Scalia, Orgies, and European Law

Harper Jean Tobin

Contributing writer

A few weeks back US Supreme Court Justice Antonin Scalia made headlines – and even a blurb in this hallowed paper – with some puzzling remarks about orgies. The conservative justice was quoted as saying at a recent public appearance:

“I even take the position that sexual orgies eliminate social tensions and ought to be encouraged. “

This understandably led to a great deal of head-scratching. As it turns out, Scalia appears to have been misquoted; he actually said, “I accept for the sake of argument, for example, that sexual orgies eliminate social tension and ought to be encouraged. But it is blindingly clear that judges have no greater capacity than the rest of us to decide what is moral.” A significant distinction, to be sure. Even so, why talk about orgies – an example he has used in more than one recent lecture?

Scalia, it turns out, had in mind a 2000 ruling by the European Court of Human Rights (ECHR), the international body charged with defense of the European Convention on Human Rights. In that case (ADT v. UK, for those keeping score), a British citizen appealed his conviction for “gross indecency” after police raided a small soirée at his home and seized a videotape of himself and three other men engaging in oral sex and mutual masturbation.

The law under which “ADT” was charged was a vestige of Britain’s Sexual Offenses Act which originally banned all sexual acts between men. In 1967 this law was amended to remove the ban on most gay male sex. (All gay male sex remained outlawed in Northern Ireland, however, until an ECHR ruling in 1981.) But such “indecent” acts remained an offense so long as they were not committed “in private.” The law went on to say that acts were only considered as being “in private” if no more than two persons were present.

The appellant charged that his prosecution under this law violated Articles 8 and 14 of the European Convention, which protect private life and prohibit sex discrimination. (Britain had no comparable laws affecting heterosexual or lesbian sex.) The Court found a violation of Article 8 (private life), and held that it was therefore unnecessary to decide whether there was also a violation of Article 14 (discrimination).

The Court decided that, the language of the statute notwithstanding, the behavior proscribed was “purely private” since it involved “a restricted number of friends in circumstances in which it was most unlikely that other would become aware of what was going on.”

It was this interpretation of “private life” to include group sex in one’s own home that Scalia was mocking, apparently as an example of judicial activism. The Justice rhetorically asked how many people would have to be involved for an act to no longer be “private,” and quipped, “Presumably it is some number between five and the number of people required to fill the Coliseum.”

The problem is, the Prince of Plain Meaning has missed the plain meaning of Article 8. Dictionaries define “private” as, “belonging to or intended for a particular individual or group”; “not known publicly”; “secluded from the sight, presence, or intrusion of others”; and “not available for public use, control, or participation.” In other words, the meaning of the word “private” has considerably more to do with location and seclusion than with numbers of people involved. Sex between two, three, four or five people would be equally public in the Coliseum, and equally private in one’s own bedroom. Shouldn’t an advocate of strict constructionism favor such an interpretation?

To be fair, Scalia probably has in mind another synonym for private: intimate. One can easily claim that group sex is less intimate than one-on-one sex. This may often be true as a general statement about subjective emotional experience, but it is nevertheless a difference of degree and not kind. When carried out in an otherwise private context, consensual sexual behavior of whatever sort is in some sense intimate behavior.

All that said, the European Court of Human Rights is an irresistible target of scorn for a jurist like Scalia. It is a cultural conservative’s worst nightmare: an international judicial body ready and willing to strike down domestic morals legislation. Over the last generation, the ECHR has handed down groundbreaking rulings against sodomy laws; against a higher age of consent for gay sex; mandating an end to bans of gay, lesbian and bisexual people from military service; and against refusing child custody to gay parents. It has ruled that failing to legally recognize transsexual citizens’ gender transitions is a breach of Article 8 as well as the right to marry under Article 12. Most recently, it ruled that an Austrian man who had lived in his male partner’s flat for five years could not be evicted after his partner’s death because he was a “life companion” under Austria’s Rent Act.

Interestingly, however, the court has also ruled that it is okay to ban gay men from adopting children, as well as to ban consensual sadomasochistic behavior in the name of “morals and health.” Take heart, Justice Scalia – maybe there’s hope for those crazy Europeans after all.

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