More on Scalia at NYU

I've had an interesting back and forth today in the comments of a post on Law Dork I figured would be interesting to "reprint."

First, a comment which I thought was by our very own PG, but it turns out was by someone else:

Scalia has been quite clear and outspoken in his disgust at sodomy and his belief that states should be able to criminalize it. I don't see any problem in asking him if he has engaged in the practice. If he has not and really thinks the state should interfere in our private lives to that extent, he should feel no shame in saying that he does not engage in sodomy. The same is true of people who take strong public stands against use of narcotics. Those who take those stands should be prepared to admit whether they use drugs or not and pay a price if they do. If Scalia lives his life consistent with his view of the law, then he certainly has not committed sodomy and should deny having committed sodomy in the same way that he would deny having committed beastiality or murder: straightforward and shamelessly.

And another comment:

To all of you how think Berndt was inappropriate:

When did etiquette become more important than equality?

My response:

Marc, no one is saying that etiquette is more important than equality. But the equality debate should be conducted with etiquette, with mutual respect, and with real arguments--not name calling and shock value. Screaming and disruption does not convince anyone of anything, does not help those who are working through the issue.

PG (should be Joseph), as you have noted elsewhere, saying that this outburst was appropriate because condemners of Sodomy should be asked whether they engage in it has nothing to do with substantive due process. It's Scalia's jurisprudence, not his political views, that brought this result. So whereas such a question to a legislator or prosecutor may be better placed, there is no reason to ask the Justice.

Even placed to a legislator or prosecutor, however, I fail to see the relevance. Another example: A legislator might think that it's a good idea for no one to drive SUV's, that the aggregate use is bad for the environment, but her own use of the vehicle doesn't do enough damage for it to be of harm. I think that drugs have a bad aggregate effect on society, but that my smoking pot in my bedroom doesn't. (I actually don't, but you get the point)

To be sure, these are not moral reasons for criminalizing the conduct. But there is no reason that I see that the decisions of hypocritical legislators are necessarily bad. Everyone is, to some extent, a hypocrite, and I don't see a reason why I should not enact a law I believe is moral and good just because I struggle with it.

This all has nothing to do with Scalia sodomozing his wife, but just to further point out the ad hominem and logically fallacious nature of the outburst.

Response from Chris Geidner:

Correct me if I'm wrong, Publius, but this -- "I don't see a reason why I should not enact a law I believe is moral and good just because I struggle with it." -- sounds like a "we're all sinners" argument. Do you "struggle" with driving an SUV?

Your argument that personal hypocrisy is fine if a legislator's only problem is the aggregate effect makes no sense in terms of a discussion of legislative prohibitions of sodomy (and, to me, makes no sense at all). And since I don't think one "struggle[s]" with trying to stop driving their SUV, it appears to me that it is a morality-based argument you are trying to make. There is no non-morality-based condemnation of homosexuality that would make sense to me of your use of the word "struggle."

As to how all this applies to Eric Berndt, well, much of the Court's debate in Lawrence related to whether morality alone could justify laws. Justice O'Connor clearly stated that it could not.

Justice Thomas, in his dissent, noted the following:

If I were a member of the Texas Legislature, I would vote to repeal [the sodomy law]. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated.

Justice Saclia, on the other hand, writes:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

To pretend that these men have approached their dissent with the same neutrality as to the morality of homosexuality is to ignore the words they put in their opinions. Justice Scalia may not have written, "Two men? Together? Disgusting!!!" but he left no doubt about the moral position he takes on homosexual conduct.

A more neutral, less inflammatory dissent than Justice Scalia's easily could have been written. Justice Thomas did so in two paragraphs.

To question whether that man himself engages in sodomy is not an ad hominem attack; to the contrary, it -- from hypocrisy to questions about his living under the protection of a rule he opposed to making Scalia face the question that gays and lesbians feared the state might at any time ask them -- is the question itself.

My response:

Chris, you're conflating my two points.

My first point (with the SUV's, not the morality questions) is an example of a legislator voting for something, arguing for something that she doesn't do herself, but only doesn't do herself because only the aggregate effect of the actions matter. Another example is antibiotics. We as a race take too many antibiotics such that the aggregate consumption is making them less effective. But there is no reason for an individual to not take antibiotics even though that individual may think it a good thing for everyone as a whole to cut back. This point had nothing to do with "struggling" or "we're all sinners." It's perfectly logical for these people to make these decisions. The problem is one of collective action, not one's temptations. (as i noted: "To be sure, these are not moral reasons for criminalizing the conduct")

The second, separate, point about morality is, admittedly, harder. My point there was that I see no reason to discount someone's vote for moral legislation because one doesn't always follow it. If I were to steal pencils from my office once in a while, but to still think that stealing was immoral, I don't see how my stealing affects that separate conclusion about the morality of stealing. I am a hypocrite, yes. But what does that have to do with the morality of the action? Disagree or not that stealing is immoral, should be illegal; but to attack the prudence of enacting a law preventing stealing because it's immoral, based on whether the person talking himself steals, is an ad hominem attack. It is "appealing to personal considerations rather than to logic or reason."

But this isn't even getting to the issue, doesn't have anything to do with the Justice. The fact that Scalia thinks homosexuality is disgusting has absolutely nothing to do with whether there is a substantive due process right to it. For an originalist, the homo/heterosexual distinction on a "right to privacy" makes no difference. I love Justice Thomas' dissent for this reason--he very plainly says that although he thinks it's a dumb law, there is nothing in the Constitution that forbids it. You picked out an ugly part of Scalia's dissent, but he says the same thing elsewhere in the opinion. And I agree that Scalia should have not included the section you cited in his opinion, but what does that have to do with the existence of "substantive due process?" Nothing.

If the question hadn't been phrased in a vulgar, rude, and tactless way, I think it would be a valid question for someone who doesn't understand the real jurisprudential issue: "Justice Scalia, wouldn't you be opposed to a law that regulated your private sexual conduct?" His answer would be: "Yes, I would be opposed to the existence of the legislation. But there is nothing in the Constitution that forbids it, and I would uphold the law." And if you think that the Justice never upholds actions that he disagrees with because he is constitutionally constrained, then you need to do some more reading. See, e.g., flag burning, limits on punitive damages.

So my issue is not with the question itself--a valid question for a first year law student, although not an informed legal argument--but that it was put so vulgarly in an attempt to (I think) undermine the legal arguments by painting the arguer a homophobe, which has nothing to do with the existence of substantive due process rights. Only once you make judges legislators by giving them power to determine what is and is not a substantive due process right can you make these claims, and even then (as my second paragraph above argues) such an allegation is pointless and fallacious.

The only thing you can accomplish by painting Scalia a homophobe is that you can convince others to infer that he is an originalist precisely because he opposes the gay rights movement. I have no idea whether this is true, nor, I think, do you or anyone else. I think if people read his material and listen to his arguments, one sees that originalism is grounded in democratic theory and the rule of law, not an opposition to minority movements. Such an attack on his intentions completely ignores the merits of the theory of interpretation, and focuses on the completely unascertainable and irrelevant intentions of the interpretors. I am an originalist, but support the gay rights movement in many respects. What i don't support is taking moral decisions away from a legislature and giving them to 9 lawyers. That is not progress, but gambling that those 9 lawyers are going to agree with your morals.