April 18, 2005

Defending rudeness.

The NYU law student who asked Justice Scalia "Do you sodomize your wife?" is given a forum to explain his behavior in The Nation:
The idea that I should have treated a man with such repugnant views with deference because he is a high government official evinces either a dangerously un-American acceptance of authority or insensitivity to the gay community's grievances....

I know some who support gay rights oppose my question... Do not presume to tell me when and with how much urgency to stand up for our rights.

I am seventeen months out of a lifelong closet and have lost too much time to heterosexist hegemony to tolerate those who say, as Dr. King put it, "Just wait." If you cannot stomach a breach of decorum when justified outrage erupts then your support is nearly worthless anyway.

Didn't King emphasize strict decorum in civil rights demonstrations? It was an extremely effective strategy!


Uncle Jimbo said...

The harm done to any cause by Pie throwers and rude clowns is much greater than the puny joy they give themselves for their boldness.

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Walt said...

Did he just say, "heterosexist hegemony?"

Did I miss a memo? Did I miss the meeting where we learned the secret handshake? Am I gonna have to pay dues, now?

Or is it just way too long since I graduated from law school?

A.J. Romens said...

I think there are better ways to phrase such a question, but the question is still slightly pertinent. What I would like to ask Mr. Scalia: "Do you feel you have a fundamental right to sodomize your wife?"

Tim said...

One of my former rhetoric professors argues that when Dr. King responds to the "just wait" claim in his Letter From A Birmingham Jail he does so in a way that enacts restraint and moderation, rather than over-the-top and verbally violent ways. Here's what King said in that letter:

"Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six- year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you no forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait."

Here, King offers a lengthy periodic sentence that continually builds up our emotions and expectations of a stern and passionate response. After reading all of that (probably with one breath!) we expect a passionate and loud climax. Dr. King, however, just declares--with quiet restraint--that it is hard to wait, given the situations African Americans were facing. He didn't respond in a harsh or over-the-top way. He did so with restraint--a restraint that possibly echoes the Southern Christian Leadership Council's restrained approach to protests and argument.

I think it's a little lame that the student is defending an undecorous style by appropriating the words Dr. King used in a way that actually refutes the student's argument style!

Ann Althouse said...

Tim: beautifully argued! Thanks!

A.J.: and I think we know the answer to that much better question is no. Scalia is very predictable sticking to the original understanding, at least when the question is that easy. Another question would be "Do you think it should be legal to sodomize your wife?" and I think his answer there would predictably be "Of course, but it's not my job as a judge to make that the law if the legislature wants to make it illegal."

Jimbo: Yes, there's been too much pie throwing lately.

Walt: it's a term that is in no way designed to win converts -- just to push people away.

mcg said...

Another question would be "Do you think it should be legal to sodomize your wife?" and I think his answer there would predictably be "Of course, but it's not my job as a judge to make that the law if the legislature wants to make it illegal."

I am sure you are right about this. He engaged in similar restraint in the Nancy Cruzan case, in which he stated that he believes states should be able to pass laws outlawing suicide, so it follows that the federal government must stay out of the issue.

in_the_middle said...

i'm sorry, but if the question is one that arguably goes AGAINST the 14th amendment (exactly what was aruged in Lawrence v Texas), then HOW ON EARTH can you guys argue that Scalia's response SHOULD be that 'it's up to the legislature???"

Virginia v. Loving, anyone?

Pedro said...

News flash! The Ends Now Justifies the Means!

New York -- Last week somebody decided that, since he feels strongly about something, he is entitled to treat those who disagree with him with absolute contempt. "My mother used to tell me I was special," he said, adding "so I know that my opinion is worth more than everyone else's. Since I already know I'm right, I can do and say whatever I want. If you criticize me, you are oppressing, censoring, and intimidating me."

alkali said...

The bit Prof. A. quotes is, I agree, mostly foot-stamping, but the student makes a fair point here:

Justice Kennedy's majority opinion in Lawrence asked whether criminalizing homosexual conduct advanced a state interest "which could justify the intrusion into the personal and private life of the individual." Scalia did not answer this question in his dissent because he believed the state need only assert a legitimate interest to defeat non-fundamental liberties. I basically asked him this question again--it is now the law of the land. He said he did not know whether the interest was significant enough. I then asked him if he sodomizes his wife to subject his intimate relations to the scrutiny he cavalierly would allow others--by force, if necessary. Everyone knew at that moment how significant the interest is.

I think that makes a pretty good point. I'm not sure I would have asked the question, but I can see his point.

As to the MLK point, I would note that decorum is in the eye of the beholder. "Would Dr. King have ruined someone's lunch by making them sit at the same counter as a Negro? Or ruined their ride to work on the bus by making them sit with a Negro?"

Ann Althouse said...

In_the_middle: of course there is a 14th amendment question being posed, but Scalia's answer to it is that there is no such right, that the Constitution doesn't just mean what you think it should mean.

Pedro: funny!

Alkali: I realize there is a substantive ground to question Scalia, but it doesn't justify the form of the student's question. It can't be that when you have a good question or even when you have a good question that you think someone has avoided answering, you get to be disrespectful. The fact is the student hurt his own cause, and he acknowledges that others who share the cause are annoyed with him for hurting it.

Mark Daniels said...

Your last two lines say it all.

We do have freedom of speech in this country. So, to an extent I suppose, we have the right to be rude to others, irrespective of their stations.

But I wonder how politic it is.

Incidentally, while I personally regard the practice of homosexuality as a sin, I favor moves toward securing full civil rights for gays and lesbians, including an openness to the establishment of some sort of civil recognition of marriage-like relationships. (This I deem no threat to marriage or the Church. I regard "marriage" under state laws to be a different, though often coterminous, institution from the relationship we recognize within the Church.)

I say all this by way of explaining that my rejection of rudeness has nothing to do with a bias.

Interesting post!

Mark Daniels

Richard Fagin said...

Hey y'all, guess what? Under the Texas law overturned in the Lawrence case, it was in fact legal for a man to sodomize his wife. Sodomy (deviate sexual intercourse, more broadly) was only proscribed between persons of the same sex. Texas Penal Code sec. 21.06(a). How funny if Justice Scalia had been able to tell his heckler that the question was not relevant because the law did not proscribe the questioned conduct. An equal protection argument sounded a whole lot better than a right to privacy argument, to me at least.

Matt said...

And in fact, Richard, that's precisely the approach Justice O'Connor took in her opinion. The Texas law violated equal protection because it discriminated based on the "type" of sodomy involved.

Interestingly, though O'Connor's approach is the more "conservative" one in that it would allow some sodomy laws to remain on the books, it has far broader implications on the gay marriage debate than does the privacy rationale used by the 5 vote majority.

Richard Fagin said...

Matt, agreed on the gay marriage issue. That begs the question whether Congress has express power to define whether gay marriage is or is not an equal protection issue by the 14th Amendment. Any comments, Prof. Althouse?

Kathleen B. said...

Professor Althouse - You said "Alkali: I realize there is a substantive ground to question Scalia, but it doesn't justify the form of the student's question."

What would have been the right form?

Thanks - I love you blog. Kathleen

Kathleen B. said...
This comment has been removed by a blog administrator.
Ann Althouse said...

Kathleen: He should not have asked a prying personal question. He could easily have said: Do you think the state should be permitted to make it a crime for two persons of the same sex to engage in the same act that does not criminalize for two persons of the same sex? Of course, we already know the answer to that, so what would be the point?

Maybe he wanted to ask something more like: You do realize, don't you, that heterosexual couples enjoy, without penalty, the very act that Texas made a crime for a same-sex couple? But obviously, we know he knows that.

I really don't think there is a question Scalia hasn't already answered, but I think there is a desire just to argue with him or to express one's opinion that it's unfair to treat the two couples differently. But I understand Scalia's answer to be: use that righteous anger of yours to petition the legislature for redress -- even if I share your anger, there's nothing I can legitimately do about it.

Ann Althouse said...

Richard: assuming you're talking about the Defense of Marriage Act, I think Congress arguably has power to pass it under a combination of the Full Faith and Credit Clause (re permitting states not to recognize other states' gay marriages) and various other powers (re defining marriage for federal purposes, like the tax code). Congress does not have the power to define the meaning of the Equal Protection clause, however it can remedy violations of the Equal Protection clause as defined by the Court.

in_the_middle said...

ann: humor me if you can and explain the theory that the question of privacy and equal protection wouldn't fall under the 14th amendment in this question? and in reading the 14th amendment, it's not just what i WANT it to mean, it's interpretation, if strict, (and conservative), would actually explain the SCOTUS decision overturning Lawrence. or are you arguing that Lawrence should nto have been overturned?

cannot a citizen who is being treated unfairly under the 14th amendment (eg being singled out for an application of the law, re: o'connor's position) seek redress under the constitution?

i believe that was answered in Lawrence, and the answer is yes.

don't agree with this student's rude line of questioning; i don't care if it's a justice or the corner candlestick maker. disrespect gets you nowhere.

but i'm not finding much to agree with your assertions prof. althouse, that this wouldn't be a privacy issue under the 14th amendment if it's claimed to be a violation thereof, re: lawrence.

Ann Althouse said...

middle: "humor me if you can and explain the theory that the question of privacy and equal protection wouldn't fall under the 14th amendment in this question." In what question? Are you talking about my response to Richard about congressional power or are you asking about Lawrence? I haven't written about the majority opinion in Lawrence here, which was based on substantive due process (aka privacy) and for O'Connon, equal protection. I was only talking about Scalia's view, which was the dissent.

Smilin' Jack said...

How can the student's question be rude/impertinent/inappropriate etc.? In Scalia's view the government (i.e we the people) have a perfect right to ask such questions, and in fact to demand answers at gunpoint. Sauce for the goose etc.

Ann Althouse said...

Smilin': are you saying we shouldn't criticize people whenever they have a right to do what they do?

Smilin' Jack said...

I'm saying that in Scalia's view that is a perfectly proper question, one that the government can (and should, given pertinent laws) ask anyone. So why should he (or you) criticize the student for asking it of him? Of course it's an impertinent and insulting question--that's the student's point! Anyone who regards it as objectionable on those grounds should regard it as equally objectionable coming from the government.

Matt said...

Was there a relevant point at the core of the student's question? Yes. Was it posed in a way so as to be as sensationalistic and direct attention to the student rather than the answer? Absolutely.

As one far more liberal than Prof. Althouse, and a fellow alum of NYU, I think we could have done better.

FWIW, while I'm only an aspiring lawprof, I think DOMA is pretty blatantly unconstitutional in that it requires states to violate the full faith and credit clause.

Abraham said...

Anyone who regards it as objectionable on those grounds should regard it as equally objectionable coming from the government.

You are completely missing the point. Scalia did not make the law. He does not enforce the law. He does not have the discretion to repeal it simply because it is a stupid, obnoxious, or totally unfair law. Under his own philosophy of jurisprudence, he cannot be shamed into changing the law; his power is limited to rectifying Constitutional infirmities, and thus he shouldn't and won't be held responsible for the asinitiy of an idiotic but constitutionally permissible statute.

Smilin' Jack said...

The constitutional question here is whether a state has a legitimate interest in inquiring into the private sexual practices of its citizens. Scalia's position is that it does. Therefore, he cannot reasonably regard such qhestions as illegitimate when they are posed to him.

Abraham said...

Therefore, he cannot reasonably regard such qhestions as illegitimate when they are posed to him.

I don't see how this follows. Are you saying that Scalia must agree with every law he finds to not be constitutionally prohibited? Maybe he really hates the law and resents the government intrusion!

Smilin' Jack said...

The point is why Scalia thinks the law is constitutional: he believes that people (the state) have a legitimate interest in asking such questions. So why get all upset when someone does?

Anyway, Scalia seems perfectly capable of striking down laws just because they offend people's dignity--check out his dissent in Treasury Employees v. Von Raab where he objects to drug testing of narcs because it is an "invasion of their privacy and affront to their dignity." But I guess the dignity of sodomites doesn't count.