Friday, April 15, 2005

WHY THE NYU DEAN IS WRONG

The Dean at NYU Law School wrote a letter in response to the recent Scalia incident. I respond to the part of his letter dealing directly with Eric:

“First, during the student question-and-answer session, one student posed an extraordinarily rude, immature, and inappropriate question.”

I'm sorry, Mr. Dean, you are wrong. Immature? He asked Scalia a question about sodomy. This question would not have been asked if Scalia had not already opened the door on the issue in Lawrence v. Texas. Is Eric's question any worse than Scalia’s own words on the issue:


“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation.”

Is sodomy akin to bigamy, adultry, incest, and bestiality? If so, should the state demand that heterosexuals to refrain from oral sex? I firmly believe that Eric was not any more immature than Scalia and his question was both appropriate and an important one. Scalia is probably calling the kettle black.


The letter from the Dean continues:

“Such a show of incivility to any individual invited to be a guest of the Law School, let alone to a Supreme Court Justice, has no place in our intellectual community. It is insulting not only to our guest but also to the law school community as a whole, and impedes the robust debate that events such as these are designed to promote.”

Obviously this is not true. Eric’s question has prompted debate over the question of state sanctions against sodomy, the role of the courts, and Scalia’s own troubling opinions. The Dean wants Eric to be silent. If a racist politician visited campus would he demand that they not ask probing questions about race relations, even personal ones? When Phyllis Shafely visited my undergraduate college and discussed the evil of homosexuality we asked her about her gay son. Her response, “He’s one out of seven. My batting average isn’t too bad.” Now that IS troubling. These questions are important for they make the evils of bigotry personal. Part of the reason we come out of the closet is to show people that lesbians and gays are not evil demons. It is a problem when someone who is gay or who is closely related to someone who is gay cannot see that. Similarly Eric wanted Scalia to question how he may be implicated by his own words.

“Questions can be asked--and should be asked--that are challenging, critical, and demanding. But part of becoming a professional and an adult is learning to ask these questions, even of those we disagree with strongly on certain issues, in a serious and mature way that does not involve offensive and insulting language.”


How was this not serious? This challenging question could not have been asked in any other way.

The Dean needs to answer questions of his own about why he aims to shield a homophobic leader from lively debate. How would he have framed the question? Is there a way to make the political personal without being insulting? How can we get leaders like Scalia to realize that “sodomites” are not the only ones that are hurt by homophobia?

17 Comments:

Anonymous Anonymous said...

"How can we get leaders like Scalia to realize that “sodomites” are not the only ones that are hurt by homophobia?"

Scalia is not a "leader," he's a goddamn Sup. Ct. justice. Do you mean leaders as in senators or members of congress that enact homophobic statutes like DOMA? If so, then you should be attacking politicians, not accomplished lawyers that don't vote.

2:40 PM  
Blogger krayon said...

If we could only question elected officials then we should never question the decisions of any cabinet member or other appointed offical. Scalia writes legal opinions that have policy implications. We can and should question both elected and non-elected leaders.

2:49 PM  
Anonymous Anonymous said...

scalia's job isn't to be nice to people or promote an evolving political agenda. in lawrence, his job was to interpret text, understanding, and intent set forth in 1868.

anyone who claims that the framers and ratifiers of the 14th amendment intended to legalize homosexual sodomy need a history lesson. anyone who thinks that judges have the right to add meaning to the constitution absent an original understanding needs a lesson in democracy and popular sovereignty.

i strongly doubt the queer or atheist communities would be pleased if bush filled the court with conservatives who "interpreted" the "evolving first amendment" to allow the president to create a "secretary of church" cabinet position. no, they support the jurisprudence not because it makes for good government in general, but only because it supports their current political agenda. those battles should be fought in legislatures, not in courts.

3:08 PM  
Anonymous Anonymous said...

i agree with the 3:08pm post. attacks like these should not be tolerated. how would you feel if someone said a comment that would offend you in front of your wife and children someday? karma is a bitch. you probabaly only question justices when they rule in line with your policy preferences. what law school do you go to anyway?

3:12 PM  
Blogger krayon said...

I get offensive comments every single time I hold a boy's hand. Those kinds of attacks are warranted when officials like Scalia make bigoted commentary in Supreme Court decisions.
There was a way to write his decision without such homophobic language. It is similar to saying that the states have the right to have race-based policies without equating a certain race with animals or heathens.

3:20 PM  
Blogger Gretchen Weiner said...

People say mean things all the time. Suck it up. If you're gonna dish it out, you gotta be able to take it.

Krayon and I are at Regent. ManCandee's a 1L at Ave Maria.

PS: My dad invented toaster strudels.

3:21 PM  
Anonymous Anonymous said...

"The Dean needs to answer questions of his own about why he aims to shield a homophobic leader from lively debate. How would he have framed the question? Is there a way to make the political personal without being insulting?"

I think the point is that, given the professional nature of the event and the status of the speaker, a reasonable person would think that Scalia had not consented to that type of "lively debate."

"How can we get leaders like Scalia to realize that 'sodomites' are not the only ones that are hurt by homophobia?"

Why do you care so much about what Scalia thinks or knows? Scalia's opinion about this political controversy is meaningless. If you really want Scalia to legitimately act on your agenda, pass an amendment. The obvious response is that a proposed amendment to legalize homosexual sodomy would lack the necessary support--to which I respond, "welcome to democracy." We all have our agendas. Work the population like the rest of us.

3:23 PM  
Blogger Gretchen Weiner said...

It's completely naive to say that Scalia's opinion, or any of the justices' opinions, are meaningless. Every decision that comes out of the court is a political decision, made by the justices that were appointed by political agents, because of their politics.

If the politics of the justices don't matter, then why not just take the top constitutional law scholar at Yale and give him or her the job

If the politics of justices didn't matter, then the republicans wouldn't have held up Clinton's nominees to the judiciary, and the democrats wouldn't be holding up Bush's appointments to the judiciary.

You can say that it isn't about politics, and that it is about constitutional interpretation. But Scalia can choose a reactionary interpretation, and other people choose a progressive interpretation. Any judge's decision on style of constitutional interpretation is based on their political beliefs.

3:31 PM  
Anonymous Anonymous said...

i just read some person's comments on the clinton stuff a few postings down. do you really have something against scalia AND clinton? that would be very troubling to a staunch democrat like myself. i'd support any of clinton's policies over any gay marriage stuff 24/7.

-from a non lawyer student.

3:32 PM  
Blogger krayon said...

The post on Clinton was from an article on Salon.com. I pasted it here because I thought it was interesting and that it may spark an good debate.

3:41 PM  
Blogger srcastic said...

"i agree with the 3:08pm post. attacks like these should not be tolerated. how would you feel if someone said a comment that would offend you in front of your wife and children someday"

So there is no free speech if it offends?

If I were Antonin Scalia, I would expect nothing less from attending a school whose efforts to protect LGBT people from discrimination I ridicule in Supreme Court decisions. See Romer v. Evans, 517 U.S. 620, 652-53 (1996).

It is important to note that Scalia was being "honored" by a journal and by the administration. Rightfully, many members of the school were offended, for there is a big difference between inviting someone to speak and inviting them to be honored for their jurisprudence.

While Eric's words may not have been offensive to some, they were aimed at bringing attention to the irony of Scalia's believing gays should have no right to privacy if the majority deems their conduct offensive while at the same time defending his right to privacy in his heterosexual relationship.

As an NYU law student, I admire Eric's courage, and was disappointed that groups at my school chose to honor Scalia. I'm not afraid to sign my posts to say it either.

10:47 PM  
Anonymous Anonymous said...

ummm clearly "SRCASTIC"'s profile is a bit biased on the issue.

He writes:
"I have a great boyfriend of 3+ years."

You are one of very few that support Eric B's outlandish conduct during the town hall discussion. Wouldn't be surprised to find NYU's lawyer + judge reputation score in U.S. News drop big time now, and we all have Mr. Eric B. to thank. It won't be long before Chicago, Penn, and Michigan are ranked above us. Dumbasses.

12:08 AM  
Anonymous Anonymous said...

"So there is no free speech if it offends?"

It's not about a constitutional right to free speech. It's about social adjustment. Of course he has a right to speak. He also has a responsibility to tailor his speech to the setting. If he does not, then the government won't imprison him for it, but I certainly hope educators and employers will permanently blacklist him as the kid who can't control himself. What if a client has a bigoted view (I have had a few of them)? Will this kid spout off in the middle of a meeting to defend his honor as a queer? If I were hiring, I wouldn't go near this firecracker with a 10-foot pole.

"It is important to note that Scalia was being "honored" by a journal and by the administration."

Even more evidence supporting my position that his statement was inappropriate in that setting.

"While Eric's words may not have been offensive to some, they were aimed at bringing attention to the irony of Scalia's believing gays should have no right to privacy if the majority deems their conduct offensive while at the same time defending his right to privacy in his heterosexual relationship."

Here is the crux of the matter. What Scalia "believes" gays "should" or shouldn't have is irrelevant. I'd be happy to let people engage in homosexual sodomy--or any other sex act among any number of consenting adults--without the government shutting down the operation. But to say that the *Constitution* guarantees that right begs a question under popular sovereignty: who ratified that right? Without ratification from the people, a "right" cannot be constitutional.

Scalia merely defends that core principle of democracy. If you don't like it, don't blame the messenger. Instead, start a revolution to do away with popular sovereignty and create a government that allows its leader (or five leaders, if you prefer) to make policy decisions that conflict with the will of the people. Better yet, move to any number of dictatorships that already operate this way.

Finally, how did Scalia "defend" his "right to privacy?" He refused to answer the question because it was inappropriate in that setting.

4:33 AM  
Blogger srcastic said...

I'm really not sure what the bias in my profile is about - I don't see how being in a relationship means I have a bias. Please sign your post if you are going to accuse me of ulterior motives.

I don't believe we should premise challenging injustice upon US News's rankings, and it is disheartening that people think that.

Finally, I'd like to note that we don't live in a democracy, but rather a republic. Reread Federalist #10 on the question of whether or not it is appropriate for the majority (or popular sovereignty) to dictate whether or not minorities retain rights inherent to liberty.

The Tenth Amendment is pretty clear that rights don't have to be enumerated in order to be retained by the people. It isn't a question of whether or not there is a right to sodomy, but rather it is appropriate for the government to go against the purpose of the Constitution in promising liberty for all.

7:33 PM  
Blogger srcastic said...

On another note, of the emails I've read and students I've talked to, it seems pretty divided about whether or not the question was out of line. In any event, I am not "one of very few"

7:38 PM  
Anonymous Anonymous said...

Reading about controversies like this makes me glad I'm Canadian. Not that we don't have problems with bigotry too, but we have a big advantage in having a Constitution whose Charter of Rights and Freedoms are less than a quarter-century old.

When the Charter was written in the early 80s, the framers knew it was too soon to explicitly include language about sexual orientation. But the language they did adopt ensured that when it came time for interpretation in the Supreme Court, there could only be one outcome. Thank god.

I fully support Eric's right to ask the question he asked in the venue he chose to ask it. Even those who defend Scalia by reminding us that his job wasn't to rule on the desirability of state sodomy laws, rather whether states had the Constitutional right to adopt them, ignore the gratuitous personal comments injected by Scalia in his dissent. He could have said simply that he supported the right of states to address matters not included in the Constitution and referenced precedents, without theorizing on why they might want to do so (and in the process making it sound like he agreed with them).

10:17 PM  
Blogger The Good Reverend said...

Maybe the question would have been more appropriate if it included people other than Scalia's wife:
I even take the position that sexual orgies eliminate social tensions and ought to be encouraged,” Scalia said.

6:20 AM  

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