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Scalia dodges

2005-04-14 20:25:19.096151+00 by Dan Lyke 19 comments

Student asks Scalia the pertinent question:

One gay student asked whether government had any business enacting and enforcing laws against consensual sodomy. Following Scalia's answer, the student asked a follow-up: 'Do you sodomize your wife?' The audience was shocked, especially since Mrs. Scalia [Maureen] was in attendance. The justice replied that the question was unworthy of an answer."

This article identifies the questioner as law student Eric Berndt. Mr. Berndt needs some public accolades!

[ related topics: Sexual Culture moron Law Marriage ]

comments in ascending chronological order (reverse):

#Comment Re: made: 2005-04-14 20:45:21.302446+00 by: Larry Burton

>> Mr. Berndt needs some public accolades!

While I can certainly understand your frustration with Justice Scalia Mr. Berndt's question was extremely crude and probably embarassed Mrs. Scalia who had no part in her husband's dessent.

#Comment Re: made: 2005-04-14 21:11:11.773518+00 by: Dan Lyke

If Mr. Scalia is going to assert that what happens between consenting adults in the bedroom is the government's business, and government is "of the people, by the people, for the people" then it is up to him to come clean to those very people about those activities which he seeks to regulate.

Yes, it was a crude embarassing question. Antonin Scalia deserved it, and if she hasn't filed for divorce and tried to distance herself from him, Maureen Scalia did too.

#Comment Re: made: 2005-04-14 22:02:59.449722+00 by: Jerry Kindall

That's the lamest thing I've read on the Internet this week, Dan. Luckily, the week's almost over.

#Comment Re: made: 2005-04-14 22:14:56.891256+00 by: Dan Lyke

's'okay, I'm sure I can start your week off right, too!

#Comment Re: made: 2005-04-14 23:11:35.857757+00 by: Larry Burton

>> Yes, it was a crude embarassing question. Antonin Scalia deserved it

But everyone else there didn't deserve to have to listen to the question. I've never liked that type of ambush question. I don't care how much I disagree with someone I feel bad for them whenever they get ambushed like this and I get embarassed for them. It doesn't accomplish a thing except to make everyone feel uncomfortable. I can promise you that Justice Scalia won't go back to Washington and retract his dissent over this.

If Justice Scalia's opinion had been in the majority in the Texas case I might think a little differently about this but it wasn't. Sodomy between consenting adults is okay in Texas now. What was there to win?

#Comment Re: made: 2005-04-15 04:02:39.144192+00 by: Pete

You're missing the point, Larry. Scalia's supporting the proposition that "sodomy" is a matter for public attention and governance, so he damn well better be prepared for the same scrutiny he's volunteering the rest of us for.

#Comment Re: made: 2005-04-15 05:07:56.426744+00 by: Jerry Kindall

Larry's not missing the point, he's making the point. The point is that, if your goal is to oppose Scalia, ambushing him with embarrassing questions that make people feel sympathy for him is counterproductive.

#Comment Re: made: 2005-04-15 05:30:58.679176+00 by: Pete


Go easy on me, been tired.

#Comment Re: made: 2005-04-15 05:45:11.552731+00 by: Dan Lyke

I had a similar discussion on a mailing list recently, and the conclusion I came to is that somebody has to sit at the lunch counter and somebody has to sit at the front of the bus and somebody has to ask Scalia the embarassing questions. A hundred years of appeasement and polite behavior in the South following the Civil War brought only more lynchings. It was only when the social mores were actively challenged that change occurred.

And, yes, everyone in that room who was embarassed by the question had to sit there and hear the question. Good. They are complicit in the crimes, and unless someone is willing to shock them out of their misdeeds they're not going to change.

Yes, some of those people will feel more sympathy for Scalia. But if, in that group, one person says "hey, wait a minute", one person says "someone else out there is voicing what I'd feared to bring up", then it doesn't matter. There were still cross burnings and hooded marches during my time in Chattanooga, too, and I expect that in another thirty years many of the folks who sat quietly and listened to Scalia will be similarly set in their ways. The only thing to do with those people is wait for them to die off, and to make it plain that some won't stand for the sorts of attitudes and behaviors that Scalia has exhibited, in a truly polite and cultured society.

#Comment Re: made: 2005-04-15 06:55:34.529504+00 by: crasch

Hahahaha! That's great.

Hear, hear, Dan. Ridicule is a powerful force for good. Bigotry persists in part because too many people are too timid to give bigots the big horse laugh they deserve.

#Comment Re: made: 2005-04-15 08:59:25.800721+00 by: Jerry Kindall

This wanker Berndt is no Rosa Parks -- he's a smartass college student who thought he'd draw some attention to himself by being rude to a Supreme Court Justice. His classmates will be slapping him on the back for a week or two. A shame he blew his fifteen minutes on this, though.

Those who wanted the government out of people's sex lives basically won the argument (and much more) with the Court's decision in Lawrence v. Texas. Scalia's dissent admits as much: "This effectively decrees the end of all morals legislation." But the sore winners are not content to have won; they want it to be unanimous. They want Scalia to actually agree with them, or failing that, they want him to shut up or step down. Fortunately, since justices are appointed for life, they're reduced to heckling and waving signs, which I am pretty sure he can take.

I still can't get over the fact that you suggested, in all apparent seriousness, that Maureen Scalia should abandon her wedding vows ("for better or for worse" was probably in there somewhere, which should cover this situation) because her husband dissented on basically philosophical grounds in a particular court case that, I remind you once again, your side won. (Which is generally the same side I'm on, as a matter of fact.)

American attitudes toward homosexuality are changing about as fast as they can. As you say, people have to die off. What we're seeing now (e.g. the marriage amendments) is backlash from people who feel like they've already been pushed too hard. Pushing them even harder won't get you anywhere. There what is right, and there is what is possible. Politics is, after all, "the art of the possible." You don't get to change things by pissing people off.

No one has ever been "shocked out" of their attitudes by stunts like the one Berndt pulled. No one. You simply can't create major social change without majority support, and you don't get the majority to support you by acting like a punk toward those they respect.

I agree with the student who wanted to hear more about Scalia's philosophy and less about the hot- button issues. I don't buy "originalism" 100%, but I think it's a defensible philosophy for a Supreme Court Justice to have, and I think it's generally useful to have it represented on the Court.

#Comment Re: made: 2005-04-15 12:21:06.76606+00 by: Dan Lyke

Except that Lawrence v. Texas[Wiki] wasn't the end of it. We've got Williams v. Pryor[Wiki], Ohio v. Jenkins[Wiki], and plenty of other less obvious cases. Lawrence v. Texas[Wiki] was a beachhead that's being only barely defended, not the war.

As for marriage, does Linda Lay have any obligation to remain with Ken Lay? By not immediately distancing herself from his actions when they became public, and by continuing to stand by him in their partnership, does she share some of the blame? How is that different for Mrs. Scalia when he says things like:

The Constitution just sets minimums. Most of the rights that you enjoy go way beyond what the Constitution requires.


They [the state of Texas] may have conceded it [that married couples can't be regulated in their private sexual decisions], but I haven't.

? Hell, even Barbara Bush has taken a stand against some of George H.'s wackiness.

And, although I find much of it aesthetically appalling (which, I think, is part of the point), I think we can safely look at three and a half decades of punk (since Dave Marsh first applied it as a name to a musical movement) to see that quite a bit of cultural change has come from punk.

Or maybe we interpret that differently. Cause and effect are often tough to suss out. But sometimes re-defining the edges helps the center move.

#Comment Re: made: 2005-04-15 13:53:31.393095+00 by: ebradway

The question of Judge Scalia was completely fair. This would be akin to someone asking him if he smokes marijuana after he makes a statement saying it should be banned. And as far as tasteless and disgusting, there are PLENTY of tasteless and disgusting things that get brought up before the Supreme Court. In fact, the most tasteless and most disgusting things are exactly what the Supreme Court is all about. Cases get brought to the Supreme Court because judges at all levels below have been too "grossed out" by the expression of Constitutional Freedoms to accept that the expression is legal. The Supreme Court has to evaluate the naughtiest bits and say "yes, that's a protected form of expression."

And yes, there are those of us who will keep pushing the edge, regardless of the screams of pain from those too "genteel" to accept reality.

Speaking of Barbara Bush, has anyone noticed the trend towards stronger First Ladies beginning with Nancy Reagan, following through Barbara Bush and culminating in Hillary Clinton? Unfortunately, the current Bushette bucks that trend. The input of a strong First Lady has been one of the best avenues for Feminism (and no, Condaleeza Rice is not a feminist, but Barbara Bush was, go figure...).

#Comment Re: made: 2005-04-15 18:42:58.529868+00 by: John Anderson

Wonkette has an open letter from the student who asked the question.

#Comment Re: made: 2005-04-17 13:52:50.135271+00 by: Dan Lyke

Thanks, John, that's a must read.

#Comment Re: made: 2005-04-17 19:31:07.898682+00 by: Larry Burton

Yeah, it's an interesting read but no matter how much the guy rationalizes his actions he's still a jerk and I'm still more sympathetic toward Scalia because of his actions even though I'm not much of a fan of Scalia.

#Comment Re: made: 2005-04-17 20:34:00.18005+00 by: Dan Lyke

So, Larry, for my benefit let's break this down into two components, a question of politeness, and a question of tactics. Again, for my benefit, let's drop the question of politeness and address the question of tactics: What is it about Scalia asking this question of the student (as one of a large class of people) that you don't see as rude, which is there when the question is reversed?

How can we better express that?

#Comment Re: made: 2005-04-17 23:02:53.926625+00 by: Larry Burton

It's because he didn't single any one person out in any of the statements he made with an intent to embarass that one individual.

Dan, you have equated Berndt's embarassing of Scalia with blacks sitting at the whites only lunch counters back during the days of the civil rights movement. The shock that changed things wasn't a black person sitting at the lunch counter it was the sight of seeing blacks pummeled over and over again and then coming right back for more. People started becoming sickened by the sight of it all and started seeing the humanity in the blacks that were being attacked. Public sentiment started turning against those that kept beatin back the blacks and society changed.

Berndt's actions equate more to the actions of the rednecks than those of the civil rights demonstrators. Yeah, shock was involved in obtaining civil rights for blacks but it wasn't the type of shock that Berndt went for that did it.

#Comment Re: made: 2005-04-18 03:33:59.479301+00 by: topspin

I'll weigh in about this from a different angle.

Larry's correct that Justice Scalia is NOT going to magically see things differently because some kid asked him about the "oral arguments" his wife might receive or deliver.

The question is: Why is nobody asking Justice O'Conner or Breyer or Thomas such a question?

The answer is: Respect.

When the time comes for GWBush to nominate someone to the Supreme Court, the public should be mindful that a Justice should be someone who, even in their conservatism or liberalism, can form opinions which can be respected and defended.

That Scalia, a Supreme Court Justice, is open to such an "ambush" question reflects not upon the kid, but upon the opinions and appointment of Antonin Scalia to the Supreme Court.

The Supreme Court and the people of the United States deserve better than Antonin Scalia. Let's take THAT lesson from this.