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Friday, August 27, 2010

Judges' orientations are irrelevant - everyone's got one.

By indiemcemopants

Judge Walker,  a supposed gay man, issued a ruling in favor of gay people. California newspapers decided to out Walker, repeatedly, through innuendo and rumors in order to, they claim, be fair. I'm not one who has a huge problem with outing people when they vote or rule against gay rights, but this seems strange to me. The claims of "relevancy" are not reality based in any way because the people claiming his orientation is relevant do not like the ruling. If they couldn't use his orientation to show their dislike of the ruling, it'd be something else. Showing "fairness" to bigots who aren't operating in truth doesn't foster a good discussion. 

As Rush Limbaugh said of President Obama, the bigots want Judge Walker to fail. Why do you think there's a sudden debate over firing pro-gay judges? It's gotten so intense that former Justice Sandra Day O'Connor has decided to discuss the subject in an upcoming panel. Their claims should be mocked and summarily dismissed, and this is why: they have not yet attacked the ruling itself. Where's their legal analysis which proves their ruling entirely incorrect? They did offer one point, that Baker v. Nelson should be controlling precedent. That is easily demolished, even by someone without a law degree:

So, in 1986, the Supreme Court decided Bowers v. Hardwick In that case they determined that there is no constitutional right to sodomy (i.e., same sex sexual intercourse can be criminalized.) Justice Stevens and others joined in a dissent by Justice Blackmun (fun fact: that dissent was written by Pam Karlan.) In 1996, the Supreme Court decided Romer v. Evans, in which they said that animus toward gay people and dislike of gay people is not a rational basis for laws against gays. They did not overrule Bowers in that case because doing so would eliminate one of the justifications for same sex marriage - that you can dislike gay people and effectively punish them by allowing criminalization of their behavior to continue to be constitutional.

In 2003, Lawrence v. Texas was decided at the Supreme Court. They overturned bans on sodomy, overruled Bowers, finally, seventeen years after it was decided, and blasted away another reason for denying same sex marriage. They said that morality is not a suitable rational basis to deprive rights to homosexuals.

In his dissent, as I wrote about before, Justice Antonin Scalia freaked out. He ranted and screamed and begged for a whole bunch of pages. He said that the Court keeps eliminating reasons that they've always held that marriage is between a man and a woman. He said that we've always made laws based on morality and that it's totally fine to ban sodomy based on morality. He said that gay people are politically powerful (translation: please, oh please god, don't let the Court apply a stricter standard of review to gay people) and he wondered aloud why our behavior can't be criminalized. He yelled at the other Justices for, basically, not distinguishing between gay people and couples in their decision, which was written by Justice Kennedy. The decision also noted a history of discrimination against gay people, but was pretty conservative on the history of that.

Of course, shortly after Lawrence was decided, conservatives started an "impeach Kennedy" movement that fizzled out quickly.

Then, just this past year, in Christian Legal Society v. Martinez, the Court makes clear that there is no distinction between gay people and homosexual acts. This is the final and most obvious thing blocking gays from being considered a suspect class entitled to a higher level of constitutional review. You simply have to be a class in the first place. Along with that, a history of discrimination needs to be present, and you need to show that you're not politically powerful.

The Supreme Court has itself obliterated any reason not to hear this marriage case.

And the legal precedents since Baker are only one reason it shouldn't be controlling. I won't get into the others here because that is sufficient. The truth is, I firmly believe that if they had arguments to make, they'd make them. Answering a public, humiliating defeat in court with "yeah well, you're gay!" is just juvenile. But they don't have a better response. 

I'm not even going to approach this issue as relevant in any way and I wish others would use this same tactic. The people who are against us are not up for a debate on the merits. They just want to lie and smear their way into a victory in the public sphere. The sad and funny thing is, given recent polling data, they're even failing there where, as David Boies noted, you don't have to bother with a legal argument. You can just say things out loud and it becomes a fact you won't have to prove. They have not proved the legal relevance of Walker's orientation, nor have they proved the legal arguments of their own case. Can we ignore them now?


  1. This could of course be applied to African American judges, Jewish judges, women judges, etc. nobody including WASP male judges, are without a personal background which they bring to the bench. I'm old enough to remember when driving down the road in the deep south you alternately saw signs saying See Rock City and signs saying Impeach Real Warren. This bullshit has been going on a long time.

  2. well this is a nice surprise! and I didn't even have to coax it out of indie! Thank you and well said!

  3. Richard: yup. It is just a smear to discredit people who make these decisions. It's not actually a valid legal argument. But then again, they haven't made one yet so why start now?

    Terry, no problem! I need to stay busy doing things I love. It is really helping me feel happier. If that means I spend my whole day writing, then so be it.