Back in 2004, Justice Antonin Scalia was participating in a panel discussion at NYU Law School when the subject of his famously scathing dissent in Lawrence v. Texas came up. One year earlier, the Supreme Court had ruled in Lawrencethat the Constitution prohibits criminalizing sodomy between consenting adults, overturning recent precedent and saying, effectively, that gay men and lesbians couldn’t have their sex lives treated as criminal activity.
As he often is when the subject relates to gay rights, Scalia was furious, writing: “so imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream’; that in most States what the Court calls ‘discrimination’ against those who engage in homosexual acts is perfectly legal.”
When the time came for audience questions, a student named Eric Berndt stood up in the packed auditorium and pressed Scalia to explain his dissent, particularly his opinion as to whether it was constitutional for the government to peer into the bedrooms of consenting adults and punish them for what goes on in there. When Scalia did not answer to the student’s satisfaction, Berndt asked him, “Do you sodomize your wife?”
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