April 18, 2005

I'm Sure You've Heard By Now

by PG

... about the NYU 2L whom reportedly asked Justice Scalia whether he sodomizes his wife." So ran the text of an e-mail, with an explanatory link, that I got from a Georgetown Law friend Thursday night. At that time I hadn't heard, actually, but I certainly have in the last several days, and at this point commentary seems extremely belated. The practical usefulness of Eric Berndt's action was addressed by his schoolmate Law Lush:

My opinion on the stunt: lame. I know many people who will defend it and that's understandable. I personally didn't think it was warranted here. Whose mind are you going to change? Scalia's? He already thinks law schools are full of elitist know-nothing liberals frothing at the mouth to sign onto the "homosexual agenda." The people in the room? 99.9% of them already agree with you.

A couple of misconceptions have appeared in people's posts and comments. The first, that Scalia himself necessarily supported the sodomy prohibition because he believed it to be constitutionally permissible, is one most law students understand to be incorrect. Scalia voted to rule Texas's flag-desecration prohibition to be unconstitutional, while wishing the flag-burners could be punished; this is a man who can distinguish between his personal preferences and what he thinks the Constitution says.

Second, Scalia's First Amendment also is broad enough to cover the impropriety of federal marshals' mistreatment of journalists covering Scalia himself, so don't blame that incident on the justice.

Still, there may be a point to the question: if Scalia was sodomizing his wife (or she him) before the Lawrence v. Texas decision declared sodomy bans to be unconstitutional, then he must feel that it's permissible to break the law. The Scalias live in McLean, VA. And if he thinks Virginia’s statute prohibiting both same-sex and opposite-sex sodomy is OK to break, why does he think that? does he think that there is something the state shouldn't be regulating, even though the Constitutional text doesn't forbid them from doing so?

The offending students's letter to his classmates has an interesting argument, and I agree with the point that people who believe others' sexual lives should be subject to the police power have little room to be upset when their own sex lives are put into public discussion.

Will Baude's claim that the rules of etiquette ought to be more stringent than the government's power over its citizens strikes me as a slightly odd one for a libertarian. Will could argue that we have a general etiquette rule against asking people about their income, while the government routinely does so for tax purposes. The distinction I see is that the government doesn't publish the tax information of private citizens, while it does put its accusations of sodomy into the public record. Some information ought not be communal property, and generally that's the kind of information we consider rude to inquire about. Obviously people may volunteer it; if Monica Lewinsky hadn't, and Linda Tripp hadn't passed it on, there would have been no Clinton impeachment. But even then Republicans kept saying that it wasn't about the sex, it was about the lies, because they understood that most voters found the inquiry idiotic.

I've never heard someone scream "Bad manners!" for forcing sex offenders to disclose their status, and even before Megan's law, we were not troubled by job applications that asked whether someone had been a pedophile, rapist or exhibitionist. In contrast, I think many of us would be annoyed if an employer had inquired about our consensual sexual practices pre-Lawrence. But why should we be, when we were commiting a crime under the laws of some states? People's actions can be more reflective of their intuitions than of their legal reasoning. Scalia probably wouldn't have, say, broken Prohibition laws if he'd been a sitting Justice at the time, or violate various other restrictions on personal liberty.

None of this is to say that moral intuition should govern law, because obviously people's moral intuitions can vary widely and have discriminatory effects, and we got these prohibitions in the first place because of people's putting their sense of morality into legislation. (A law genuinely intended to address public health rather than morality would not have been written as the sodomy prohibition was, and the lack of discussion of public health in Texas's brief would have killed that rationale at the rational basis standard used by most states, though not at the hyper-deferential* one used by federal courts.)

There's no substance to a debate that pits my moral intuition, that intruding into someone's privacy is wrong absent a legitimate state interest, and another person's intuition, that it's permissible as long as there's any rational basis for it. The result is that Scalia mocks Kennedy for finding a right to privacy in the Constitution, and Eric Berndt mocks -- for that is the effect of his question, if not the intent, and perhaps the worst consequence of his action is that now we are contemplating a justice's sex life -- Scalia for failing to find such a right.

* I haven't started studying for my constitutional law final yet, but there may be a different "rational basis" for economic regulation than for other types of state regulation. See the Breyer comment linked. Also "The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Williamson v. Lee Optical of Oklahoma. Black's law dictionary defines state police power as "The power of a state to enforce laws for the health, welfare, morals, and safety of its citizens, if enacted so that the means are reasonably calculated to protect those legitimate state interests" (emphases added).

April 18, 2005 10:41 AM | TrackBack

But why should we be, when we were commiting a crime under the laws of some states?

You, like many, have made the mistake of conflating the results of a prosecutorial process--with a full bevy of ethical restrictions on prosecutors, an impartial arbiter, and penalties for unethical prosecution--with what's appropriate at a speech.

Mr. Berndt wasn't making an accusation to Scalia. Unless he's got evidence that the Justice has indeed committed sodomy, he's merely making rhetorical points. If he were a prosecutor, even now one might be considering a suit for unethical conduct.

But the key point is, private individuals are not allowed to do what prosecutors do. Similarly, our guidelines for etiquette are not derived from what is acceptable behavior for bringing criminal charges, if for no other reason than the fact that dinner tables and public spaces operate without the formal restrictions that courts do.

This is why we can consider Mr. Berndt an ass, but not charge him with either unauthorized practice of "rhetoric" (to give him far too much credit) or get him formally disallowed from attending debates. One has to wonder that so many of his defenders--so many of them lawyers or law students--fail to make the distinction between the legal and the lay realms.

Posted by: A. Rickey at April 18, 2005 08:53 PM

The main problem with Berndt's comment is that it completely strips his platform of credibility. Though I agree, legally, with Scalia, I think I agree socially with Berndt. Unfortunately, his ignorant delivery took the focus away from his argument and, instead, put the focus on his words. He could have been saying "Justice Scalia, do you sodomize your wife? Because yellow and blue make green" and people would have disagreed with him based purely on the polarizing effect of his words. No (reasonable) one is calling into question Berndt's right or ability to say whatever he wants - it is just disappointing that the public debate, which Justice Scalia vehemently advocates, instantly devolves into such sophomoric rhetoric.

Posted by: EE at April 18, 2005 10:17 PM

The claim isn't that etiquette is necessarily more stringent than the 14th Amendment, just that there's no reason to expect the two standards to be the same. Your example about the income tax is a good one (and accusations of tax *fraud* are often made public). But it can go the other way too. It might be that we now regard it as perfectly polite for a heckler or rabble-rouser to be run off the premises, but that still wouldn't determine whether it was constitutionally permissible. They're just different, and for all of the obvious reasons.

Posted by: Will Baude at April 18, 2005 11:51 PM

The flag-burning example doesn't work. Scalia says, "I don't like scruffy people who burn the flag." He doesn't say, "As a legislator, I would have voted in favor of a ban on flag-burning." As a skilled rhetorician, he knows that the latter would make his argument a lot better. But he doesn't say it, probably because it's not true.

In any case, Supreme Court justices and legislators both make political decisions, but they have different sets of incentives. Legislators have to please constituents and their parties; Supreme Court justices have to speak in categorical imperatives, muster constitutional arguments, and generally be "law-like." Sometimes, both vote for things they personally disagree with. That doesn't mean they're not doing politics.

Posted by: Eric Prindle at April 19, 2005 10:23 AM

I agree with the point that people who believe others' sexual lives should be subject to the police power have little room to be upset when their own sex lives are put into public discussion.

So it would have been acceptable for a student to ask Scalia -- out of the blue -- whether or not he's a pedophile? Simply because a person believes that something involving sex can constitutionally be made illegal doesn't justify blindly asking about it -- you need some kind of reasonable suspicion.

And as Baude points out, social decorum doesn't have to parallel the law. It isn't a private matter whether or not a person is a pedophile, but it's still rude to confront people on the street and ask them if they have sex with children.

Posted by: Owen Courreges at April 19, 2005 10:01 PM

I agree with a lot of the comments on here which are critical of the question asked to Scalia.

I would like to add that nobody has taken Scalia's Catholicism into consideration. The end of sodomy is not procreative, and therefore is morally wrong. I somehow doubt that the questioner consider that.

Secondly, Scalia probably believes what the author of this post wonders "then he must feel that it's permissible to break the law." An unjust law is no law said Augustine and Aquinas (lex injusta non lex est), Doctors of the Church. I suppose it would depend on Scalia's view whether this law was unjust or not.

But I think people confuse two this issue. Just because a judge may think it is okay to break a law does not mean that it is necessarily constitutionally legitimate to do so. As far as Scalia is concerned, the State has the right to regulate the private. Judicial review is essentially weighing the constitution against the law. Just because a judge or person thinks it is okay to disobey a law does not mean that it is illegitimate to legislate that law. They are completely two different things in a democracy like the US.

Thus, even if Scalia admitted that he broke the sodomy law, it still would not affect his jurisprudence on the issue. The private can still be - and is in many areas - a legislative concern.

If the big fuss is over privacy of personal contract, I wonder why aren't law students screaming for the abolition of tax in the buying and selling of goods. What right does the government have to interfere with a private one to one sale such as that?

In my opinion, it is a slippory slope that cannot be maintained.

Posted by: Jonathan M at April 20, 2005 03:58 AM
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