Improprieties

Okay, I’m going to go out on a limb here and defend the student who asked Justice Scalia “do you sodomize your wife?” At the outset, I think it was obviously undignified and offensive—and of course Beckley is right that blowing air-horns and shouting profanities to disrupt a meeting are inappropriate too. But the question itself is a pertinent and legitimate question. Justice Scalia’s repeated derision of the right to privacy, in Lawrence as in other cases, rests on his belief that the government has the legitimate authority to control private, adult, consensual sexual activity. That belief, in turn, is based on the idea that such private conduct has attenuated negative moral effects on “society at large.” Why can we not investigate the effects of Scalia’s private conduct?

In his Lawrence dissent—characterized by such startling assertions as “there is no right to ‘liberty’ under the Due Process Clause,” 539 U.S. at 592—Scalia stated “I do not know what ‘acting in private’ means.” Id. at 597. He of course did not mean this literally—what he meant was that even private actions are matters of public concern, for no other reason than that the voters disapprove. Indeed, in criticizing a sentence from Justice Stevens’ Bowers dissent, he wrote:

“[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

Id. at 599. Now, if “the promotion of majoritarian sexual morality” is a legitimate state interest, then it is entirely appropriate for us to demand to know what each person’s sexual practices are—and particularly high government officials. It has been rightly said that the purpose of the Bill of Rights was to remove some things entirely from political discussion. Justice Scalia believes that private, adult, consensual sexual activity is not among those things. Therefore, it is entirely legitimate for a citizen to demand to know what Justice Scalia does in private. After all, he thinks it is perfectly okay for him and his deputies (i.e., the elected officials he votes for as a citizen) to demand to know what John Geddes Lawrence as doing in the privacy of his bedroom.

Explain to me, please, why it is wrong for this student to violate the privacy of Justice Scalia’s sexual life—Scalia being a man who “do[es] not know what ‘acting in private’ means”—but okay for the people of Texas to do the same to Mr. Lawrence.

Update: I respond to Owen Courreges here.

Update 2: More replies to critics here.