April 16, 2005
Follow-Up: Scalia Sodomy Question
There’s been a lot of fallout from the question asked Scalia at NYU. The Dean sent an email essentially saying he was disappointed, some have called for the student’s expulsion, and the blog sphere is filled with opinions.
The student in question sent an explanation –which I think is a pretty good read:
Although I my question was legally relevant, as I explain below, an independent motivation for my speech-act was to simply subject a homophobic government official to the same indignity to which he would subject millions of gay Americans. It was partially a naked act of resistance and a refusal to be silenced. I wanted to make him and everyone in the room aware of the dehumanizing effect of trivializing such an important relationship. Justice Scalia has no pity for the millions of gay Americans on whom sodomy laws and official homophobia have such an effect, so it is difficult to sympathize with his brief moment of "humiliation," as some have called it. The fact that I am a law student and Scalia is a Supreme Court Justice does not require me to circumscribe my justified opposition and outrage within the bounds of jurisprudential discourse.
Law school and the law profession do not negate my identity as a member of an oppressed minority confronting injustice. Even so, I did have a legal point: 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. Beyond exerting official power against homosexuals, Scalia is an outspoken and high-profile homophobe. After the aforementioned sarcastic remarks about gay people's relationships, can anyone doubt how little respect he has for LGBT Americans? Even if no case touching gay rights ever came before him, his comments from the bench (that employment non-discrimination is some kind of "homosexual agenda," etc.) and within our very walls are unacceptable to any self-respecting gay person or principled opponent of discrimination. 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. Friends have forwarded me emails complaining of the "liberal" student who asked "the question." That some of my classmates are shallow and insensitive enough to conceptualize my complaint as mere partisan politics is disheartening. Though I should not have to, I will share with everyone that I am neither a Democrat nor Republican and do not consider myself a "liberal" except in the classical sense. I hope that we can separate a simple demand for equality under the law and outrage over being denied it from so much dogmatic ideological baggage. LGBT Americans are still a persecuted minority and our struggle for equal rights is still vital. 4 out of 5 LGBT kids are harassed in school - tell them to debate their harassers. Suicide rates for them are much higher than for others. We still cannot serve in the military, have little protection from employment and other forms of discrimination, and are denied the 1000+ benefits that accrue from official recognition of marriage. I know some who support gay rights oppose my question and our protest. Do not presume to tell me when and with how much urgency to stand up for our rights.
I am 17 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. At least do not allow yourselves to become complicit in discrimination by demanding obedience from its victims. Many of our classmates chose NYU over higher-ranked schools because of our reputation as a "private university in the public service" and our commitment to certain values. We were the first law school to require that employers pledge not to discriminate on the basis of sexual orientation. Of Scalia's law schools that have "signed on to the homosexual agenda," our signature stands out like John Hancock's. We won a federal injunction in the FAIR litigation as an "expressive association" that counts acceptance of sexual orientation as a core value. Those who worry about our school's prestige should remember how we got here and consider whether flattering those who mock what we believe and are otherwise willing to fight for appears prestigious or pathetic. We protestors did not embarrass NYU, Scalia embarrassed NYU. We stood up to a bigot for the values that make NYU more than a great place to learn the law. I repeat my willingess to discuss this issue calmly with anyone who respects my identity as a gay man. I have had many productive talks with classmates since Tuesday and I hope that will continue.
Respectfully,
Eric Berndt
April 15, 2005
Stage III?
There’s a good Op-Ed piece in the LA Times on the judicial assault by the conservative movement in our country.
Color me puzzled
The stock market can’t be doing bad. There were tax cuts! THERE WERE TAX CUTS!!!!
April 14, 2005
GOP:: Gay Old Party?
A Republican State Senator from Minnesota has come out of the closet.
Puzzling Delay
In the Washington Times.
He’s for an independent Judiciary, but he’s against judicial review of the law? So he’s for an independent judiciary with no real purpose? Sometimes I’d like to force the conservatives to live in the world they imagine just for one year, so they can see how foolish it really is.
And did DeLay just say he was against a right to privacy in the same interview where he stated he would refuse to answer questions about his ethics in press conferences?
Still Unanswered
Does Scalia sodomize his wife?
April 13, 2005
Nothing to see here
The other nugget that DeLay dropped today, is that’s he’s done talking about all of these distractive ethics things. Really, we have better things to do.
He said he would continue to hold news conferences, "but only if everyone is here for the intended purpose" of asking about the Republican legislative agenda.
So there. Get back to work. All of you!
Why do I get the idea...
...that Bush rode DeLay around the corral a little bit?
Delay Pre-Bush meeting:
Delay post Bush meeting:
Don’t worry though, he’s still threatening the judiciary – just not physically anymore. Now he’s suggesting congress can either dismantle the federal court system, or at least hold back funding.
Quote of the Day
Mis-Focused
In a follow-up to a pretty good piece on Bush and the hunt for Bin Laden, the Cunning Realist makes a sharp left turn to silliness. “If the administration is so focused on Bin Laden”, he wonders, “why is the FBI most wanted picture of Bin Laden out of date?”
This is just silly. First of all, and probably most importantly,these posters are pretty meaningless. I mean,if these posters are our best chance of capturing OBL or other’s, we’re all in a heap of trouble. The FBI is a domestic intelligence agency – the most wanted posters aren’t really meant as much more than eye candy for the website and, in the case of domestic criminals, an off handed hope someone will spot a fugitive at McDonald's. They are not, even for the real ‘most wanted’ a reflection of the real efforts the agency is using in trying to find someone.
Secondly, the main ‘terrorist’ page specifically points out that many of them are probably tied to other terrorist acts (including 9-110, but that the posters only reflect crimes that they have been indicted for.
Now, perhaps a reasonable criticism could be mounted as to why OBL hasn’t been indicted for 9-11 (and, as far as I can tell he hasn’t), but the answer seems simple: You indict people you plan to go after criminally, not militarily. And, I’d be willing to bet that the indictment process itself would confer a status to OBL that the government wants to avoid (because it would infer rights).
Hey, there are lots of things about the War on Terror which deserve criticism – this isn’t one of them. In fact, if anyone from the FBI is reading this: Please, don’t bother updating the posters. Focus your energies on actually investigating and breaking up terror cells which may be in the country and other crimes.
There’ll be plenty of time to update the information after they’re all caught.
April 12, 2005
Those Foreign courts
In their assault on the judiciary, one of the rallying calls is that the SCOTUS is, apparently, in cahoots with foreign jurisdictions, deciding US laws based on these literal (and apparently metaphorical) ‘foreign’ ideas.
As such, our friend Mr. Cornyn has offered up S. RES. 92 which expresses:
He cites three cases, as signifying why this ‘sense’ is required. Atkins v. Virginia Lawrence v. Texas and Roper v. Simmons
Looking at these cases, it is obvious why we need to worry.
Lawrence v Texas took 18 pages to layout the case and the underlying reasoning for the decision. This is the ‘Foreign’ section
In Atkins v Virginia, it takes 17 pages for the opinion and dissent. The foreign reliance is relegated to a footnote, which merely points out that the courts belief that US Society frowns on execution of juveniles (stating such a belief is similar to that of other European nations)
Similarily, in Roper, since it was similar to Atkins (Death Penalty for Juveniles), the references to other jurisdictions come from quoting other cases in talking about the evolution of the issue in the United States. The court does point out that the US was one of the few countries which allowed juvenile executions, and that the practice probably violated several treaties.
So, it is obvious that the ‘black robes’ represent a serious threat to our red-blooded American rights. At least as they apply to jailing gay men and executing kids.
(By the way, Bowers - which conservatives constantly mourn, borrowed from other countries (and the bible) as well...
All from a concurring opinion in Bowers.)
Comments:Double Shame
DEMOCRATIC Senate Majority leader Billy Wayne Bailey slipped in an amendmentmaking English the official language of W. Virginia. (Insert obvious W. Virginia / English joke here).
He gets a double shame for:
- The purpose of the amendment
- Misrepresenting the purpose of an amendment when he offered it. (He claimed the amendment "clarifies the way in which documents are produced".)
Shame also goes to people who voted for a bill, without reading it. Which, obviously, happens more often than people want to admit.
Where credit is due
I would be remiss in not noting conservative Ileana Ros-Lehtinen for being brave enough to break with the party line and argue that Don’t ask Don’t tell seems to be stupid and wasteful.
April 10, 2005
Biting the Hand
I don’t think that anything Feinstein said would make her worthy of the Pink Brick, especially since the runner up was Lou Sheldon. By the way, I’m pretty sure Barney Frank has similar views.
There’s room for disagreement, and you don’t have to like what she said – however, to give her an award which is traditionally given to people who actively work against gay rights seems childish and vindictive to me.
We need allies – even if we don’t agree with them all the time.
It’s Symbolism Stupid
Let me start by saying (belatedly), on the topic of the Florida law which removes the requirement to flee if possible when in danger, before responding with force, I’m with Alex. Most states don’t have that requirement and I don’t see anything wrong with it per se.
My guess is, in practice, that particular clause didn’t mean much legally anyway. If you were in danger, I find it hard it imagine a prosecutor would be able to show that fleeing was the better option. And, if you were punched by someone and then shot them in the back as you run, it’s no longer self defense.
There are some other parts of the bill, I’m not sure of:
(b) As used in this subsection, the term "criminal prosecution" includes wrongfully arresting, detaining in custody, and charging or prosecuting the defendant. The law enforcement agency or state attorney that brought the criminal prosecution is liable to the defendant for the payment of fees
I have no problem if this happens to /everyone/ who is falsely accused of a crime – but I have a feeling it’s not. I also find it interesting that it is a law enforcement agency held liable, but this seems to suggest that it is the attorney himself who is liable. It seems to me, if the police have probably cause, wouldn’t the DAs be obligated to prosecute?
In the same vein, if someone uses force against a person they deem as a threat, and that person then sues for the injuries, and loses, both the person and his/her attorney are jointly and personally liable for the costs of the person accused.
These sections, to me, are what makes this bill heinous. There seems to be a lot of attorney bashing here. I understand the purpose is to protect the rights of the people who use justified force – but it seems unprecedented to me, and protections which I’m willing to bet aren’t afforded to other defendants.
Rick DeMent said (at April 12, 2005 12:39 PM):
Personally I love to flee, fleeing is my first idea in most situations. But if you
(the rhetorical you not you personally) would rather stand your ground with a savage
criminal and find out for sure who is the best shot, I say load up!
