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4/16/2005 10:55:00 PM | Ms. Anthrope

Does Scalia Sodomize His Wife? Guess we'll never know.

So... Some of you might have heard a little something about Justice Scalia's visit to NYU School of Law last Tuesday. More specifically, you might've heard something about how an NYU law student asked Scalia whether he sodomizes his wife. Underneath Their Robes, for instance, had this to say about The Question: http://underneaththeirrobes.blogs.com/main/2005/04/judicial_sighta_3.html.

As you can imagine, it's been a popular first date conversation starter here at the school all week. For the curious, here're some of the views from the inside.

From the student questioner:

Fellow Classmates,As the student who asked Justice Scalia about his sexual conduct, I amresponding to your posts to explain why I believe I had a right toconfront Justice Scalia in the manner I did Tuesday, why any gay orsympathetic person has that same right.It should be clear that I intended to be offensive, obnoxious, andinflammatory. There is a time to discuss and there are times when actsand opposition are necessary. Debate is useless when one participantdenies the full dignity of the other. How am I to docilely engage a manwho sarcastically rants about the “beauty of homosexual relationships” (atthe Q&A) and believes that gay school teachers will try to convertchildren to a homosexual lifestyle (at oral argument for Lawrence)? Although I my question was legally relevant, as I explain below, anindependent motivation for my speech-act was to simply subject ahomophobic government official to the same indignity to which he wouldsubject millions of gay Americans. It was partially a naked act ofresistance and a refusal to be silenced. I wanted to make him andeveryone in the room aware of the dehumanizing effect of trivializing suchan important relationship. Justice Scalia has no pity for the millions ofgay Americans on whom sodomy laws and official homophobia have such aneffect, 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 Justicedoes not require me to circumscribe my justified opposition and outragewithin the bounds of jurisprudential discourse. Law school and the lawprofession do not negate my identity as a member of an oppressed minorityconfronting injustice. Even so, I did have a legal point: JusticeKennedy’s majority opinion in Lawrence asked whether criminalizinghomosexual conduct advanced a state interest “which could justify theintrusion into the personal and private life of the individual.” Scaliadid not answer this question in his dissent because he believed the stateneed only assert a legitimate interest to defeat non-fundamentalliberties. I basically asked him this question again - it is now the lawof the land. He said he did not know whether the interest was significantenough. I then asked him if he sodomizes his wife to subject his intimaterelations to the scrutiny he cavalierly would allow others – by force, ifnecessary. Everyone knew at that moment how significant the interest is.Beyond exerting official power against homosexuals, Scalia is an outspokenand high-profile homophobe. After the aforementioned sarcastic remarksabout gay people’s relationships, can anyone doubt how little respect hehas for LGBT Americans? Even if no case touching gay rights ever camebefore him, his comments from the bench (that employmentnon-discrimination is some kind of “homosexual agenda,” etc.) and withinour very walls are unacceptable to any self-respecting gay person orprincipled opponent of discrimination. The idea that I should havetreated a man with such repugnant views with deference because he is ahigh government official evinces either a dangerously un-Americanacceptance of authority or insensitivity to the gay community’sgrievances.Friends have forwarded me emails complaining of the “liberal” student whoasked “the question.” That some of my classmates are shallow andinsensitive enough to conceptualize my complaint as mere partisan politicsis disheartening. Though I should not have to, I will share with everyonethat 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 asimple demand for equality under the law and outrage over being denied itfrom so much dogmatic ideological baggage.LGBT Americans are still a persecuted minority and our struggle for equalrights is still vital. 4 out of 5 LGBT kids are harassed in school – tellthem to debate their harassers. Suicide rates for them are much higherthan for others. We still cannot serve in the military, have littleprotection from employment and other forms of discrimination, and aredenied the 1000+ benefits that accrue from official recognition ofmarriage. I know some who support gay rights oppose my question and ourprotest. Do not presume to tell me when and with how much urgency tostand up for our rights. I am 17 months out of a lifelong closet and havelost too much time to heterosexist hegemony to tolerate those who say, asDr. King put it, “just wait.” If you cannot stomach a breach of decorumwhen justified outrage erupts then your support is nearly worthlessanyway. At least do not allow yourselves to become complicit indiscrimination by demanding obedience from its victims.Many of our classmates chose NYU over higher-ranked schools because of ourreputation as a “private university in the public service” and ourcommitment to certain values. We were the first law school to requirethat employers pledge not to discriminate on the basis of sexualorientation. Of Scalia’s law schools that have “signed on to thehomosexual agenda,” our signature stands out like John Hancock’s. We wona federal injunction in the FAIR litigation as an “expressive association”that counts acceptance of sexual orientation as a core value. Those whoworry about our school’s prestige should remember how we got here andconsider whether flattering those who mock what we believe and areotherwise willing to fight for appears prestigious or pathetic. Weprotestors did not embarrass NYU, Scalia embarrassed NYU. We stood up toa bigot for the values that make NYU more than a great place to learn thelaw.I repeat my willingess to discuss this issue calmly with anyone whorespects my identity as a gay man. I have had many productive talks withclassmates since Tuesday and I hope that will continue.


From another student (who wasn't at the event):

I must respectfully object to the way in which the Dean and many others atthe law school have described the "incident" during the question andanswer session with Justice Scalia. I understand that the question was shocking to many. Indeed, my own first reaction was shock andembarrassment. However, I believe that the Dean and the law schoolcommunity in general have been too quick to dismiss the question as rudeand silly without appreciating its point. Most importantly, as I shall make clear, I believe that such a quick dismissal avoids the reallyimportant issues that a law school committed to academic excellence has toface. I am somewhat troubled by the question that was asked of JusticeScalia, but I am most troubled by the hasty and facile disapproval of theadministration and many of my fellow students.
I do not know who asked the question, and so I cannot make any claimsabout his or her intent. I claim only that it impressed upon me apowerful point. The question and response demonstrated that JustcieScalia feels, on the one hand, it is appropriate for the state toinvestigate, interrogate and criminally punish other private citizens fortheir (consensual) sexual behavior, but on the other, he finds itdisrespectful to be asked such questions about his own personal sexualbehavior. There is, to say the least, a tension between these two beliefs. While there may be a difference between being asked about one's sexualbehavior in an academic setting and being asked it with the authorizationof a state legislature, it is very hard to see how that goes far enough inmaking the latter appropriate. If it is disrespectful to be asked inpublic about one’s sexual behavior, then it seems even more shocking andoffensive to allow the state to publicly question and condemn people forsuch behavior. The point is not simply that the question did a good jobof exposing an potential inconsistency in Scalia’s beliefs. Additionally,our feelings about the “incident” contain a pointed lesson for each of usin the real impact of an anti-sodomy law. To the extent that each of ushas found the question to be shocking and disrespectful, we should bereminded that laws which allow the state into our bedrooms threaten ourdignity.
If I am right that the question at least made an important point, thatdoes not mean we can’t also wonder whether there was something wrong withits being asked in that setting. But in order to learn from such aninvestigation, we should be careful in saying precisely what, if anything,was wrong with the question. For example, the Dean described the languageof the question as "offensive.” This I find to be incorrect and,therefore, a distraction from the real issue. While the question did notconform to the expectations of the community, the closest thing to"offensive language" in the question was the term "sodomize", preciselythe language of the Texas law and the Supreme Court decision at issue. There are many terms for the act in question which are offensive, but“sodomize” is not one of them. If something was wrong with this question,it wasn’t its language.
Instead, I would suggest that the question was bothersome simply becauseit was exceedingly personal, because it focused on a topic that many of ussimply do not feel comfortable talking openly about, and because it askedit of a person who we instinctively feel deserves to be treated with theutmost politeness and respect. The issue here is not at all about dirtylanguage, but about the boundaries of debate. It is about where thefreedom to ask difficult questions - which is essential to meaningful,intellectual debate - runs up against the boundaries of decorum andrespect.
I understand the Dean’s concern for decorum, but I believe that a lawschool committed to the highest academic standards and promising anenriching legal education should not be too quick to label questions asinappropriate, immature or offensive. Instead, we need to grapple withsome difficult questions. Most generally, we need to ask where academicfreedom gives way to decorum, but in this particular context there isanother extremely difficult question. I think we must ask whether anissue is as personal as the state’s role in our bedrooms can be adequatelydiscussed and appreciated without at some point making the questionspersonal. I fully advocate dispassionate and rational discussion ofanti-sodomy laws and privacy rights, but I am reluctant to put full trustin such a debate if it is too insulated from experience of the feelingsthat are at stake.
We, as a community, have chosen to learn from each other about issues ofthe most fundamental importance to our society. We have a responsibilityto each other, and to others we may affect throughout our careers, to do agood job of teaching each other. So, we ought to be careful before welabel certain kinds of questions as inappropriate or immature. In thiscase at least, I believe that we have lost sight of what we can learn fromthe incident.


From a third student (who was at the event):

Does anyone else feel that Scalia started his discussion in the Q&A in a manner that somewhat invited questions such as Erics? Before the question period began Scalia analogized finding basil in pizza sauce to finding abortion rights in the constitution... Could he have chosen any more controversial an issue to start off with? (or anymore religious?)...Also, throughout his speech he mockingly referred to "beautiful homosexual acts." He also admitted that he might not have voted with the majority in Brown v. the Board of Education... Some of his responses were incredibly snide, sarcastic and absolutely unnecessary to convey his preferance for "textualism"...b/c I had to watch the simulcast in Greenberg and am not on Annual Survey, I did not have an opportunity to engage Scalia in intellectual debate. The only forum available for being heard by Scalia was the protest. As a law student I think it is important to voice my concern with the passive aggressive, bigoted remarks Scalia made not only at the Q&A, but that also appear in his opinions. As a Catholic I think it is important to voice the fact that Scalia is treating people in a manner Jesus would find troubling and heart-breaking. I understand that it is important to respect student groups on campus- however, given the limited methods available to "speak truth to power", I found it much more important to join in the protest than to be silent so that Scalia could be "honored" in peace.



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