Challenging a Justice

In the span of less than a day, Duncan Hosie ’16 — a San Francisco native interested in constitutional law — has attained international recognition for questioning Supreme Court Justice Antonin Scalia about his comparison of laws banning homosexuality to laws banning bestiality and murder.

Hosie, who asked the question to Scalia at a campus lecture on Monday night, said he was offended by some of the justice’s written opinions on cases related to gay rights. In the process, he revealed his homosexuality to the 800 people in attendance and the perhaps millions who read coverage in the Associated Press or London Daily Mail or saw his appearance on MSNBC Tuesday night. Hosie had come out to his family just a little over one month ago, over fall break.

Hosie’s question came less than a week after the Supreme Court announced it would hear two cases regarding the legality of same-sex marriage, one regarding the Defense of Marriage Act and the other regarding California’s Proposition 8.

Hosie began his question by quoting sections of Scalia’s opinions in Romer v. Evans and Lawrence v. Texas, in which Scalia made comparisons Hosie said were offensive.

“Justice Scalia, I’m gay, and as somebody who is gay I find these comparisons extraordinarily offensive,” he said. “I think there is a fundamental difference between arguing the constitution does not protect gay sex, which is a defensible and legitimate legal position I disagree with, and comparing gays to people who commit murder or engage in bestiality. Do you have any regret or shame for drawing these comparisons you did in your dissents?”

Hosie said he was hoping Scalia might walk back his statements, though he knew it was unlikely.

“If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?” Scalia responded, explaining the opinions he expressed in his dissents. “It’s a reduction to the absurd ... I don’t think it’s necessary, but I think it’s effective.”

Scalia then added dryly that he was surprised he hadn’t been able to persuade Hosie of his opinion.

Hosie had been talking about Scalia’s visit for the past several months and was vocal in encouraging others to attend, according to friend and classmate Eve Barnett ’16.

While reading the question, Hosie remembered doubting himself, wondering whether the decision to challenge Scalia had been a mistake.

Hosie said he had gone through a few drafts of the question and read about 50 Scalia opinions in order to decide what he wanted to say. Hosie told a couple of his friends he planned to ask a question, and even showed a few of them a draft, but he did not discuss his plan widely for fear of talking himself out of it.

“It was hard for me to ask that question, particularly given that accepting the fact that I’m gay hasn’t been easy,” he said in an interview with The Daily Princetonian.

Get the best of the ‘Prince’ delivered straight to your inbox. Subscribe now »

He said he struggled with his orientation before coming out to his family, and he said reading Scalia’s negative comparisons while preparing his question made his struggle more difficult.

He had not originally intended to question Scalia’s opinion on homosexuality but decided to ask it in the end because he found Scalia’s language to be “so offensive as a whole.”

Scalia declined to discuss issues related to active cases or potential future cases while answering questions but answered Hosie’s question since it only referred to the decisions he had previously handed down while on the Supreme Court.

Though Hosie’s friend Michael Chang ’16 believes Scalia gave the most “politically correct” answer he could have given, Barnett found the response to be “very, very offensive.”

“I was surprised by how personally offended I was by Scalia and how it stuck with me,” Barnett added, even though she said she enjoyed the lecture.

Hosie said he did not expect to change how Scalia would ultimately vote in either of the upcoming decisions, but he still thought it was important to have Scalia hear his point of view.

“I think that denying gay marriage is a violation of the Equal Protection Clause of the 14th Amendment,” Hosie said. “I think the Constitution should be interpreted through a framework in which we look at the abstract moral principles that the founders laid out, and I disagree with Scalia in the sense of what it means to be faithful to the text.”

Hosie’s freshman seminar, FRS 139: The Supreme Court and Constitutional Democracy, focuses on issues regarding constitutional interpretation. Hosie said he decided to ask his question in part because he has spent a substantial amount of time studying the Constitution and thinking about these constitutional legal issues through the class, which is taught by University Provost Christopher Eisgruber ’83, who clerked for former justice John Paul Stevens.

“The objective of the class is to enable students to engage with the legal and constitutional arguments on the same level as do Supreme Court justices and other judges, and also to understand the relationship of the cases to questions about democracy and the role of judges,” Eisgruber said. “It’s so rare for a student actually to have the chance to engage directly with them.”

Students in the seminar said Hosie is an active participant in class discussions, and Eisgruber said he is pleased with how Hosie has engaged with various constitutional questions.

“I think Duncan is correct to be upset by the rhetoric that Justice Scalia used in those passages,” Eisgruber said. “It would be possible for Justice Scalia to make the point that he wanted to make without drawing those offensive comparisons. I wish that Justice Scalia had admitted that.”

Carlene Partow, a freshman at Johns Hopkins University and a close friend of Hosie from San Francisco, said she hopes the extensive coverage of Hosie’s question and Scalia’s response will send a strong message to the country.

“It was really important for people to see how derogatory Justice Scalia can be,” Partow said. “There’s something disrespectful about the way in which Justice Scalia addresses the gay community, and I don’t think it’s right, especially for someone who has such a high stature in this country.”

Hosie added that he hopes the media exposure will “be a lesson to [Scalia] that his words really have power and that he should use them cautiously and really think about them in the future.”

His friends said they were not surprised at Hosie’s determination to ask the question, or that Scalia was prompted to respond.

“It’s not out of character for [Hosie] to be very direct and express his opinion,” Sydney Becker ’16 said.

Hosie is a member of the debate team and an undergraduate fellow in the Program in Law and Public Affairs. He plans to go to law school and potentially study constitutional law, which he said he has come to love during his freshman seminar.

Numerous online commenters — the Huffington Post’s article received more than 15,000 comments — praised Hosie’s confidence when asking the question, but Hosie did not necessarily think the compliments were warranted.

“I don’t think it was particularly brave,” he said. “Soldiers in Afghanistan are brave. Asking a question on the Constitution isn’t really that brave.”

Holland Reynolds, a freshman at Colgate University and a good friend of Hosie, described Hosie as “never willing to conform to what society believes in and how his actions will be viewed,” citing his evolving political views as an example. She noted that he used to be fairly liberal while in middle school and high school in San Francisco but is more conservative now.

Hosie described his political philosophy as “pretty moderate.” He said he is more conservative when it comes to fiscal issues but more liberal on social issues, including gay rights.

“Gay people are here; we aren’t going away,” he said. “It’s really unacceptable no matter who you are — whether you are a random person or a Supreme Court justice — to treat us in a way that I think is unfortunate.”