“One gay student asked [Supreme Court Justice Scalia] whether government had any business enacting and enforcing laws against consensual sodomy. Following Scalia’s answer [that it did have business there], 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.”
It’s a rude question, but no inappropriate. If the public has an interest in regulating sexual activity, the public has to have information. Bear in mind that oral sex is usually classified as sodomy. If Justice Scalia does not feel that the question is worth answering on privacy grounds, that means he is demanding a level of privacy he does not accord other citizens.
If his concern is that he would incriminate himself, then he could plead the Fifth. If he doesn’t want to weigh in on an issue he’ll face again in Court, he can say that his personal behavior shouldn’t influence his judicial rulings. But the question deserves an answer, because of the details of Scalia’s ruling in Lawrence v. Texas.
In particular, Scalia repeatedly argues that restrictions on sodomy may be “constraints on liberty,” but not a restraint on a “fundamental right” or “fundamental liberty interest.” He compares regulation of sexual behavior between consenting adults to regulation of drugs, prostitution, or the work week. Would he assert that a question about his working hours is “unworthy of an answer”? Would a question about his use of drugs be brushed aside? What if he was asked about his or his wife’s participation in prostitution? I imagine that after an angry retort about the propriety of asking the question, he’d flatly deny it.
But when asked about his private sexual activity, he felt that the question was inappropriate, like a question about heroin use, but he didn’t feel like it even deserved an answer. That’s significant. The issue in Lawrence, as in Roe and Griswold, is whether one can describe a broad right to privacy, and exactly where that right is delimited. Griswold held that the use of contraceptives by married couples, and “marital privacy” in general, is “within the penumbra of specific guarantees of the Bill of Rights.” It places particular emphasis on the Third Amendment’s protection of the home, as well as the guarantees of the Third Amendment, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
In particular, the Court asks in Griswold:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Lawrence extended that line from marriage to consensual relationship between adults. Prostitution has a compulsory aspect, and it remains easy to regulate as commerce.
Scalia disputes that claim, a claim which also underpins the right to medical and sexual privacy in Roe. Fine. That means he cannot, in a strict sense, demand that his private sexual behavior be considered any more private than his decision not to hire a prostitute, and not to buy heroin.