Wed 13 Apr 2005
Supreme Court Justice Antonin Scalia was at NYU yesterday, and Bert Leatherman ‘00 was there.
“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.”
Not all of us.
April 14th, 2005 at 5:37 pm
This is brilliant. One protestor asked Scalia if he sodomized his wife. Scalia replied that the question was unworthy of an answer. Of course, his sodomy is private because he’s not homosexual.
April 14th, 2005 at 11:19 pm
No, he didn’t answer because the question was rude and disrespectful. NYU will never catch Columbia with stupid students like that.
April 15th, 2005 at 12:12 am
Yeah, it’s pretty rude and disrespectful to ask someone publicly about his private sexual conduct. I think it’s a lot ruder and more disrespectful to arrest them for it.
April 15th, 2005 at 8:24 am
There’s a difference between Scalia’s legal reasoning in the case in question (in which he asserts that there’s no constitutional right of privacy) and the stupidity of the question asked at this session, which did nothing to elucidate the argument and was only rude.
April 15th, 2005 at 9:36 pm
In Lawrence vs. Texas, the majority of the Supreme Court substituted its personal opinion for that of the Texas legislature elected by the citizens of Texas. Legislatures are not perfect. Justice Thomas said the law was a silly law and if he were on the Texas legislature, he would vote against it. Every state has some silly laws. To suggest there is a right of privacy for sodomy is nonsense. When the Constitution was written, few dared disclose they engaged in homosexual acts for fear of imprisonment, death or some other horrible outcome. To suggest that the Framers wanted to protect sodomy as a Constitutional right is to ignore every aspect of the Constitution and simply legislate from the bench. If indeed there is a right of privacy for private sodomy, then surely one has the right to engage in private sodomy with his property such as with animals. My point is that there are consequences when the Supreme Court substitutes its opinion for that of the people.
April 16th, 2005 at 2:35 am
No, to suggest that this particular law is legitimate because every state has some silly ones is ridiculous. Also, to suggest that consensual sodomy between two humans is the same as sodomy between a willing human and a most likely unwilling (and if not, then unable to make a decision or express intent) animal is even more ridiculous. I find it odd that you can’t see the obvious distinction there. We do have some pretty not-silly laws on the books for protecting animals from abuse.
I would hope that the opinion of the people would support the right to privacy between consenting adults, and I think the framers would have supported that. But to suggest that we should consider this law in the context of the framer’s time is inherently anachronistic — the framers didn’t respect the rights of blacks, which is arguably a function of the period in which they lived, but we’ve reinterpreted that to allow for fairness and tolerance. I see no difference here.
Why should there be a law against sodomy? I’m offended that the government would even want to spend my tax dollars to enforce a ban on something that hurts no one.
I agree with the questioner’s point: if we ban sodomy between consenting homosexuals, then what’s to stop people from banning it between consenting heterosexuals? I think it’s ridiculous that the guy personalized it and targeted Scalia, and I think it was right that Scalia refused to answer. It’s sad, though, that we didn’t hear a straight answer on this from him because of the question.
April 16th, 2005 at 11:02 am
OK, as somebody actually in law school, I’m going to step in here for a second and provide some information that seems to be lacking from the non-legal analyses above.
The issue, Todd, wasn’t an evaluation of the sillyness of the statute or of the merits of criminalizing and decriminalizing homosexual sodomy. Since homosexuals are not a constitutionally protected class, any law discriminating on sexual orientation needs only to pass the “Rational Basis” test, which is whether or not the Texas Legislature could reasonably conclude that this law would effectuate a state interest.
Note that it’s not whether the law would accomplish some state interest — it’s whether they could reasonably think it would do so. I unreservedly agree with Justice Thomas’ dissent, but it’s almost absurdly easy to think of possible state interests that this statute could effectuate.
Again, the difference between race (and sex) and orientation (and age) is that the former are protected classes and the later is not, and are therefore subject to “Strict Scrutiny” on one hand and “Rational Basis Scrutiny” on the other.
Additionally, it doesn’t matter what the framers thought of people of other races because we’ve taken care of that through various amendments. If you want to give constitutionally-protected status to sexual orientation, it will require an amendment. To do otherwise, no matter how justified the outcome, is the worst sort of “the ends justify the means” and eviscerates both the rule of law and even the pretense of judicial restraint that we have today, helping pave that road to Hell.
Also, Todd, I didn’t realize that you paid Texas taxes… so how are your tax dollars at risk? I wish that paying tax dollars gave us policy input (especially in other states!) aside from voting… but oh well.
April 16th, 2005 at 2:00 pm
Lowell: I didn’t say Texas. I pay North Carolina taxes, and we still have provisions against “crimes against nature”. They don’t enforce except to get out of holes (if you’ll pardon the pun) in other laws, so it’s tolerable, but it’s still fairly ridiculous to think that the police, if they chose, could arrest consenting adults for sodomy here.
A for the point on the framers, my point is that you can’t go around saying that because homosexuality was discriminated against when the framers were around, we should discriminate against it today.
Does it not strike you as silly, Lowell, that the issue is only:
whether or not the Texas Legislature could reasonably conclude that this law would effectuate a state interest.
a) I don’t think the state should have an interest in preventing consensual sex.
b) I don’t think the state should be allowed to regulate such things even if a majority of its citizens do have an interest in regulating them.
and
c) Just to reprise my point from above, I don’t really see how animals fall under the category of “consensual sex”. I think it’s pretty ridiculous to suggest that providing protection for sodomy somehow makes animal abuse legal.
I don’t see why you need to have constitutional protection for homosexuals specifically to make it illegal to regulate consensual sex. I really don’t see why this should have much to do with whether the participants are homosexual or heterosexual at all. And, as you so happily point out, I’m not in law school, so I don’t know specifically what needs to change to fix it. I just thought I’d throw my two cents in on EphBlog, and didn’t realize I had to be preparing for the bar to be taken seriously. Perhaps you could enlighten me further.
April 16th, 2005 at 4:16 pm
First off, I didn’t mean to sound harsh in my post, nor did I intend to belittle your comments because you’re not in law school. It wasn’t my intention, but I often have that effect without even trying. Realizing that people were focusing on the merits of criminalizing homosexual sodomy, I was trying to point out that they were missing the positive angle. I’m not saying that you need to be preparing for the bar to offer your normative opinions, just saying that when discussing legal matters, not only is it important to distinguish between the normative and the positive, but also to be clear on exactly what the court said and exactly what it was determining.
The issue isn’t about preventing consensual sex, or about constitutional protections for it. It doesn’t have to do with the orientation of the participants. What it does have to do with is the appropriate level of deference to the state legislature. The issue is whether or not Texas could possibly effectuate some sort of state interest in banning homosexual sodomy. The state interest need not be overriding or compelling. There just has to be one. (Which is why I didn’t even address the bestiality point, as the consent isn’t the issue. The issue in that case is that the state has verious interests in preventing it, regardless of the merits of actually preventing it)
The mistake that people are making (and it’s excusable for those not in law school but certainly not for the ranters at NYU) is that the Court wasn’t ruling about the merits of the law, or whether it was a good idea, or whether it was even justified or rational. They were just ruling on whether it was allowed, not whether it should be allowed.
I think that what is getting lost in this whole debate is the “is/ought” distinction. I think that we agree for the most part on the “ought”. But this case is about the “is”.
It doesn’t strike me as silly at all as a positive matter, but certainly does as a normative matter. That rational basis test is ALWAYS the standard of review for something for any law that does not discriminate based on the protected classes of race, national origin, or religion (or even a quasi-protected class like sex, which is why women aren’t subject to the draft and why insurance companies, haircutters, and drycleaners can charge different rates for men and women). That’s not a normative distinction, it’s a positive one. I’m just talking about what the law is, not what it should be. Regardless of our personal opinions on the matter, that’s the standard of review for discrimination against groups who aren’t specifically protected by the Constitution. If you’re interested in the levels of scrutiny, here’s something that might be helpful.
It’s also important to differentiate between personal views and legal views. Scalia, regardless of his personal opinions, is nothing BUT a stickler for the rules. As he said recently, “You look to the text and you say: What did that text mean to society when it was adopted? Once I find out what that is, you’ve got me. I’m handcuffed. I can’t do the mean and nasty conservative things I want to do. I can’t stop scruffy, sandal-wearing people from burning the flag.” In that case, his was the deciding vote in a 5-4 decision holding that burning the flag was constitutionally-protected speech under the 1st amendment.
Again, like Thomas, I think that the Texas statute was allowable, but mindblowing stupid. Normatively, I think this law is awful and is wrong, stupid, ill-conceived, short-sighted. Yet as a positive matter, I can’t say that it couldn’t possibly serve at least one state interest. I can think of several, right off the top of my head, although I some on their face as wrongheaded and others as coming down on the wrong side of a cost-benefits analysis.
But what I think is a good idea shouldn’t be determinative for Texans, who under the constitution, do and should have the right to determine for themselves what is and is not legal in the state, as do citizens of other states. It goes back to Brandeis’ concept of the states being “laboratories of democracy”, showing different costs and benefits in the free market of ideas. Since sexual orientation is not a protected class, and the law (arguably) passes the rational basis test, I see no problem in letting Texas make stupid decisions that don’t affect other states. Just as I have no problem with various states giving marriage-type benefits to same-sex couples who sign a contractual agreement.
If this case were about the police busting in and targeting homosexual couples, I think it would be a lot stronger. In fact, the reason there aren’t more of these cases is because they’re almost never discovered due the 4th amendment prohibition against illegal searches and seizures. Even in Texas, I doubt any judge would grant a warrant just to see if people were engaging in homosexual sex. Yet, if the police answer a 911 call, and walk into a residence after knocking (with no answer) to discover 2 men in flagrante delicto, their hands are tied, as in this case. I’d hope that the prosecutors would be smart enough to leave it alone and exercise prosecutorial discretion, but again, I’m not them.
I’d love it if states decriminalized all consensual sex between adults. I might even take it farther than you, as I have no problem whatsoever with allowing people to consent to sex for money, like a good libertarian. But there’s not even one whole state where prostitution is legal — just in certain counties in Nevada, as far as I know. While I hold certain normative views, I’m reluctant to impress those views upon the nation as whole, especially in a way that would violate the Constitution. I have no problem letting Texas be stupid and suffer the consequences of its own stupidity.
April 16th, 2005 at 7:56 pm
I can’t believe the real Aidan Finley actually disapproves of the question in question. The Aidan I know would only be jealous that someone beat him to an offensive punchline.
April 16th, 2005 at 8:01 pm
I just can’t believe the real Aidan Finley disapproves of the original question to Scalia. That kind of remark seems right up his alley. So much so, in fact, that I suspect Aidan’s comment was motivated purely by sour grapes–someone beat him to an offensive punchline.
April 16th, 2005 at 9:25 pm
Lawrence v. Texas raises the classic question of whether the ends justify the means. The ends (stay out of my bedroom) make a lot of sense to just about everyone I know. The means (U.S. Supreme Court passes legislation by abusing its power to interpret the Constitution) is a problem. Good, bad, or stupid laws should be enacted or reversed by legislatures elected by the citizens who have to abide by the law rather than an unelected judicial body which chooses to implement its personal opinion even if that personal opinion is “right”. I would rather have to live with stupid laws like the one in Texas than have courts think they are legislators. One day court may start enacting laws that are “wrong”. If that happens, you can’t throw out court precedent in the next election.
As to the sex with animals, you dismiss my analysis too easily. To clarify, here’s an example. Farmer Brown buys a cow at auction which he will ultimately kill, cut up, and sell to your local burger chain. He takes the cow to his private home and has sex with the cow in private. The cow is not injured (other than his pride assuming he knows what is going on). Farmer Brown’s Constitutional right of privacy protects his private sexual behavior from government interference. The cow has no constitutional rights (sorry, PETA) because the cow is property. If the State of Texas has a law prohibiting sex with cows, that law would be unconstitutional using the logic of the majority in Lawrence v. Texas. This unappealing result illustrates why Court should not assume the role of legislators even if they pass “good” laws like getting rid of the ban on sodomy.
April 16th, 2005 at 9:39 pm
I think that Lowell, as a law student, is assuming that what Scalia says he believes is what he actually does believe. In other words, he is confusing Scalia’s words with Scalia’s ideas/beliefs. I think Scalia’s legalese about stare decisis serves a justificatory purpose; his personal aversion to homosexuals shines through in his conclusion. He’s not some noble constructionist who has always held these principles; rather, he’s invoking them now because it serves his ideological purpose.
April 16th, 2005 at 11:13 pm
Ronit, it appears from my studies that Scalia’s remarkably consistent about those views (c.f., the flag-burning case - Texas v. Johnson) that clearly contradict his own personal opinions.
How do you reconcile Scalia’s (1) holding that the 1st amendment allows flag burning, (2) broad construction of the 4th amendment, (3) strong support for criminal defendants and (4) holding that massive punitive damages in tort do not constitute “cruel and unusual punishment” nor that the “shock the conscience of the court” standard has any constitutional basis whatsoever with your assertion that he’s a political opportunist who only uses textualism when it supports his goals?
I submit that his record (from which I’ve excerpted above) supports my assertion, as his political and personal beliefs, if the “Ronit Hypothesis” were true, would have resulted in sharply different opinions and rulings by Scalia throughout his rulings.
Rather, in the case of Lawrence, it’s a case where Scalia’s personal and judicial views just so happen to align. That might account for some of his tone (though I’d suggest that it’s more his contempt for the ends-justify-the-means holding of the majority and disdain for their markedly inconsistent rulings), but it don’t affect his holding. While I disagree sharply with his personal and political opinions, I would be bound to rule the same way if I were in his place regardless of how distasteful I found the outcome to be.
April 17th, 2005 at 4:03 am
Lowell: Rather, in the case of Lawrence, it’s a case where Scalia’s personal and judicial views just so happen to align.
Do I sense an admission (shock! horror!) that Scalia actually doesn’t like same-sex relationships? And, therefore, the question asked by the protestor was really quite understandable: if you think that the government can justifiably intrude into same-sex sodomy, why can’t we inquire about your sodomy with your wife?
April 17th, 2005 at 11:57 am
Ronit: like I said before, the questioner’s point is valid, but the way he asked it was completely stupid. Yes, we should be asking whether it is fair to pass and enforce laws banning homosexual sodomy, as they will most likely not be enforced for heterosexuals who do the same thing. But taking that debate to Scalia himself does nothing to further the cause, it only pisses off Scalia and most likely a whole slew of other people who were present. Maybe you should read:
http://www.amazon.com/exec/obidos/tg/detail/-/0872205525/qid=1113753172/sr=8-1/ref=pd_csp_1/103-7881259-6999025?v=glance&s=books&n=507846
And pay careful attention to the section on ad-hominem attacks.
April 17th, 2005 at 1:06 pm
I have no problem admitting that Scalia (probably) doesn’t like same-sex relationships. That being said, there are several differences:
(1) As I mentioned previously, his probable personal antipathy to homosexuality didn’t have a bearing on his decision
(2) The state didn’t intrude on the heterosexual sodomy, snooping around into houses looking for it. Rather, the police responded to reports of a loud argument and a weapons charge and happened upon the conduct in question.
(3) The question was inapposite as the Texas statute did not concern heterosexual sodomy in the slightest (and note that O’Connor’s concurrence leaves open the possibility, and I’d say probability, of an orientation-neutral sodomy ban being Constitutional). Thus, what Scalia chooses to do with his wife outside of Texas was and is completely irrelevant to the question of whether or not the Texas legislature can pass a statute making homosexual sodomy a minor misdemeanor, unless Scalia were caught breaking a similar statute in a jurisdiction that had one.
April 17th, 2005 at 1:08 pm
(2) should say HOMOsexual sodomy (sorry)
April 17th, 2005 at 2:06 pm
Todd: Good book, I read it last year. This is ad hominem tu quoque, I guess. Unacceptable to a logician, but I think it’s all right to use it in rhetoric. It doesn’t help your argument, but it does (sometimes) help to show your opponent poorly.