Volume IV, Issue 17 | April 28 - May 04, 2005


Bluntness for Scalia

Gay law student asks Supreme Court justice about sodomy in his marriage


As Justice Antonin Scalia ended a 30-minute speech on how he interprets the law, Eric Berndt, a 24-year-old law student at New York University, raced to the microphone to ask the U.S. Supreme Court associate justice a question.

The April 12 event honored Scalia by dedicating a volume of an NYU law journal to him and the justice agreed to spend an hour with an invited audience of students and faculty.

Berndt, who described Scalia as a “homophobic bigot” whose language is “demeaning” to the queer community, recalled Scalia’s comparison of homosexuality to other forms of sexuality in his dissent in Lawrence v. Texas, the 2003 case that struck down sodomy laws across the country and overruled Bowers v. Hardwick, the 1986 Supreme Court case, that upheld sodomy laws.

“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity,” Scalia wrote. “Bowers held that this was a legitimate state interest.”

Berndt asked Scalia if he believed that the “liberty interest” that gay men and lesbians have to be left alone by their government was “significant” enough to overcome the state’s interest.

“For example, do you sodomize your wife?” he asked Scalia.

There was a “huge collective gasp” from the audience of 400, Scalia’s jaw dropped, and he turned to look toward his Secret Service protection, according to Berndt. The law school student said he was told that many in the crowd of 300 people viewing the event in another room on a live feed cheered.

The justice never answered the question, but then Berndt was not expecting an answer nor did he imagine that Scalia’s mind would be changed. The question was an “inversion of homophobia itself,” Berndt said. If Scalia believes that gay men and lesbians should be subject to that sort of inquiry, then let the justice respond to it as well was his perspective.

“He should not be morally shielded from that,” Berndt said. “He is asserting that it is not a serious invasion of liberty.”

Scalia is a “mouthpiece” for many on the American rightwing who have a palpable dislike for gay men and lesbians, Berndt said, and he was striking back.

“My question was a symbolic act, a gay man against a homophobe,” he said.

Scalia has not limited his anti-gay language to the Lawrence dissent. He employed inflammatory rhetoric in his 1996 dissent in Romer v. Evans, the Supreme Court case that struck down a Colorado constitutional amendment passed in a referendum that barred the state as well as local governments from enacting laws that banned sexual orientation discrimination.

“I asked him because of the language in those and other cases,” Berndt said. “It was completely unnecessary.”

Scalia continued that tone during his presentation with the students and faculty.

“He was making fun of the majority [in Lawrence],” Berndt said. “It was an extremely offensive rant and nobody booed or hissed or anything.”

Berndt is relatively new to this sort of action. He only came out of the closet 17 months ago. The second-year law student graduated with a bachelor’s degree in economics in 2003 from the University of Chicago, where he belonged to a fraternity and was a defensive lineman on the football team.

“I played football, I studied and on weekends I tried to convince girls not to like me,” Berndt said. “I devoted a lot of energy to passing as a straight guy.”

At 5’9” and 200 pounds, he still looks like a football player. Some of the mental toughness required in that sport was useful during the aftermath of his question.

“It’s all people were talking about for a week afterwards,” Berndt said. “There were a lot of people who thought it was bad for the school.”

He was criticized both inside and outside of NYU, though on the Web, Berndt was heralded for what he did. What was notable to Berndt was that his question did not spark an anti-gay backlash.

“There are places where I’m a hero, some places I’m a jackass, but there is no place where I’m an uppity homosexual,” he said.

The question and an anti-Scalia demonstration that included OutLaw, a group of queer law students at NYU, prompted a school-wide e-mail message from Richard Revesz, the law school dean.

“[O]ne student posed an extraordinarily rude, immature and inappropriate question,” Revesz wrote. “Such a show of incivility to any individual invited to be a guest of the Law School, let alone to a Supreme Court justice, has no place in our intellectual community. It is insulting not only to our guest but also to the law school community as a whole, and impedes the robust debate that events such as these are designed to promote. Questions can be asked—and should be asked—that are challenging, critical, and demanding.”

Berndt sent out his own e-mail response.

“It should be clear that I intended to be offensive, obnoxious and inflammatory,” he wrote. “How am I to docilely engage a man who sarcastically rants about the ‘beauty of homosexual relationships’ (at the Q&A) and believes that gay school teachers will try to convert children to a homosexual lifestyle (at oral argument for Lawrence)?”

Berndt said that not only would he ask the same question of Scalia again, he recommends that others start asking the justice that question should he come to their town.

“I think it would be a good tradition if someone asked him that every time he spoke at a law school,” Berndt said.

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