Scalia at NYU
I share A3G's problems with the way in which the questioner attempted to engage Justice Scalia on the field of intellectual battle. Certainly, the rights of gay students is a big issue on law school campuses these days with the recent decision in Lawrence, as well as of the Massachusetts Supreme Court, not to mention the ongoing dispute over the constitutionality of the Solomon Amendment, which requires law schools to allow JAG corps to interview law students on campus, notwithstanding the fact that the Navy's hiring policy is at odds with many if not all law schools policies against non-discrimination.
Even recognizing the inherently explosive nature of this issue, debate can and should be conducted over the issue with mutual respect. Justice Scalia's position in the Lawrence case can be questioned on its face, as many commentators, including people like Randy Barnett, have. A resort to ad hominem attacks is not the way to accomplish mutual respect. Some have defended the question posed to Justice Scalia by saying that it goes to heart of the right of privacy: does Justice Scalia want people asking him what he does in his bedroom? But couldn't the question be put just this way: Justice Scalia, don't you want privacy with regard to consensual sexual acts? That is a legitimate question, and one which I am sure the Justice would have answered since it goes to the heart of the existence of a right to privacy in the constitution. But phrasing the question as the questioner did is not only rude and unneccessary but likely done simply for shock value. The question in Lawrence is not whether sodomy itself is good or bad, but whether the state of Texas through its legislature could constitutionally punish those engaging in such conduct. I'm not attempting to defend or refute Justice Scalia's position on the right of privacy; what I am defending is a civility of discussion, a willingness to criticize and question legal positions on the merits of the arguments. Freedom of speech is indeed a prized possession, a bulwark of liberty, allowing us to engage and criticize our leaders. It was on display at its best and worst yesterday at NYU.