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GAY RIGHTS
Scalia gets an anal pop quiz at NYU
BY DAVID S. BERNSTEIN
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Dozens of New York University law students found it distasteful that their school presented a major honor two weeks ago to a Supreme Court justice who favors anti-homosexual legislation. Most of those students were stuck outside, protesting, when Antonin Scalia appeared on their campus. But one, Eric Berndt, was lucky enough to get a seat at the question-and-answer session in Tishman Hall. He made the most of it. During his turn at the microphone, Berndt asked Scalia: "Do you sodomize your wife?" The audacious question was apparently too impertinent, even for a public figure who mused cheekily, at a Harvard University speech last September, that "sexual orgies eliminate social tensions and ought to be encouraged." Scalia gave no answer, and Berndt’s microphone was quickly turned off, according to a report in the NYU publication Washington Square News. (No transcript is available — Scalia does not allow his public remarks to be taped.) Which pretty much demonstrated Berndt’s point that butt-penetrating activity between consenting adults is a private matter — contrary to Scalia’s dissenting opinion two years ago in Lawrence v. Texas, which ruled state anti-sodomy laws unconstitutional. According to reports, much of the questioning was hostile. But it was Berndt’s back-door attack that, according to some, embarrassed NYU. Still, "it was a legitimate question," says Fredy H. Kaplan, a senior board member of LeGaL, the Lesbian and Gay Law Association of Greater New York. Kaplan points out that Berndt first asked whether, given the court’s Lawrence decision, Scalia still believes that the government’s interest in banning gay sex outweighs the individual’s right to privacy in the bedroom. Scalia said he didn’t know — which strikes Kaplan as a pretty pathetic response from one of the country’s nine top jurists. "That’s bullshit," Kaplan says. "It questions his approach as a jurist — does he separate his morals and personal views from the cases that are brought before him?" As for Berndt, he justified his question in an open letter to his fellow law students after the incident. "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,’ " Berndt wrote. (The letter is posted at www.thenation.com/doc.mhtml?i=20050502&s=berndt.)
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