[Reader-list] Let's talk about issues. (fwd) - more on Scalia and Sodomy

[S Datta]

following up on the post vivek forwarded yesterday, here's more from the guy
who asked scalia about whether he buggers his wife, via a friend who goes to
NYU law school with him. enjoy!!

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for those of you were impressed by eric's first post that got
published in the nation, here's a later post that deals more with
legal issues.

---------- Forwarded message ----------
To: American Constitution Society at NYU Law <law-acs at forums.nyu.edu>
Date: Mon, 18 Apr 2005 05:10:26 -0400
Subject: Let's talk about issues.
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.

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