First, please point me to the bit in Scalia’s jurisprudence that actually says that sodomy laws should be passed and enforced. There is a big difference between saying a law is within the power of Congress and saying that a law is a good idea.

Secondly, do you honestly hold that it is appropriate for anyone to do to you what a public prosecutor would be authorized to do to you? I can’t actually believe you’d uphold that standard of behavior for your own dinner guests.

Even if one supposes that Scalia does think that sodomy laws are a good idea, in order for you to be put in front of a court, you’d have to get enough proof for a prosecutor to convince a grand jury, and if you didn’t, you’d face ethical and possibly criminal penalties for bringing a frivolous charge. So, frankly, if you’re willing to see Mr. Berndt face such penalties for his behavior, then your analogy stands, but otherwise it’s just excusing boorish behavior.