Scalia Sodomy Questioner Speaks Out

April 19, 2005

NYU law student Eric Berndt caused a scandal last week when he asked Justice Scalia whether he sodomizes his wife during a Q&A session at the school. In an open letter to his classmates that has been picked up by the national media, Berndt argues that the question had both social and legal significance:

It should be clear that I intended to be offensive, obnoxious, and inflammatory. There is a time to discuss and there are times when acts and opposition are necessary. Debate is useless when one participant denies the full dignity of the other. 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 [in oral argument for Lawrence]?....
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.

LawDork has further analysis and links to other comments on the original event.