How Does Justice Scalia Mount His Spouse?

A law student named Eric Berndt has been catching a lot of flak for asking Justice Antonin Scalia during a public forum at NYU a few days ago, "Do you sodomize your wife?" According to NYUnews,

Scalia refused to answer the question while the crowd gasped and the administrators promptly turned off Berndt's microphone.

Granted, it's not a very polite thing to ask. But context is everything. Scalia, unbelievably, makes it his business to pass judgment on what consenting adults do in the privacy of their bedroom. Berndt's question was prompted by Scalia's dissent in Lawrence v. Texas, two years ago. Slate's Dahlia Lithwick provided an excellent summary at the time:

The facts of Lawrence are straightforward and mostly undisputed: Texas police entered the apartment of Houston resident John Lawrence in response to a neighbor's fabricated claim that a man in there with a gun was "going crazy." What the cops actually found was Lawrence and Tyron Garner having anal sex, for which they were promptly arrested under a Texas law prohibiting "deviate sexual behavior" (i.e., oral or anal sex) between persons of the same gender. ... Lawrence and Garner were jailed, prosecuted, and fined over $200 each. They challenged the law, arguing that it violated the 14th Amendment's promise of privacy in intimate sexual matters and its guarantee of equal protection under the law.

Ultimately, the Supreme Court confirmed, in a 6-3 decision, that the arrests were wrong and that people have a right to privacy. Scalia was one of the dissenters. Given a stunning exchange like this, during oral arguments, that came as no surprise.

"It's conceded by the state of Texas that married couples can't be regulated in their private sexual decisions," says [the plaintiffs' attorney Paul] Smith. To which Scalia rejoins, "They may have conceded it, but I haven't."

And there we have it: a Supreme Court judge who seeks to reduce the legal interests of the United States to those of some vile gossip rag, in effect arguing that it is the government's business to know who fucks who, and how. Men, women, gay, straight, married, single, it doesn't matter — if Scalia had had his way, no one's bodily orifices would be beyond the Court's scrutiny and control.

That makes Eric Berndt's question — whether Mr. Scalia sometimes engages in a little assplay with the missus  — A-OK in my book. It's a logical, legitimate, even inevitable outcome of the Justice's own views. My only regret is that Berndt didn't phrase the question just a bit differently. "Justice Scalia, when did you stop sodomizing your wife?" would have been perfect.

Comments

[Lauren]

Genius! I loved this article, esp. being from Texas where voting for a fiscal conservative often means voting for someone who wants to take away your personal freedom.

[Nick]

I'm not sure this follows. Is it possible Scalia is just positing that the question of whether or not the state can have an interest in these matters is, as the laws are written, an open one? I think you might be conflating moral claims with legal claims.

[John Thacker]

Actually, Scalia was arguing that the Court can't rule on the question, or rather that the Court can't rule that the Legislature can't rule on the question. It was his opinion that the Court could not rule on the question at all.

It leads, certainly, to allowing the Legislature to take an interest in the question. But certainly the Constitution is silent itself on whether such laws are allowed. Merely because it is bad policy (or should be a right) does not mean that it's actually in the Constitution.

[John Thacker]

I may similarly think that the union shop or minimum wage laws violate one's right to free contract for one's labor. But that doesn't mean that Lochner v. New York (1905), which struck down minimum wage laws on that ground, is justified.

[Editor - 201k]

The Constitution is NOT silent on laws invading privacy: the right to privacy was established by Griswold v. Connecticut in 1965.

Scalia doesn't agree with that one either, presumably. Maybe, after he and his friends overthrow the government, he'll make a chart of acceptable sexual practices so we can all stay within the law.

[Jason LaFond]

This right that Scalia balks at is clearly in the Constitution in two places: The Ninth Amendment and the Privileges and Immunities clause of the Fourteenth (I believe) Amendment.

The Ninth states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

These Natural Rights protected by the Ninth include the right to do with one's body as one please so long as it does not violate the rights of another. Not any rights claim is justified under the Ninth Amendment, but only the liberty to act free from unjustified interference.

The function of the Privileges and Immunities Clause is to protect the citizenry as a whole against unnecessary or improper legislation that infringes upon the exercise of their civil rights or liberty.

We either accept the presumption that in pursuing happiness persons may do whatever is not justly prohibited or we are left with a presumption that the government may do whatever is not expressly prohibited. The presence of the Ninth Amendment and the Privileges and Immunities Clause in the Constitution strongly supports the first of these two presumptions.

[Daniel]

I think the point in the dissent, if you read it, was clear. It is not up to the Supreme Court, nor any court to decide the morality of the people. The states have elections, to elect a legislature, to make laws based on what society deems moral, and based on the reasoning in his dissent, he makes a valid argument. If it's not alright to make immoral behaivor illegal because of and based on societies values, then it cannot be argued the incest, beastiality, or child pornography as long as it is in the privacy of one's bedroom should be illegal any longer. They are all a small minority of the population as well, what's the difference. Its all moral law. Where will it stop? How do you justify any law at all, and what's the point of electing people to create laws if no one wants them enforced?