[Reader-list] "Justice Scalia, do you sodomize your wife?"]

[vivek at sarai.net]

Debriefing Scalia

<http://www.thenation.com/doc.mhtml?i=20050502&s=berndt>
[posted online on April 18, 2005]

Editors' Note: Justice Antonin Scalia got more than he
bargained for when he accepted the NYU Annual Survey of
American Law's invitation to engage students in a Q&A
session. Randomly selected to attend the limited-seating
and closed-to-the-press event, NYU law school student
Eric Berndt asked Scalia to explain his dissent in
Lawrence v. Texas, the 2003 Supreme Court case that
overturned Bowers v. Hardwick and struck down the
nation's sodomy laws. Not satisfied with Scalia's
answer, Berndt asked the Justice, "Do you sodomize your
wife?" Scalia demurred and law school administrators
promptly turned off Berndt's microphone. As Berndt
explains in his post to fellow law school students, it
was an entirely fair question to pose to a Justice whose
opinion--had it been in the majority--would have allowed
the state to ask that same question to thousands of gays
and lesbians, and to punish them if the answer is yes.
We reprint Berndt's open letter below.

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 [in oral
argument for Lawrence]?

Although 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. Four
out of five 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 1,000+
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 seventeen 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