Scalia questioned on sodomy at NYU

April 15, 2005 5:09 PM

Justice Scalia faces probing question at NYU due to previous dissenting opinion in Texas sodomy case. Questioner responds to the controversy. via
posted by peacay (54 comments total)

Heh heh. Probing.
posted by LittleMissCranky at 5:33 PM on April 15, 2005

Well, that article pretty much makes all the dissenters look like boorish idiots thanks to one boorish idiot.
posted by acetonic at 5:35 PM on April 15, 2005

Well-written.
posted by kjh at 5:40 PM on April 15, 2005

From what I can make of the response printed at Wonkette, the questioner first queried Scalia in a manner to similar to how Justice Kennedy did when he asked whether criminalizing homosexual conduct advanced a state interest "which could justify the intrusion into the personal and private life of the individual." Then Scalia said he didn't know. The follow-up question was therefore blunt, but not illegitimate or boorish and certainly was not the type of question asked by an idiot. The first article gives you no idea of context.

The protestors, on the other hand, were being ridiculous, if the article is in any way accurate there.
posted by raysmj at 6:07 PM on April 15, 2005

The right to free speech means the whole world can know you're a dipshit.
posted by Saucy Intruder at 6:24 PM on April 15, 2005

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.

You know, I gotta think that things are not going to get better for the progressive left until these public displays of moral rectitude are rejected as the temper-tantrums that they are. I mean, what's the point of making a show of your grievance if it hurts your cause? Is this guy so clueless about how the media work that he thinks that his interminable, well-reasoned justification will in any way contextualize his sound-bite?

Nope. I'm guessing he doesn't fucking care. Maybe when the battle lines get drawn over basic rights instead of entitlements people like this guy will pull their heads out of their asses. In the meantime, it's more grist for the right-wing media mill: Next up on Fox: Is it fair for liberals to accuse Justice Scalia of sodomy?
posted by felix betachat at 6:43 PM on April 15, 2005

Law students who'd protest the appearance of a Supreme Court justice at their law school, with rhyming chants no less, are contemptible oafs. Law is a profession for serious people, not whining hippies.
posted by MattD at 7:03 PM on April 15, 2005

"Do you sodomize your wife?"

Dipshit.

To put some context, Scalia isn't about what the particular right is - he's all about only protecting things that are explicit in the Constitution. Everything else, in his book, is left up to a vote. If people wanted to vote to legalize sodomy then he'd be all for it...
posted by thedevildancedlightly at 7:03 PM on April 15, 2005

To elaborate - Scalia is not against [sodomy|flag-burning|etc], he's against the Supreme Court inventing new "fundamental rights" that need to be protected. If a state wanted to legalize [sodomy|flag-burning|etc] then they would be free to so long as there was not an explicit prohibition on that in the Constitution.

It's quite possible that he's pro-sodomy, and if he lives in a state where there is no sodomy law then he could pratice it without being a hypocrite at all. For all I know he really enjoys it.
posted by thedevildancedlightly at 7:06 PM on April 15, 2005

Now you can question whether originalism is a good Constitutional interpretive scheme or not, but calling Scalia "anti-sodomy" is like calling a public defender "pro-murder."
posted by thedevildancedlightly at 7:07 PM on April 15, 2005

As long as sexuality is regulated by legislation, these sorts of questions should be a part of the discourse ("Do you sodomize your wife?").

Uncomfortable? Well, maybe you should be. But if we can discuss the validity of one group's sexuality in a public forum, then it's fair to talk about anyone's sexuality in a public forum -- even that of a Supreme Court Justice.

Anyway, I think his response posted on Wonkette is right on. Good for him.
posted by chasing at 7:20 PM on April 15, 2005

The follow-up question was therefore blunt, but not illegitimate or boorish and certainly was not the type of question asked by an idiot.

The follow-up question was impertinent. What felix betachat said about harming his own cause. Just imagine if the student had posed a similar question, "Justice Scalia, what about heterosexual sodomy?"

thedevildancedlightly: The five justice majority (of which Justice Scalia was part) in Texas v. Johnson (1989) held that the First Amendment forbid the criminal prosecution of someone for flag burning despite there being no "explicit prohibition" of flag burning in the Constitution or Bill of Rights.
posted by MLIS at 7:43 PM on April 15, 2005

Antonin Scalia is an advanced teledildonics experiment impersonating a Supreme Court Justice and a human being at the same time. We forget this at our peril.
posted by trondant at 7:57 PM on April 15, 2005

MLIS: The first question involved whether the state had the an interest in intruding into the private life of the individual. The questioner could have gone from the general to the specific or personal - and asked whether the justice thought sodomizing his wife should be illegal - and made a vastly stronger statement (Maybe he was thinking of asking that until being more or less cut off? I can't tell from the article, although he suggests that Scalia's earlier snarkiness also played a role in the question. That's context too.), but bringing Scalia the man into the picture - making it personal, in short - wasn't altogether wrong.
posted by raysmj at 7:58 PM on April 15, 2005

Scalia is not against [sodomy|flag-burning|etc], he's against the Supreme Court inventing new "fundamental rights" that need to be protected

No, that's what Scalia says he's against. In action, he's only a strict constructionist when that means conservative stuff wins; it's just the justification he provides for making conservative decisions.
posted by ROU_Xenophobe at 8:03 PM on April 15, 2005

Just imagine if the student had posed a similar question, "Justice Scalia, what about heterosexual sodomy?"

Then no one would care.
posted by euphorb at 8:04 PM on April 15, 2005

The esteemed Rapid Offensive Unit Xenophobe has it exactly right. Scalia's position on this issue is about his own bigotry, not about being a constructionalist. It is exactly analogous to the old racists of the pre-Civil War south who were pro-State's Rights as long as it was the slave state's rights being protected and pro-Federal Government as long as it was the free state's rights being trampled. See: Dred Scott and the Fugitive Slave Laws for proof.

He's a bigot. This is clear to anyone paying attention. He is a brilliant, erudite, scholarly bigot but still a bigot.
posted by Justinian at 8:17 PM on April 15, 2005

Seems to me the kid was in the right, though he probably should have prefaced the question with, "well, since you think that the state has the right to invade privacy in such a way, how would you feel if I asked you..." At least then he might not have been cut off immediately.

You know, I gotta think that things are not going to get better for the progressive left until these public displays of moral rectitude are rejected as the temper-tantrums that they are.

Yeah, because the right always gets called on THEIR temper-tantrums. Please. I'm all for reasoned discourse, but I'm sick of the attitude propounded by some that the left should for some reason tie one arm behind its back when the right has no problem fighting dirty.
posted by papakwanz at 8:22 PM on April 15, 2005

I'm at NYU Law and though the actions of this guy and the protesters outside have made my inbox explode and made the last few days a little more interesting, I can't say I approve.

What I can say is that it looks as though the protests were organized by independant members of the law school and possibly the community, but not by any law student organization.
posted by lorrer at 8:34 PM on April 15, 2005

Is my sarcasm detector broken? If MattD was trying to be sarcastic, that was brilliant. If he was trying to be serious, he can go hang. Way to make us all look like pathetic dorks, not to mention the way you assume that becoming a lawyer immediately means you have to lose all social consciousness. Bloody hell, have fun in a corporate office being exactly what the public hates about lawyers...

On topic: ...probed. Heh.
posted by livii at 8:40 PM on April 15, 2005

I want to know what quonsar thinks!
posted by davy at 8:43 PM on April 15, 2005

Justice Scalia believes that it is acceptable to have a law criminalizing sodomy. This student asked Justice Scalia whether he had broken this law.

It's in the same vein as asking Lars Ulrich whether he had copied music before, or asking an anti-marijuana crusader whether they've smoked a few joints.

The difference is, America is afraid of sexuality. Asking a man whether he commits a sex act with his wife is considered "rude". Justice Scalia, by accepting that the government has a right to make laws about such actions, opens himself up to scrutiny over those same actions. This is a common problem with many authority figures, believing they are above the laws they fight for so vocally. In Scalia's case, he has a lifetime appointment. There is no conservative voter base to appease, he is acting on what is fair to assume are his true feelings on the matter. So his response, or rather, lack of one is one of the most blatant displays of pure hypocrisy I've seen.

Mr. Antonin Scalia, do you sodomize your wife?
posted by Saydur at 9:00 PM on April 15, 2005

I want to know what quonsar thinks!

about sodomizing Scalia's wife?
posted by gyc at 9:07 PM on April 15, 2005

Law students who'd protest the appearance of a Supreme Court justice at their law school, with rhyming chants no less, are contemptible oafs. Law is a profession for serious people, not whining hippies.

MattD, I usually like your voice-of-reason contrarian point of view, but this is just an asinine statement. Law students can't protest like everyone else? Why the fuck not? And how in the hell can you characterize disagreeing with SCOTUS as inherently not "serious?"

Also, what ROU_Xenophobe and Justinian said. I have a special hatred for the hypocritical "conservative" assholes who selectively apply anti-federalism and strict constructivism. As a believer in anti-federalism, I am irate that racist hypocrites have given states' rights — a legitimate, worthy ideal — a bad name and prevented it from ever being taken seriously as a doctrine. Scalia seems, as far as I can tell, to be more of the same. Screw him.
posted by IshmaelGraves at 9:09 PM on April 15, 2005

Scalia is not against [sodomy|flag-burning|etc], he's against the Supreme Court inventing new "fundamental rights" that need to be protected.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
posted by prak at 9:30 PM on April 15, 2005

Scalia may or may not be anti-sodomy (though I think he is anti), but there's no doubt he's anti-gay. And you don't need to parse his words to figure that out.
posted by blucevalo at 10:08 PM on April 15, 2005

Scalia is not against [sodomy|flag-burning|etc], he's against the Supreme Court inventing new "fundamental rights" that need to be protected

Did you like ... miss the 2000 "(s)election" entirely?
posted by RavinDave at 11:52 PM on April 15, 2005

What ROU_Xenophobe and Justinian said.
posted by LittleMissCranky at 5:53 AM on April 16, 2005

The problem, prak, is that Scalia does not believe the 9th Amendment exists. At numerous times, either directly or indirectly, he's stated that rights not enumerated in the Constitution *don't exist*. His standard response when questioning some right not specifically outlined in the Constitution (even, and I'm not making this up, saying that biometric ID cards aren't covered by the 4th Amendment because the FFs didn't mention biometrics) is that Congress should make laws whenever you want a new right.

This is a terrifyingly anti-American view. Our country was founded on the idea of natural rights that, like the laws of gravity, simply *ARE* and are derived from no earthly source. To say a right doesn't exist, or isn't protected, until the *government* says it is, is about the most dangerously authoritarian idea currently in American politics. Since, at any point, the government can just say "NO!".

And then where are you?
posted by InnocentBystander at 6:42 AM on April 16, 2005

First they came for those who sodomized Scalia's wife...
posted by UKnowForKids at 6:47 AM on April 16, 2005

Yeah, because the right always gets called on THEIR temper-tantrums. Please. I'm all for reasoned discourse, but I'm sick of the attitude propounded by some that the left should for some reason tie one arm behind its back when the right has no problem fighting dirty.

papakwanz: That's not the point. There's no referee in this game. For some reason the American electorate has for the last 20 years been more tolerant of right-wing posturing. I suspect it's because sixties radicals made such asses of themselves in the seventies. One hopes that the right, as it panders more and more to the fundamentalist fringe, will be similarly hoist on its own petard.

The point is not that the left observe some sort of Queensbury Rules that the right doesn't, it's that progressives need to think strategically before they act. I think this guy's an idiot because he's shot himself in the foot and he doesn't see it.
posted by felix betachat at 7:18 AM on April 16, 2005

Berndt's email at Wonkette is one of the best things I've read in at least a year. The man is exactly right. There is a time for the tactics of Dr. King and Gandhi, and there is a time when it is clear those tactics are no longer enough.

Berndt did not shoot himself in the foot; what history will record is that this law student instantly and completely eviscerated Scalia's stated position. If that simple question is unworthy of an answer in Scalia's case, then it is unworthy of an answer in anybody else's case, too -- the point being that what you do in the privacy of your bedroom is nobody else's damn business. All Berndt did was hold up a mirror to those prying eyes that want to marginalize him for his private preferences. If those eyes didn't like what they saw in that mirror, is it Berndt's fault?
posted by localroger at 7:48 AM on April 16, 2005

For some reason the American electorate has for the last 20 years been more tolerant of right-wing posturing. I suspect it's because sixties radicals made such asses of themselves in the seventies.

I don't think that the electorate is merely "more tolerant of right-wing posturing." The American electorate is also more accepting of the right-wing's values.

In this instance, what would "thinking strategically" before you act entail, exactly? And how will progressives "thinking strategically" make the American electorate (and the American media) more "tolerant" of progressives than they are now?
posted by blucevalo at 7:54 AM on April 16, 2005

Well, the big difference is that the "right wing posturing" (things said by Rush Limbaugh and his ilk) generally appeals on a more visceral, gut emotional level than their equidistant opposites. It's very easy to say "They hate us and want to kill us! We must kill them first!" and get a lot of people to agree with you. And sometimes it's true. It's a lot harder to convince people, "We have to understand our opponents and seek a solution which doesn't escalate the circle of violence." This is also sometimes true, but far more cerebral and harder to sell to the public at large.
posted by InnocentBystander at 8:06 AM on April 16, 2005

Scalia on his "originalist" interpretation of the Constitution while speaking at W&L.
posted by trey at 8:51 AM on April 16, 2005

Ninth ammendment, ninth ammendment, ninth ammendment!
Ok, briefly, for MattD and DevilDanced, who missed their political theory classes: The government exists to protect rights, not to abrogate them. We have certain ennumerated rights which are supposed to get the strongest protection, but even those are just the rights that had been most abused by the British colonial government, and hence were the most contentious. The right to privacy, say, had already been established under English common law, and was not understood to need to be ennumerated (and certainly may fall under the penumbra of the fourth ammendment). And the bullshit about the Constitution not being a living document can pretty well be refuted by the writings of Madison and Jefferson when they were in office. For example, Madison acceded to the Marbury decision in part because having ignored it would have begat a constitutional crisis, but in the end he resigned himself to viewing the constitution as a document that changed through the interpretation of the people who lived under it.
Something that must gall you two, and people like Scalia, is that the writers of the constitution were Liberals (big L), and as such were concerned with the specific protection of minority rights. Majorities are usually pretty good at protecting their own rights, but it's minorities that need a government in order to ensure justice. That's a fundemental part of America that people like Scalia would have us forget.
This kid that asked about the sodomy did right. Now he's gotta do right again: he's gotta spin the post-event media to make sure that his side gets out. But his reasons were just, his question was just, and his tactics were just. The rest of us that agree with him can do him some good by pointing that out instead of being whiners who mope about how this may have cost us some political capitol.
posted by klangklangston at 9:31 AM on April 16, 2005

In this instance, what would "thinking strategically" before you act entail, exactly?

Here, I think it should have occurred to the guy that, if Americans prize anything, it's the privacy of family relations. Sure, we love to see people fuck up, and the nasty public divorce is a spectator sport, but for apparently law-abiding heterosexual citizens, the bedroom is off limits. That's a fact. Until there's blood in the water, you're fucked if you try to bite.

I recognize that attacking heterosexual privilege was this guy's point, but you can't argue with the electorate that way. That's why I think that the absolute best card that gay rights activists have to play is the normalcy card. More pictures of gay dads taking their kids to soccer practice. The NYT magazine piece a few months ago about the lesbian mothers in NYC was a perfect example of this.

You think it's demeaning to have to present an aggressively suburban face to the masses? Suck it up. You play the best hand you can with the cards you've got or you lose.

And how will progressives "thinking strategically" make the American electorate (and the American media) more "tolerant" of progressives than they are now?

This one follows naturally on the first. If the mainstream electorate thinks of gays and lesbians as people like them rather than weird fringe elements, they'll be more likely to treat them with empathy and concern. Asking Scalia if he ass-fucks his wife "reminds" people that gays don't operate within the bounds of polite conduct. Asking Scalia in a reasoned and respectful manner over and over and over again why he thinks that gays don't deserve the same rights and protections that straights enjoy keeps the pressure on and helps change minds. In time, if mainstream straight society thinks of gays and lesbians as people like them, these right-wing homophobes will look more and more like the assholes they are.

Why did Rosa Parks make such a compelling image? Because she was a tired working woman who just wanted to ride the bus home. When did the civil rights movement go seriously off the rails? When the Black Panthers started arming themselves.
posted by felix betachat at 9:47 AM on April 16, 2005

Scalia is pro-orgy too, isn't he? Hasn't he spoken in print about that or at a speech or something?

Why not ask him about the very private conduct he ruled upon in public, in public? He talked about it in the Supreme Court; we can talk about it at NYU.

and ROU is absolutely right--where were his strict principles and reasoning in Bush v. Gore in 2000?

felix, sodomy is not a fringe element--teens are doing it in record numbers nowadays, and many fine, upstanding suburban straight and gay couples do it. and I think having something be the subject of a Supreme Ct. case tends to remove it from the fringe element category.
posted by amberglow at 10:01 AM on April 16, 2005

amberglow: I was talking about gays and lesbians generally being perceived as fringe, not how some of them prefer to fuck.

Sure it's becoming mainstream, but people still have very complex emotional associations around it. Most straights view it as a play of dominance and submission; even where it's enjoyed, it often has connotations of shame and degradation associated with it. Not always, obviously, but just because people are fucking that way doesn't necessarily mean they're ready to admit that they do it, let alone enjoy it.

Since much of the appeal of sodomy for straights is its transgressive associations, I hardly think it's an effective fundament on which to base an appeal for tolerance and recognition.
posted by felix betachat at 10:54 AM on April 16, 2005

It was the Supreme Court sodomy case that laid the groundwork for the marriage cases that will definitely be coming before the Supreme Court. If we can't even talk about that with one of the judges involved, and who will be involved in the marriage cases too, then there's no hope for this society. Scalia himself recognized that the sodomy case ensured that marriage would be affirmed too. And grow up--just because some people are squeamish doesn't mean that you can't talk about relevant topics or people seen as "fringe".

Scalia has never been squeamish in his decisions, nor in any of his interviews or speeches--why should we? Why aren't we as priviledged with free speech as him?
posted by amberglow at 12:20 PM on April 16, 2005

"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."

Bravo, Eric Berndt!
posted by ericb at 12:31 PM on April 16, 2005

ag: Of course you have your free speech rights. But I believe an opportunity was lost. As the endless fawning profiles of Justice Scalia point out, he enjoys "intellectual combat" and was a law professor at Chicago.

When the student asked the question that way, he gave Scalia an easy out not to answer it. Was it emotionally satisfying to ask the question? I'm sure it was. Was it productive or helpful? I don't think so.

Imagine if the question had been phrased in a way that Scalia would have had to answer. I mean, its like the code of the gunslinger: If Scalia had declined to answer a serious question he would have lost face.
posted by MLIS at 12:33 PM on April 16, 2005

Law students who'd protest the appearance of a Supreme Court justice at their law school, with rhyming chants no less, are contemptible oafs. Law is a profession for serious people, not whining hippies.

Sad...oh, so very sad.
posted by ericb at 12:36 PM on April 16, 2005

On preview: I'm with livii: "Is my sarcasm detector broken? If MattD was trying to be sarcastic, that was brilliant. If he was trying to be serious, he can go hang."
posted by ericb at 12:39 PM on April 16, 2005

Law is a profession for serious people, not whining hippies.

How about serious hippies?
posted by homunculus at 12:51 PM on April 16, 2005

Felix: The idea that the civil rights movement went bad when the Panthers armed themselves is revisionist bullshit. Talk to, say, the guys from the Last Poets some time about militancy and the civil rights movement. The civil rights movement went bad under Reagan, after most of the visible goals had been accomplished and the resistance was amped up by resurgent conservatives.
posted by klangklangston at 1:42 PM on April 16, 2005

Sodomites for Scalia (pandagon) -- ... Now, some people think that this question was perfectly fair, on the theory that if Scalia wants us lesser human beings who aren't him or his friends to fling our doors open and have our lives inspected for deviance or our bedsheets inspected for traces of santorum, then he should also offer up his sex life for inspection. However, I feel this is unbearable cruelty. I mean, we're liberals--can it be right to humiliate social conservatives like Scalia, who are fellow human beings, by asking them to cough up the litany of bedroom inadequacies that compel them to turn over every rock to make sure that if they can't have fun, no one can?

Okay, I'm guilty. Hell, I just finished writing a post where I accused Ass-bracket of projecting personal problems on beauty pagents instead of getting a proper Viagra prescription. But maybe it's time we all had a bit more compassion. While it's good for a giggle to wonder out loud if Scalia travels the Hershey highway, we have to consider how humiliating it must be for him to be reminded of that one time he tried to play it off like he meant to do it right, but just missed and his wife didn't believe him. ...
posted by amberglow at 2:00 PM on April 16, 2005

klangklangston: I guess I decided to be a "bullshit revisionist" after meeting Bobby Seale and asking him about the decision to arm the Panthers. He said he wished they'd been taking photographs instead.

The Last Poets, though...those fuckers don't return my calls.
posted by felix betachat at 3:15 PM on April 16, 2005

If the mainstream electorate thinks of gays and lesbians as people like them rather than weird fringe elements, they'll be more likely to treat them with empathy and concern. Asking Scalia if he ass-fucks his wife "reminds" people that gays don't operate within the bounds of polite conduct. Asking Scalia in a reasoned and respectful manner over and over and over again why he thinks that gays don't deserve the same rights and protections that straights enjoy keeps the pressure on and helps change minds. In time, if mainstream straight society thinks of gays and lesbians as people like them, these right-wing homophobes will look more and more like the assholes they are.

Felix, I agree with you, to a point, and I like to imagine that if I had been in that audience member's place I would have asked a polite question of Justice Scalia in a way similar to that you describe.

But if the "assholes" don't bother to respect bounds of rational discourse, and systematically shout people down who try to politely ask why things are going in the direction that they are going, what is it that will make the tactic of reasoned questioning over and over again (as though Scalia would have allowed more than one such question before abruptly moving on to a more sympathetic line of inquiry) work? The media and the culture are geared toward hard-edged partsian loudmouthery. What about reasoned discourse works against that? I know that rational discourse is the right thing. But is it what will work?

I think we are getting to the point where rational discourse is no longer paid much attention.
posted by blucevalo at 8:39 PM on April 16, 2005

By the by.
posted by peacay at 5:03 AM on April 17, 2005

As I believe peacay is trying to point out... oral sex is sodomy in many states, and other things are defined which are very common, if not in reality, at least in straight men's fantasy world.
posted by petrilli at 8:09 AM on April 17, 2005

That's all the more reason it shouldn't be hidden or seen as not proper to talk about, no? Especially when it's being legislated and there are court judgements about it.
posted by amberglow at 8:59 AM on April 17, 2005

petrilli...please don't try to put a construct on my link/post that has no basis in fact.
I posted the sodomy laws link because this thread no doubt will attract many people who are directly interested both in Scalia/NYU happenstance and legal news about homosexuality from around the world. There is no editorialship other than link choice......not that there's anything wrong with that. I just happened to find this sodomy laws link whilst trawling haphazardly later on...it was on topic soooooo...
posted by peacay at 11:00 PM on April 17, 2005

You know the more I read this, the more asinine and immature the question is. All you have to do is read Scalia's opinions to see he is more a Donkey-Punch kinda guy.
posted by MiltonRandKalman at 5:03 PM on April 18, 2005