At a recent question-and-answer session at NYU, a law student asked Justice Scalia: "Do you sodomize your wife?" The audience went silent, as did the student's microphone. A day or two later, the Dean of NYU's law school even sent a school-wide e-mail criticizing the student. The question is simple: Does the student who asked this question warrant our disapproval?
On the one hand, people obviously recognize that manners matter. If during a professional dinner one of the diners started eating spaghetti with his hands, the other's indignation would be warranted. If a diner farted loudly at the table, again, any disapproval would be well-taken. And if the offensive diner asked, "Have you effed your wife lately?" well, not many police officers would arrest the other if he gave the offensive diner a smack across the face.
Under a "good manners" view of public discourse, then, the student should be shamed.
On the other hand, under Justice Scalia's vision of "liberty" under the Due Process Clause, whether one sodomizes a consenting adult is indeed a public question. Given that, according to Justice Scalia, our sex lives are part of the public record, the question seems warranted. And, yes, our sex lives would be public in Justice Scalia's jurisprudential world. This is easy to illustrate.
Imagine that neighbors hear moaning next door: it sounds like two men having sex. They call the police, and the police search the home. They invade a man's castle because someone might be having sex.
The police interrogate the two consenting adults to determine whether they had sex. If the "suspect" (funny how an adult having sex with another consenting adult can be a suspect) admits to having had sex, then he would be arrested.
The arrest would be part of the public record. When the suspect appeareds in court, his sex life would again be public. If the suspect had a trial, his sex life would, be very public. In some states, the adult would have his face on the internet with rapists and child molesters. Sodomy is a sex crime, after all.
So if Justice Scalia thinks that "liberty" does not include the right to have sex with other willing adults, then he thinks that there is no such thing as sexual privacy. Since, as I noted above, if a majority of citizens want to compel publication of your sex life, then they can.
One problem with the practice-what-you-preach argument is that Justice Scalia perhaps does not believe that sodomy should be criminalized. Rather, he merely believes that the Due Process Clause does not prevent states from criminalizing it. The problem, though, is that Justice Scalia wrote in Lawrence that sodomy could be criminalized as a "certain form of sexual behavior [that is] 'immoral and unacceptable'." If sodomizing one's wife is "immoral and unacceptable," than didn't the law student have the right to ensure that one of the nine most power members of American society behaves morally and acceptably?
Thus, while I think that the law student who questioned Justice Scalia deserves our disapprobation, still, he behaved no less shamefully than Justice Scalia would have allowed the police officers in Lawrence v. Texas. I hope that our outrage at this misguided law student will also be directed at the misguided legislatures that would ask equally offensive questions.