Debriefing Scalia

[swag]

http://www.thenation.com/article/debriefing-scalia?page=full

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.

Eric Berndt:

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.

. . . more

[socialindependocrat]

1. SCOTUS screening necessary

Why don't they give SCOTUS nominee a lie detector test and ask questions relating to all the things that gives rise to prejudice and see if the person responds.

If they do, you'll know they have a prejudice and should not be considered for the position.

every time these justices show hightened emotion it says that they have an ax to grind or a fear of the subject and that they will potentially make an emotional judgement regarding the subject.

This may be hard but if these people are going to serve for ever and ever then, I say, they need to be really special people.

Good post! The guy is pretty sharp!