Justice Scalia Mum on Marital Sodomy
Volokh.com -- one of the best blogs out there for people interested in the law from a fairly libertarian perspective -- had a post today on a question posed recently by a student at NYU to Supereme Court Justice Antonin Scalia, where he was asked point blank if he sodomized his wife.
My take on the mini-controversy:
The main problem with Mr. Berndt's question is that it lacked a good prelude or any sense of context. He should have asked the Justice whether or not a legislature has the unqualified authority to subject individuals to criminal punishment or even civil reprimand solely because of their consensual, non-exploitative sexual practices.
Then he could have asked theatrically, "Justice Scalia, have you ever engaged in a consensual sex act with anyone that violated the law of the state where the act was committed?" Or assuming that he has lived in Virginia for an extended period of time, he could have honed his question further: "Mr. Justice, have you ever committed the act of sodomy with any person, including your wife, in violation of the statutes of the Commonwealth of Virginia?"
Sodomy laws facially applied to all persons, including married heterosexual persons, so a question about whether or not a Justice committed a crime is more than acceptable. In this case, it was imperative.
Ideally, a more carefully-crafted inquiry regarding Scalia's willful denial to recognize the liberties of gay citizens would have resulted in the following: (1) an extended comment on relevant Roman Catholic dogma pertaining to the "violence" which gay parents theoretically commit upon their children by virtue of their sexual orientation, and (2) his recusal from a prospective gay marriage case because of his stated viewpoints.
The terse question turned Justice Scalia into victim of mild sensationalism that strikes many as puerile and offensive. A far better approach would have prompted Scalia to twist in the caverns of his formidable intellect and expose his hollow rhetorical commitment to a jurisprudence that champions individual liberty.
My take on the mini-controversy:
The main problem with Mr. Berndt's question is that it lacked a good prelude or any sense of context. He should have asked the Justice whether or not a legislature has the unqualified authority to subject individuals to criminal punishment or even civil reprimand solely because of their consensual, non-exploitative sexual practices.
Then he could have asked theatrically, "Justice Scalia, have you ever engaged in a consensual sex act with anyone that violated the law of the state where the act was committed?" Or assuming that he has lived in Virginia for an extended period of time, he could have honed his question further: "Mr. Justice, have you ever committed the act of sodomy with any person, including your wife, in violation of the statutes of the Commonwealth of Virginia?"
Sodomy laws facially applied to all persons, including married heterosexual persons, so a question about whether or not a Justice committed a crime is more than acceptable. In this case, it was imperative.
Ideally, a more carefully-crafted inquiry regarding Scalia's willful denial to recognize the liberties of gay citizens would have resulted in the following: (1) an extended comment on relevant Roman Catholic dogma pertaining to the "violence" which gay parents theoretically commit upon their children by virtue of their sexual orientation, and (2) his recusal from a prospective gay marriage case because of his stated viewpoints.
The terse question turned Justice Scalia into victim of mild sensationalism that strikes many as puerile and offensive. A far better approach would have prompted Scalia to twist in the caverns of his formidable intellect and expose his hollow rhetorical commitment to a jurisprudence that champions individual liberty.
posted by Nikos A. Leverenz @ 5:27 PM
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