Friday, April 15, 2005

Clarifications

Some of the comments on the last post have misunderstood my point. I take the blame for that and would like to clarify my position.

First, Scalia deserved to be asked about sodomy not because of his holding in Lawrence but rather the way that he has repeatedly equates homosexuality with incest, polygamy, and bestiality. These words more idiotic and immature as Eric's. Why? Because Scalia's words have national implications even if they were not part of the majority opinion.

I don't want to be gay bashed anymore. When people equate homosexuality with other moral evils they feed the fire of violent homophobic actions. Scalia feeds these attitudes despite (probably) engaging in sodomy himself. Eric made a good point.

Second, we here endorse Eric's right to ask a probing question in a forum at NYU. I doubt there would be any other forum in which he could ask such a question. We do not, however, know of nor do we endorse all of his actions.

As a public official Scalia is used to such comments and it is a small price to pay to be part of the most powerful court in our nation. I respect Scalia and think his decisions are quite logical (even if they often rest on faulty assumptions). I also respect the ability of an ordinary law student to question Scalia's words in Lawrence.

10 Comments:

Anonymous Anonymous said...

"Scalia deserved to be asked about sodomy not because of his holding in Lawrence but rather the way that he has repeatedly equates homosexuality with incest, bigamy, and bestiality."

You do understand why he makes those comparisons, don't you? He's not making a moral argument, but a legal one: how does the Court plan to distinguish homosexual sodomy from bigamy, polygamy, consensual adult incest, etc.? These prohibitions primarily exist because society has determined these relationships immoral or anti-social. If after 210 year of constitutional jurisprudence, societies suddenly cannot enforce their norms in this case, then why should they be able to enforce their norms elsewhere?

The legal argument is excellent and necessary. Justices simply must consider the unintended consequences of their decisions and voice them, and it's not fair for the homosexual community to get upset because this responsible jurisprudence juxtaposes homosexual sodomy and polygamy in this particular case.

3:51 PM  
Anonymous Anonymous said...

there are so many things wrong with this post that i will simply address one small piece:
"how does the Court plan to distinguish homosexual sodomy from bigamy, polygamy, consensual adult incest, etc.?"
In Lawrence, Scalia actually listed "bigamy, same-sex marriage, adult incest, prostitution, maturbation, adultery, fornication, bestiality, and obscenity" as things allowably banned by moral choices of the legislature. Sure Scalia is making a legal argument, but it's an argument that also contains a moral component. A value judgment is inherent. More to the point - it's a crappy legal argument. The Supreme Court has said we can view obscenity in private, have access to birth control even if we are not married (which clearly leads to fornication), and while I can't think of a case - I simply cannot imagine that the Supreme Court would have the balls to say that laws banning masturbation are constitutional.

4:15 PM  
Anonymous Anonymous said...

"despite (probably) engaging in sodomy himself."

Talk about "faulty assumptions"

5:12 PM  
Anonymous Tessa said...

Re: "If after 210 years of constitutional jurisprudence, societies suddenly cannot enforce their norms in this case, then why should they be able to enforce their norms elsewhere?"
--Anon. @ 3:51

--Well I think that is precisely the point. Who's norms is he trying to enforce? There is a kulturekampf in America right now, and it's absolutely waged in the Supreme Court, as well as the normatively political arenas. This is not new. Most of America's culture clashes, where progress and civil rights inevitably triumph, are litigated before legislated. And the courts are political. You know the cases, Im sure.
So when the NYU student asked his question, he was recognizing this. A Justice cannot hide a culture-war moral attack on the gay agenda that he personally hates behind 'traditional jurisprudence'. (lets see, um Plessy anyone?) And this NYU student illustrated the clear hypocracy of giving something a malediction while confidently engaging in it at the same time, or at least turning a blind eye to the same 'sin' committed under more acceptable attendant circumstances... and this points to who is giving the standard for what is acceptable...who's Norms? Because Norms are not determinative, conclusive or universal when 1) there is disagreement and 2) the holders of these norms violate the norm themselves.

And if you are enraged at the fact that the student asked such a highly personal question to someone he did not know, let me remind you this again is also the point. Privacy. As a social "norm": Are we going to respect and value it or not? Because if we are, the courts should not ask what two consenting adults do in the privacy of their bedrooms. And if Scalia didn't insist that this privacy be ignored and devalued, surely he would not have been subjected to the very same indignaty at the NYU Q & A.

And if its that you are enraged that a student asked a private question of one of the Supremes, please remember that we lose our reasonable expectation of privacy when we come into the public eye. Why? Accountability for the policies that they implement and encourage. Thus he should expect the questions, and we are entitled to ask them.

That NYU student should get a hero of the week award. He is sooo poof. :)

5:39 PM  
Blogger Gretchen Weiner said...

Stop trying to make poof happen! It's not going to happen.

7:36 PM  
Blogger David Ehrenstein said...

Latest FaBlog: "Offensive, Obnoxious and Inflamatory."

9:16 PM  
Anonymous Anonymous said...

"Well I think that is precisely the point. Who's norms is he trying to enforce?"

We live in a popular sovereignty regime. The interest group that can garner the most votes wins.

"There is a kulturekampf in America right now, and it's absolutely waged in the Supreme Court, as well as the normatively political arenas."

So why do we have two institutions? The answer, if you read the Constitution and Federalist Papers, is exactly my point--the judiciary should not be making political decisions.

"And the courts are political. You know the cases, Im sure."

Of course. You are arguing descriptive, and I am arguing normative (or constitutional-descriptive, if you prefer).

"A Justice cannot hide a culture-war moral attack on the gay agenda that he personally hates behind 'traditional jurisprudence'."

This is nonsense. Justices should enforce the law as it is written and understood by the people who create it. Scalia does just that. In reality, a Justice cannot hide a culture-war political agenda behind the jurisprudence of an "evolving Constitution." Where does it evolve? Who decides? If the Right gets five ultra-conservative Justices on the Court, will the left still support the notion of an evolving Constitution under which the Supreme Court can make policy decisions that the people have never ratified, and that apparently conflict with the will of the people who ratified the Amendment in question (re: sodomy laws in 1868)?

So here are a few of questions:

(1) Should Justices do their best to apply laws and amendments as they were originally understood, when such an understanding can be determined?

(2) If not, would you support an evolving constitution if it evolved in a direction with which you disagree?

(3) Is Scalia's jurisprudence consistent with the substantive goals of the authors and ratifiers of our amended Constitution?

"And this NYU student illustrated the clear hypocracy of giving something a malediction while confidently engaging in it at the same time"

Maybe he pointed out hypocracy and maybe he didn't; the statement begs the question of whether hypocracy exists. In any case, why can our Constitution not contain hypocracies?

"Who's Norms?"

The norms of whichever interest group can garner sufficient political support.

"And if you are enraged at the fact that the student asked such a highly personal question to someone he did not know"

I'm not enraged about anything. It was a stupid and inappropriate move. He's responsible, though, and he can make his own mistakes.

"let me remind you this again is also the point. Privacy."

Privacy is such a loosy goosy word. Our Constitution doesn't guarantee the privacy to take illicit drugs, commit suicide, engage in prostitution, commit incest with another consenting adult of the same sex, maintain a bigamous or polygamous relationship, etc. And, prior to 2003, it didn't guarantee a right to sodomy, and that lack-of-right applied to everyone. Sure, that is formal rather than substantive equality, but every prohibition or right has a greater effect on the people with a vested interest in it.

5:25 AM  
Blogger The Good Reverend said...

I'm pretty sure a clear line can be drawn to "distinguish [laws banning] homosexual sodomy from bigamy, polygamy, consensual adult incest, etc.": only one of this set of laws classifies on the basis of the gender of the sexual partner. I don't think we'd allow a law to classify on the basis of the race of the sexual partner. There's not much difference between "homosexual" and "interracial," at least when compared to those other types of relationships.

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1:16 PM  

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