Props to Eric Berndt, a law student at NYU. Last week, Berndt caused a little bit of a dust-up when Supreme Court Justicy Antonin Scalia came to speak at the school. Scalia’s the most right-wing Justice on the Court, especially well-known for his stance that “the Constitution is a dead document” which should be read strictly according to the intents and values dominant at its creation. Naturally, when he showed up on the campus of NYU, a fairly liberal place, there was a lot of protesting. As far as I can tell, the protests were pretty boilerplate; a crowd of about fifty or so kids standing on the sidewalk chanting and holding up signs. Man, am I bored with these kinds of demonstrations, which are so ordinary and uninspired as to make little if any point at all. The messages are so entirely repetitive, whether coming from left or right, that they barely register on my consciousness. I long for the beautiful wit and anger of the radical queer organizations of the eighties; groups like Queer Nation and the original ACT-UP fought back at the system with humor and rage without losing the power of either. And their actions never, ever, EVER seemed like a bunch of kids going through the motions; they fought like their lives depended on it. Which, of course, they did.
Which is why I’m so much more interested in what went on inside the auditorium than outside. According to the NY Post:
“The room was packed with some 300 students and there were many protesters outside because of Scalia’s vitriolic dissent last year in the case that overturned the Texas law against gay sex,” our source reports. “One gay student asked whether government had any business enacting and enforcing laws against consensual sodomy. Following Scalia’s answer, the student asked a follow-up: ‘Do you sodomize your wife?’ The audience was shocked, especially since Mrs. Scalia [Maureen] was in attendance. The justice replied that the question was unworthy of an answer.”
Berndt’s question has sent people on both the left and the right into a tizzy; the right wing has gotten understandably upset at the chutzpah, the sheer unmitigated gall of such a question being asked of one of their great icons. The Right should take offense; that, in fact, was the whole point of the question.
The disillusioning thing is how many liberals immediately responded to Berndt’s question with condescending tsk-tsk-tsk’s, as though witnessing the behavior of a misbehaving child. On Daily Kos, Petrox condemned Berndt’s approach as “petty humiliation,” and many of the 100+ comments following his entry gleefully dog-piled on Berndt as “lefty rabble,” and a couple even speculated on the possibility that he was a right-wing plant.
In fact, Berndt’s question was brilliant, and he needs to be praised to the skies for standing up and saying it. It was neither immature nor inappropriate. It was Scalia who showed a lack of integrity in failing to answer Berndt. By dissenting to Lawrence v. Texas, Scalia implicitly maintained that we, the people, have a compelling interest in knowing whether our neighbors or our leaders are comitting sodomy. It is indeed a humiliating question for anyone, and Berndt, by standing up publicly and asking it, stripped the issue right down to the bone. He did not allow Scalia to hide his homophobia beyond layers of legal jargon or social etiquette. The emperor stood naked for a few seconds, in front of a whole auditorium.
Wonkette reproduced an excellent letter by Berndt to his fellow students, in which he shows that he knew just exactly what he was doing:
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…. 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.
The moral cowardice of the liberals who condemned Berndt for confronting Scalia head-on is even more intolerable than the bigotry of one of our most powerful judges. The radical queers of the 80’s and 90’s had a slogan they used to urge closeted gays to come out: “Your silence will not protect you.” The increased ascendency of autocrats, theocrats, and robber barons as the norm in American politics makes that more true than ever. To remain silent, just because we fear our own anger and its consquences, is unacceptable. Anger is a powerful tool. It can be dangerous when it overwhelms our intelligence and makes us stupid, but to turn away from it, to remain silent about who these people really are is unacceptable. Liberals cannot afford to treasure their smug sense of superiority more than the truth.
Our silence will not protect us.