the US Constitution, to sodomy is the equivalent to suffocating innocent individuals. Yes, nobody can doubt the power and reason of the Left.
More this is a wonderful example of the deliberate obtuseness of the Right. Since when is a mere 'act' the central focus? This is about the innate need to pair bond, to show affection - things that ARE on the same level as breathing, eating, home, and other human needs. The 'act' is just one small part of it. Only the Right tries to say one citzen can have no legal sexual expression with a consenting adult and that their intimate relationships are unnecessary while conversely reserving these special rights for others and then try and portray all the citzens as having the same human rights.

The more the Right talks, the more they show how ludicrious their views are.
4.16.2005 6:56pm
Challenge:
I'm not making an argument for the righteousness of sodomy laws. Nobody is that I can tell. I guess you stand by your ridiculous statements. OK, whatever. Like I said, repeat the argument as often as you like. Far be it from me to stop you from airing your foolishness.
4.16.2005 7:30pm
Any onymous:
A.S.: Apart from the substance of the Lawrence issue, this is merely a continuation of the abusive tacitcs by a left-wing that cannot act in a civilized manner... I am quite tired of the continued abusive tactics ...If I had been at Scalia's speech, and Berndt had been near me, I would have hit him.



Ah, yes. Because punching people is clearly much less abusive that rude speech.

4.16.2005 7:40pm
A.S.:
Any onymous: I never claimed it wasn't abusive; it clearly is. I no longer wish to comport myself better than the uncivilized left-wing; I wish to resort to the same types of tactics they now use. As I said in my follow up, someone like Berndt who is abusive and uncivilized himself has no right to complain if I act abusive and uncivilized toward him.
4.17.2005 12:35am
NYU 2L:
To NYL 0L
I'd like to be able to hear speeches from conservative/libertarian academics, justices, etc. in my next 3 years at NYU. If this asshole just made that impossible, I'm going to be extremely annoyed.

Then go to another law school--I hear University of Chicago offers fine access to conservative minds. By all means go to some law school, though: your unblinking respect for authority will serve you very well!
4.17.2005 1:16am
Jonathan Millet:
Respect. We all want it given to us. We do not want to give it, especially when we do not agree with the other person. Adult: one who has learned to disagree with respect. Eric is not an adult yet.
4.17.2005 1:57am
Justin (mail) (www):
I just skimmed through about 135 posts, and found precisely one post that showed the author of the post to be thinking intelligently, like a well trained lawyer.

0L, you're going to do very well in law school, if you don't let the first year brainwash you.

Whether we should have some sort of normative value judgement on Mr. Brandt for causing what is essentially a politician some political embarrassment is about as far from the point as one can get.
4.17.2005 2:00am
Hovsep:
Scalia has been quite clear and outspoken in his disgust at sodomy and his belief that states should be able to criminalize it. I don't see any problem in asking him if he has engaged in the practice. If he has not and really thinks the state should interfere in our private lives to that extent, he should feel no shame in saying that he does not engage in sodomy. The same is true of people who take strong public stands against use of narcotics. Those who take those stands should be prepared to admit whether they use drugs or not and pay a price if they do. If Scalia lives his life consistent with his view of the law, then he certainly has not committed sodomy and should deny having committed sodomy in the same way that he would deny having committed beastiality or murder.
4.17.2005 12:32pm
Challenge:
"Scalia has been quite clear and outspoken in his disgust at sodomy and his belief that states should be able to criminalize it. I don't see any problem in asking him if he has engaged in the practice."

Again, provide evidence. I have seen none. All of you Scalia-haters are clinging to a notion which is NOT supported by the record. He does believe states can criminalize sodomy, so what? Does believing the state can discriminate against white people via Affirmative Action mean a majority of the Court is bigoted toward their own race?

I think many here exhibit Scaliaphobia because they are insecure with the basis of their beliefs. They KNOW criminalizing sodomy is unconstitutional, they just have a really hard time articulating why. And Scalia just frustrates this problem by being so damn smart and devastating in his dissent, thus he is "mean-spirited." It's easier to hate Scalia, than understand Scalia and his positions. It's easier to see an obstacle to one's goals as "evil," isn't it? The problem is, for all the talk of "theocrats" and their black and white notions of morality, the Left seems to suffer from this affliction much more than the Right. Get a grip and step back to reality, people.
4.17.2005 1:53pm
NOT THE POINT (mail) (www):
The issue is NOT, NOT, NOT, NOT whether Scalia supports anti-sodomy laws. Who cares if he does or doesn't, that is NOT, NOT, NOT, NOT the point.

The POINT is whether the Constitution forbids a State to criminalize sodomy. THAT'S IT!!!!!

And Scalia simply argued that the Consitution DOES NOT forbid it, but rather, that state legislatures should be free to forbid it or not.

THAT'S IT!

Whether Scalia likes sodomy, likes gays, dislikes gays, performs sodomy on his wife, his dog, or anything else, IS NOT THE POINT AND IS IRRELEVANT.

What judges believe it is not the point and should not be important. For all of you who support Roe v. Wade, for example, would it bother you if Blackmun, who wrote the majority opinion, actually privatly believed that abortion was wrong? NO, of course you wouldn't because it has nothing to do with the law and the outcome of the case. It is merely a personal opinion of a judge, which should not, if they do their job correctly, be relfected in their decisions.

Please read the case, before you spew irrelvant arguments on this post. READ THE CASE!!!!
4.17.2005 2:05pm
Justin (mail):
While I agree with all of you who say that Justice Scalia's dislike of homosexuals is "not the point", its clearly not for the reasons you cite. There seems to be some Scalia worshipping going on here in which, unlike anyone else on the Court (perhaps ever), the tie between Scalia's political preferences and his Constitutional interpretation are completely unrelated (for instance, Randy Barnett is a liberterian. Randy Barnett believes that this is good policy. He also believes the Constitution mandates it.....no connection?)

Those here who think there's no evidence that Scalia has no problems with homosexuality should reread Lawrence, because they are, perhaps, confusing Scalia with Thomas. It was THOMAS'S UNJOINED DISSENT, who wrote:

I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. \

If Scalia agreed with this, there would be no reason for Thomas to write seperately, as it is unlike Thomas to write just for the sake of writing.

Also, since evidence of Scalia's anti-gay animus have already been quoted at length from his dissent itself, and dissected to show the animus, I'll add my own two cents from outside.

First, Scalia's dispassion about homosexual rights is belied by taking "the unusual step" to deliver his opinion from the bench, where he"adopted a mocking tone to read from the court's June ruling that struck down state antisodomy laws in Texas and elsewhere".

Second, without spending too much time doing research, divorcing the man Scalia from the judge Scalia may be an interesting exercise, but eventually we have to turn back to him. Everything we know about him is that he is a DEVOUT believer in Catholic morality, save the death penalty, and he has written pervasively on the fact that this moral difference is okay and that he's blessed that the text of the Church's position on the death penalty for wiggle room. Undoubtably, in his writings in Catholic articles on the subject, he said that his morality is irrelevant (how convenient), and assuredly, one can, I suppose, concur with Scalia without having animosity towards gays (the fact, though, that little if any legitimate purpose to the law was put forth by Texas other than the moral rightousness of anti-gay bigotry makes it hard even finding homosexuals only worthy of rational basis protection, but that's going too far into the details). However, there simply is no reason to believe that actually IS the case.

Once again, this is all OFF point. The only real question for people of legal and political mind is whether or not the use of heckling here was effective or destructive to the political agenda of the speaker. On here, I agree with 0L.
4.17.2005 2:45pm
Where have all the reaonsable people gone? (mail) (www):
What disturbs me about the support for Mr. Bernt is its apparent anti- or un-democratic nature. [...] Wasn't this argument offered up by Klansmen as they "resisted" the reform of the South? Can't this argument support the bombers of abortion clinics as easily as it supports the goals of the Enlightened Left? [...]



What disturbs me is that people seem so willing to equate one person being rude in public to organized violence.

4.17.2005 3:11pm
Ken (www):
Justin,
..."thinking intelligently, like a well trained lawyer."

Which one were you looking for? :)
4.17.2005 5:46pm
Challenge:
Justin's claim that Scalia's dissent has been quoted at length, and thoroughly dissected on this thread is completely and utterly false. I have only seen one individual quote Scalia (if there were more, then I missed them). I challenged the poster's summary of the quotations posted, and and he/she never responded.

If Scalia's apparent "devout" status is enough to label him an anti-homosexual bigot, then a considerable portion of the Catholic Church deserves similar scorn and disrepect, I take it. Does the Pope deserve similar treatment? Apparently by these standards.

I CHALLENGE the Scalia-haters to produce the evidence of their allegations. I have seen none. Please support your allegations of bigotry with evidence. Gut feelings about what Scalia "might" believe because he's a "devout" Catholic are not just ridiculous, they're bigoted against Catholics. Even IF Scalia does adopt the Catholic teachings on homosexuality that does not make him a bigot. I can understand that to a great many people such a position seems mistaken, but it does not represent hatred or bigotry.
4.17.2005 6:20pm
Mark:
Supreme Court justices are supposed to decide the constitutionality of laws, not whether or not they are a good idea or violate some alleged natural right to privacy. Clarence Thomas, in his Lawrence dissent, described the law in question as "silly," but constitutional. Because you vote to uphold a law does not mean you agree with it, although I suspect Scalia would personally vote for anti-sodomy laws as a private citizen or legislator.

I happen to hate the federal income tax. I think it's a bad idea and is theft, pure and simple. But could I declare it unconstitutional as a federal judge? No.

Scalia could have answered the question thus: "I am not going to answer that question because it is none of your business. However, state legislatures do have the constitutional power to regulate private sexual conduct, like it or not. If you want a right to sexual privacy in the Constitution, you'll have to have it put in explicitly."
4.17.2005 10:22pm
Imperial_Standard (mail):
Again, more ridiculous arguments.

One, no "gay couple" is presumptively guilty of a felony. The 'sodomy law' that was struck down by the court in Lawrence v Texas was a sexual assault statute. Like many other paragraphs in Chapter 21, it defines various sexual conduct in the context of rape or sexual assault. Reading the Texas code right now, it defines homosexual conduct as a class C misdemeanor. The plaintiffs in the SC case were punished by being fined $200 and court costs.

The statute was enacted because rape laws as written by legislatures past didn't cover homosexual acts. In order to protect the citizens, the Texas Legislature passed this law in 1973, from what appears to be a comprehensive rewrite of all the Penal codes (probably because of the Supreme Court of that day).

Scalia's argument, if I could summarize, is that no matter what his personal beliefs, Texas Legislature has the authority to write laws, and he would not take it upon himself or the Court to rewrite their laws, either to criminalize homosexual conduct or decriminalize it. In his view, the Court should not intercede into legislative matters that are clearly within their purview.

It's called Separation of Powers. But you constitutional experts calling Scalia a bigot seem to have forgotten that.

Finally, Scalia's "mocking tone" is addressed to the Court, which he views as taking onto itself responsibility which does not belong to them. It's so much easier to mischaracterize for your own benefit than to address the issues here. It's easier to make Scalia out to be some Conservative Bigot Gay Hating Overlord than to admit that you are wrong, and the Court has opened a big can of worms by this decision.

Scalia's argument against this decision was that the Court was overturning Bowers v Hardwick, and a 17 year old precedent. If stare decis is no longer in effect, then say goodbye to Roe v Wade. A more conservative Court will likely do so, along with Affirmative Action. Are you really prepared to sacrifice those legislative gains for your Homosexual Rights campaign?

You don't understand the ramifications of your arguments, and supporting boneheads like Mr Berndt only opens up the other Justices to ridicule and derision. If you don't promote the respect of Justices of the Supreme Court, how do you expect to see victory for your version of civil rights, i.e. Homosexual Rights? It's not winning at the ballot box, nor in the legislatures of the 50 States. Your best chance of victory is through Judicial fiat, and your spitballs at Scalia only undermine the very Judiciary that you hope will have the institutional stature to uphold your version of Human Rights.

You are sinking your own ship, here. It is both counter-productive (defeating any legal victories you achieve along the way) and counter-intuitive (defeating the notion of the Judiciary as superior to grubby Legislators). If you don't think it through, as Mr Berndt obviously did not, you could stick up for him. If you thought tactically, as Sun Tzu would have you do, you would immediately disavow Mr Berndt and any of his arguments, putting as much distance between yourselves and his line of reasoning.

So I guess you defenders of Mr Berndt and his way of thinking weren't thinking it through, were you?
4.17.2005 10:26pm
Challenge:
Guess who wrote the following:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.


That's Justice Scalia in his Lawrence dissent.
4.17.2005 11:43pm
NYU 3L:
Hi NYU 2L,
No need to be rude to the prospective student.
Sincerely,
NYU 3L
4.18.2005 12:21am
kien (mail):
Orin, you're a brave soul to open this thread for comments. :)

Let's be real here, folks. A guy made a remark to a Justice of the Supreme Court that most of us would agree was out of line.

This entire "controversy" is a straw-man.

The issue before the court in Lawrence was the constitutionality of state law as it pertains to individual freedom and privacy.

Scalia and Thomas' dissent was based upon a belief in the sovereign right of the states to determine those things that the Constitution doesn't mandate.

This isn't about homosexuality or sodomy...although, unfortunately, one NYU guy tried to shift the sand that way. And of course, Justice Scalia's dissent only adds fuel to that ancillary fire.

I'm sympathetic to any cause to do away with stupid laws (as I believe the anti-sodomy laws to be) but over the past couple hundred years, we've established a process to do that. It's slow, cumbersome, tiresome, and it sucks but it's all we've got short of rioting in the streets.

In the end, after having read this entire wonderful debate, I'm most sympathetic to Clayton Cramer's position. I'd much rather change the law via the electoral process than entrust my future to lifelong-appointed judges.

--K.
4.18.2005 1:08am
Patterico (mail) (www):
I think Prof. Kerr's intructions regarding the comments in this thread say it all:

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.


The student's comments were rude and irrelevant. Why should they be accorded any greater respect than a comment on this thread?
4.18.2005 2:41am
You Dub (mail):
I find it amusing how easy it is for almost all of these comments to hide behind the argument that "Justices just interpret the constitution." In fact, any law, constitution, or decree will have a degree of vagueness that requires interpretation. One might reasonably ask whether homosexual sodomy most naturally falls under the category of "liberty" (that is, whether it should be grouped with other acts we think people have the right to decide about) or if it is better lumped with "bestiality and and child molestation" (acts that we might forbid). Judges must make judgements. The fact that the right to vote does not name specific individual people does not prevent the courts from ruling that the laws apply to those individuals. Why is it, then, that the courts cannot consider whether action X falls under the category "liberty" just as they are able to consider whether "Joe" falls under law Y, even though he is not named specifically? Of course, all of this would require judgement. And this seems to be what the student was questioning- Scalia's judgement.
4.18.2005 3:02am
NYU2L:
This is a long post, but if there is any wind left in this discussion, I would like to move it toward analysis of the issues in Lawrence, of gay rights, and of how Scalia’s anti-homosexual mentality effects the law. Perhaps due to being misquoted, many posts have assumed that a good moral point (why can you ask me when I can't ask you) was in fact my only point. Luckily, I didn't flunk constitutional law and realize the government is allowed to do things that would be incourteous of private citizens, like take 40% of your income. It is probably my fault for devoting like 2 sentences to legal argument last post, but I was more worried about my classmates understanding my moral and personal reasons for irreparably traumatizing everyone and driving away Professor Levinson than about whether you think I am a stupid lawyer. Hopefully a better discussion of the interstices of Lawrence, Scalia, homophobia, and the law will replace debating whether I am evil or just obnoxious.

Lawrence was not primarily about privacy, but liberty - specifically the liberty to form loving relationships free from the demeaning state-created stigma sodomy laws wrote large. Opposition to homophobia is not about privacy, but dignity. People can disagree about moral choices without denying others’ basic dignity. The Question was ultimately about dignity. Impolite discussion of others’ sexual conduct demeans that relationship in the same way sodomy laws and anti-homosexual speech demean gay relationships and lives. A loss of dignity caused by the government infringes a liberty interest. The current uproar illustrates the harm inflicted by demeaning personal relationships. Analogize the outrage of The Question to the outrage gay people endure as a result of homophobia and discriminatory laws, and you get the point. Scalia does not get that point because he sees no outrage in demeaning gay relationships and lives. His lack of empathy pervaded his dissent in Lawrence and made it impossible to understand the liberty claimed: homophobia effects his ability to judge. As a man and public figure, it prevents him from seeing homosexuals as full people, and therefore he can claim no immunity to demeaning rejoinders from those he insults.

The rest of this post goes like this: I. What decided Lawrence. II. What Scalia said in Lawrence. III. Why he was wrong, why prejudice influenced what he wrote. IV. The Question within this framework V. Conclusion.

I. Kennedy’s opinion in Lawrence.

Lawrence turned on official stigma that demeans a central liberty interest of human beings to form loving relationships without being marked for discrimination and lower status.
Held: “The convictions under the Texas statute violated the two men’s vital interests in liberty and privacy protected by the due process clause… the statute.. sought to control a personal relationship that was within the liberty of persons to choose… the stigma that the statute imposed was not trivial”
Most importantly, if gays can't SODOMIZE each other, they can't form loving relationships: “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.” Id. at 567. The liberty claimed was the liberty to form a relationship, not just to have sex.

Gays do form loving relationships, so they automatically bore the social stigma that what everybody knows they do together violate laws. The concern that sodomy statutes “demean [homosexuals] existence or control their destiny by making their private sexual conduct a crime” exists regardless of whether the state violates spatial or bodily privacy. Texas did not have to enter John Geddes Lawrence’s apartment to burden his ability to live a full life as an openly gay man, the statute’s sting and the discrimination it allowed (in family law, hiring practices, etc.) already did (Scalia hilariously cited this discrimination to counsel reliance on Bowers – reliance on discrimination as a good under the Constitution!).

Consistent with his prior substantive due process jurisprudence (he coauthored Casey, which balanced the woman’s liberty interest against the state’s interest), Kennedy eschewed minimum rationality review in Lawrence and asked, not only whether there was a legitimate state interest, but whether there was a state interest “which could justify the personal intrusion into the personal and private life of the individual. His opinion has some weaknesses (it did not overrule Bowers’ holding denying a fundamental right to sodomy and might have made more clear for Nino that minimum rationality was not being employed), but its central holding is logically consistent and left no room for the crazy parts of Scalia’s dissent.

II. Scalia’s dissent.

It is conceded that substantive due process is contested ground and that Scalia might have found no constitutional protection consistent with his views elsewhere (I will not address whether these views themselves are chosen because they foreclose certain rights). He did not, however, correctly analyze the majority opinion, and accused its authors of falling to a homosexual plot to end-run the American people. I will try to show he did this because of prejudice.

His errors:

1.Scalia repeated the error made in Bowers in assuming that the liberty claimed was merely a right to homosexual sodomy. “…the Court simply describes petitioners' conduct as ‘an exercise of their liberty’--which it undoubtedly is.” 539 U.S. at 586. The liberty claimed was not just the sex, it was the ability to form relationships absent official disrespect for one’s life. Scalia floundered on the same obsession with sex that plagued the Bowers court. **The above quote is another example of Scalia’s derision of gays throughout the opinion – judicial neutrality?

1. Scalia rightly identified Kennedy’s refusal to apply minimum rationality (“unheard of form of rational review”), but contradictorily portrayed the majority as having found the state’s law to lack a rational basis, as would have been necessarily true only under minimum rationality review. “the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack.” 539 U.S. at 599. Kennedy would have made it easier for everyone had he declared a level of scrutiny, but he did not accept Scalia’s default by silence. Nino dishonestly tried to have it both ways by saying the majority had both (1) used an unorthodox test and (2) destroyed morality legislation.

2. He led following parade of terribles: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity… [are] called into question by today’s decision.”(at 590). This statement is possible only if Nino either (1) ignored Kennedy’s point that adult-adult relationships implicate liberty in a way that adult-child, adult-sheep, adult-corpse do not, or (2) does not think there is anything about gay people that separate them from animals, rapists, and prostitutes. Oh yeah, “The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge,” I guess it’s (2).

3. He added gratuitous mean-spirited comments about how much people don’t like homosexuals (“Many Americans do not want 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” id. at 602), then made a pathetic attempt to claim neutrality (“I have nothing against homosexuals… promoting their agenda through normal democratic means”) that relied on casting claims of liberty under the constitution as an “agenda.” At oral argument he worried that gay teachers would convert children. Finally, he concluded his analysis of the law by attributing the decision to “a court, which is the product of a law profession culture, which has largely signed on the so-called homosexual agenda,” instead of attributing it to a different conception of due process and liberty than his own. He chose to impugn the integrity of fellow Justices rather than admit that they had correctly identified a liberty interest protected by the moral principles they believe the constitution enacted. Though the case comes out differently under a perfectly fine disagreement about the meaning of “substantive due process” (an “illusory concept” for which Nino has developed a systematic treatment – of a non-entity), Scalia focused most of his opinion on a bogeyman agenda, leading a fatuous parade of terribles, and mischaracterizing the majority’s reasoning and the liberty claimed.

4. Despite irrefutable scientific evidence, he refused to believe that homosexuality is an immutable trait for classification purposes. This responded to O’Connor’s concurrence, but reinforces how homophobia undermines his judging.

III. Why Scalia missed the point and said hateful things in Lawrence.

The Lawrence dissent showed a man incapable of understanding the majority’s point because he could not conceptualize what great liberty interest ANYONE could find in homosexual relationships. His sarcastic dismissal of gay relationships at the Q&A confirmed this lack of imagination and sympathy. Ending Scalia’s parade of terribles before it reached pedophilia and bestiality required only that he acknowledge the majority’s conceptual distinction between things unacceptable to majoritarian morality, and things unacceptable to majoritarian morality that form an essential part of loving adult relationships. See id. at 578. The burden is on him to explain how he could have led this parade unless gays are indistinguishable from animals and child-molesters.

Scalia’s Lawrence dissent and other comments prove by at least a preponderance of the evidence that he does not respect homosexuals and that this impedes his ability to judge. He produced a cartoonishly bigoted and often irrelevant dissent in Lawrence because he could not see the human dignity that created the liberty interest the majority recognized. Whether he believes the majority should recognize such a liberty interest under the due process clause is conceptually distinct from whether he understood it. At the Q&A, he responded to a question about Lawrence by mocking the majority’s recognition of the “beauty of homosexual relationships”(Nino’s words, he was exaggeratedly waving his hands to signify beauty while he said this – disgusting). Thus, outside of the courtroom, Nino showed that he might understand the majority after all, but disagrees on whether gay adults can form beautiful relationships.

Although judges often sound rhetorical trills when decisions don’t go their way, their motivation is seldom as bad as Scalia’s was in Lawrence (and Romer). People will try to defend him personally by referring to Catholicism. Justice Kennedy is a Catholic. He also knows that moral disapproval of another’s conduct, including her sexual conduct, does not sever the ability to recognize beauty in the other’s life. Do you think it is coincidental that their jurisprudence mirrors that difference? Law depends on judicial virtue; bigoted justices produce bigoted opinions.

IV. The Question’s relevance.

Reference second paragraph. The Question was part of a conversation. It asked how serious the interest John Geddes Lawrence and Tyron Garner had was. He responded with something about “every law violates privacy,” once more misconstruing or avoiding the point of Lawrence.

I knew I would not be allowed to walk Scalia through the majority’s opinion without being cut off (as I was after the first sentence), so I sketched that there was an interest involved, and asked The Question to illustrate the serious damage that trivialization of personal relationship entails – among other motivations, of course. He missed the point in Lawrence, in his reading of Bowers, and I assumed he would miss the point again, so this comment was for everyone else.

The Question momentarily invaded Scalia’s social and moral privacy rights to not discuss intimate relations with his wife in public. This impolite public discourse over private sexual conduct paralleled the statute’s state-backed stigmatizing discourse. Stepping outside law school issues, it paralleled the way public homophobia by men like Nino makes private gay conduct a topic of public censure. I doubt Nino got it, but for a moment he must have felt the way gay people feel all the time. Of course, there are many other good messages to find in standing up to bigoted bully.

V.
Note to self: Integrity and activism within law school may have higher costs than benefits. Lawyers will demand that you explain everything, then deconstruct your reasons for explaining.
Note to Scalia: You picked the wrong field to pass bigoted cruelty as professional neutrality.
Note to haters: I’m saving a scrapbook of my favorite nasty posts so years from now, when gays finally have equal rights, you can recall what reactionary prudes you were in law school. SODOMY, SODOMY, SODOMY, oh my!
Note to supporters: Thanks for the emails, I love you guys.
Note forwarded to bloggers: This is an email, not a tract.
4.18.2005 6:50am
NOT THE POINT (mail) (www):
NYU2L, although your argument is very sincere and makes ass all think, you still MISS THE POINT!

I happen to like the outcome of the case. My son is gay and I want nothing more for him to be able to go to any state he wants without having to worry about some rediculous law like sodomy.

On the other hand, it is very scary when 5 lawyers make that decision for him.

Let me get something straight. I do not like Scalia. I do not like Thomas. I do not like Souter, or the other 6 unelected beaurecratic jerks. And that is WHY I DON'T like the decision in Lawrence. I feel very uncomfortable with these jerks choosing to make policy for my son.

A divided Supreme Court decision is not the way to best further yours or my son's interest. It means nothing. All it means is that these jerks once again took the law into their own hands rather than interpret the Constitution.

Also, even though I like the outcome, I almost feel cheated. I mean, would minorities like it if, rather than passing the Civil Rights Act, it was merely a Supreme Court decision??? I DOUBT IT. The fact that the incredible piece of legislation was passed, changed all of our lives and made us all realize its importance. If it was mermely a Supreme Court decision, which thought it proper under the Due Process Clause, the whole idea would seem rather lame and contrived.

Most states before Lawrence did not ban homosexual sodomy. That is because most states, and most people, are not anti-gay jerks. Most states have realized that homosexuals deserve just as much freedom of sexual expression as anyone else. But Texas unfortunately did not feel this way. BUT THAT DOES NOT MAKE IT A CONSTITUTIONAL ISSUE. It is an issue that needed to be changed in the Texas Legislature. Whether or not that would have happened any time soon, is another question, but it still does not give the right for the 5 jerks to interfere. Freedom of oppression spreads like wild fire, and Texas would some day catch on that we are living in the year 2005, and would repeal their assinine law.
4.18.2005 10:05am
Challenge:
Is NYU2L the actual questioner?

NYU2L repeats accusations of bigotry without substantiating his belief. Instead, he chooses to return to the same tired arguments. Pointing out the moral basis for Texas' anti-homsexual sodomy statute is entirely relevant, and one should not infer Scalia condones or agrees with that view. Scalia is defending the principle that the promotion of sexual morality is itself a rational state interest, an interest the majority rejects in Lawrence. The rejection of the promotion of sexual morality as a rational state interest does not bode well for continued criminalization of consentual adult incest and polygamy. Bestiality is probably the least likely to be de-criminalized, but absent proof the conduct hurts the animal (in many cases, I am certain it does, in others I am not so sure) I don't see a reason, if Lawrence is correct, why the state has a legitimate state interest in criminalizing the "private" action of bestiality. Under Lawrence, the promotion of sexual moral norms is not a rational interest. Therefore, absent harm to the animal (a separate moral interest than promoting sexual morality), bestiality would seem to be protected. Given Lawrence, there is no way to avoid this uncomfortable and troubling conclusion.

I really am amazed how many so-called "activists" are so quick to judge others. Here NYU2L, in the same breath, tells us there is a constitutional right to homosexual sodomy, but not one to consentual adult incest. And the reason, though unarticulated, is that there just MUST be a difference between the two. It's nice to know a presitigious law school like NYU is churning out such bright legal talent. The reason homosexual sodomy is different than incest in legal principle is just left unstated by NYU2L, it's obvious AND elusive. I understand that comparison is offensive, but I think it is lost on a great deal of Scalia-haters that comparisons of homosexuality and heterosexuality are similarly offensive to many, certainly the majority of the legislature which endored Texas' anti-sodomy law. This is not to say that consentual adult incest is perfectly comparable to homosexuality. But neither are heterosexuality and homosexuality perfectly analogous. What is true, unfortunately, is that Lawrence seems to create an unfettered right to sexual freedom. The reasons we deny cousins or siblings the right to marry or have sex are pretty much the same reasons society has denied homosexuals the right to marry and have sex. That is, we are promoting and enforcing majoritarian sexual morals on the minority. This doesn't mean that they are either both right or both wrong, just that the reasons for each prohibition are quite similar.

I am curious why Lawrence and Lawrence-defenders balk at stating the obvious--Lawrence created a right to homosexual sodomy. I can understand that for many sex is part of a larger relationship, and it augments and enriches that relationship. But it's a petty sophistry to argue that Lawrence didn't create a right to sodomy, but instead some kind of enriching and validating mechanism for one's relationship. I mean, where else do we find such bizarre language? Did Roe not create a right to abortion? Did Plessy not allow schools to be segregated? Did Brown not nullify that right? Does the First Amendment not protect speech but rather some pursuit of personhood? Where else do we find such ludicrious language trying to run away from what the case actually defined and addressed? I think it's a lame device to try to maneuver around people's prejudice against homosexual sodomy. It's one thing to point out that case represents a larger principle, and that the specific question at issue is just part of the application of that principle, and it is quite another to deny what the Court actually did. It is fair to opine that Lawrence didn't JUST create a right to homosexual sodomy, but also of heterosexual sodomy. Many heterosexuals might be happy about that. It is absolutely false, however, to claim that Lawrence didn't create a right to homosexual sodomy.

Now, I am pretty sure you've inferred I am a hateful, anti-homosexual, frothing at the mouth, eager to imprison anyone who offends my moral sense of sexuality. But you're wrong. I haven't stated the obligatory "I think these laws are stupid" because I think that's fairly irrelevant. But since I have said all I am going to say, it's a nice way to highlight the point that one can argue with pretty much everything Scalia said, but vehement oppose the kind of law Lawrence dealt with.

Let me also take a moment to express my sympathy for a lot of the emotion found on the other side of this debate. But I sincerely believe NYU2L and others like him have let their intense emotion, and their righteous indignation, handicap their reasoning abilities.
4.18.2005 2:19pm
Mark:
Actually, cousins can and do legally marry in California and many states and I don't think it is properly called "incest."
4.18.2005 5:15pm
Mark:
Actually, cousins can and do legally marry in California and many states and I don't think it is properly ccalled "incest."
4.18.2005 5:15pm
Challenge:
in·cest
n.
1)Sexual relations between persons who are so closely related that their marriage is illegal or forbidden by custom.
2)The statutory crime of sexual relations with such a near relative

I never claimed it was forbidden in every state.
4.18.2005 7:59pm