The One Thing I Wish I Could Have Asked Antonin Scalia

Antonin Scalia has died. He was perhaps the nuttiest supreme court justice of my lifetime, with some ultra reactionary views. Things like his insistence in Lawrence v. Texas that consensual homosexual sex could be outlawed; or his defense of displaying the Ten Commandments in courthouses with logic such as most Americans’ religions believe in it; or his insistence that an individual mandate to buy health insurance was tantamount to forcing someone to buy broccoli.

Granted, there were also times where he took positions liberals stood with, like his belief that the Second Amendment does not guarantee the right to an assault rifle, or that checking arrestees against DNA databases without cause constituted an attack on civil liberties.

Then there were his other quirks, like getting the most laughs of any justice during court hearings, by a wide margin. Or his 21-page memorandum insisting that his going on a duck hunting trip with Dick Cheney did not constitute a conflict of interest. Or saying that an eyewitness can identify someone by seeing their face without knowing their height by citing the fact that “the Lone Ranger wears a mask instead of a poncho.” Or even the fact that Scalia seemed to telegraph exactly how he would rule in any given case.

I never met Scalia, but there is one thing I always wanted to ask him.

In Lawrence v. Texas, where the court majority concluded that sodomy laws were unconstitutional and people have a right to engage in consensual homosexual behavior with each other, Scalia issued a blistering dissent assailing the notion that outlawing homosexuality was unconstitutional.

What struck me in particular was that, according to Scalia, not only is it constitutional to outlaw consensual acts between two people of the same gender, but even to outlaw consensual behavior someone does unto oneself:

…State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of [Barnes v. Glen Theatre, Inc.’s] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision… [Emphasis added.]

Scalia believed that, shall we say, self-love could be prohibited by law under the constitution.

What I would have asked Scalia, if I met him (and also if I worked up the nerve), is this: did you ever engage in this behavior you believe can be made illegal? And if so, do you think what you did constituted a crime?

Although I will never know the answer to the latter, I suspect I know at least the answer to the former