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Gay Justice?

May 08, 2009 9:23 AM

Former Stanford Law School dean Kathleen Sullivan is, according to the National Law Journal, one of the 100 most influential lawyers in America. She's a nationally prominent scholar and teacher of constitutional law, and author of the nation’s leading casebook in constitutional law.

Stanford Law School professor Pamela Karlan clerked for former Supreme Court Justice Harry Blackmun, is founding director of Stanford's Supreme Court Litigation Clinic, and is a leading expert on voting and the political process.

Sullivan and Karlan are both frequently mentioned as possible Supreme Court nominees for President Obama.

Both women also happen to be openly lesbian.

Supreme Court vacancies can serve as a barometer for society. The first Catholic Supreme Court Justice, Roger B. Taney, was appointed in 1836. The first Jewish Justice, Louis Brandeis, was appointed in 1916. The first African-American Justice, Thurgood Marshall, was appointed in 1967. The first woman, Sandra Day O'Connor, in 1981.

Many Hispanic groups are pushing for a Hispanic -- such as Judge Sonia Sotomayor -- to be named.

Similarly, gay and lesbian groups are pushing for an openly gay or lesbian nominee.

Please note the key word: "openly." President Nixon's ill-fated 1970 Supreme Court nominee Judge G. Harrold Carswell -- rejected by the Senate after it turned out he had once advocated "white supremacy" -- was in 1976 arrested Tallahassee after making an "unnatural and lascivious" advance towards an undercover police officer whom he met in a Tallahassee mall men's room.

(An interesting side debate: should the late Benjamin Cardozo, a Justice of Portuguese descent -- count as the first Hispanic Justice? The Census Bureau does not classify Portuguese-Americans as "Hispanic," though historically the term was a reference to the Iberian Peninsula, which included Portugal. Anyway.)

Peter Sprigg, a senior fellow at the conservative Family Research Council, says that "the real issue would not be the person's private life but the issue would be would they be imposing their personal ideology upon the court. In this case would they be imposing a pro homosexual ideology, a pro-same sex marriage ideology."

Sullivan, for instance, joined a friend of the court brief arguing that same sex marriage should be legal even if the "equal protection" clause "would not always have been interpreted by the courts to forbid discrimination against gay people." Not allowing same sex marriage is a violation of "both due process and equal protection; the former because the right to marry is a form of liberty and the latter because the restriction treats lesbians and gay men differently from straight individuals."

That she believes that because she's lesbian, and not because she believes the refusal to allow same sex marriage constitutes unconstitutional discrimination, is another matter.

Either way, discussion about a Justice Sullivan or a Justice Karlan comes at a time when the Obama administration is hearing some impatience voiced by gay and lesbian activists on other issues.

"I think there is some disappointment in the gay community that (President Obama) hasn't in this initial period spoken more directly and more forcefully about some of the issues he spoke about on the campaign," Richard Socarides, a former adviser to President Bill Clinton on gay and lesbian issues, told us for Good Morning America today. "Specifically the 'Don't ask/Don't tell' policy in the military."

-- jpt

May 8, 2009 | Permalink | Share | User Comments (50)

User Comments

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"That she believes that (gay's should have the right to marry) because she's lesbian, and not because she believes the refusal to allow same sex marriage constitutes unconstitutional discrimination, is another matter."
What the hell is this? By this logic, you're saying it's a wrong for an African American to believe in equality because they are an African American even though they may agree that the courts of the past did not intend "equal rights" to include slaves or African Americans?
Clearly the founding fathers intended for our government to be adaptive, and they just as clearly did not intend the abolishment of slavery, equal rights for women and people of other races, and yet here we stand in a country where ALL men (mankind) are created equal.
Clearly homosexuality was not something our founding fathers ever intended to deal with, and whether homosexuals agree with that or not, that doesn't mean they forfeit their right to ask to be recognized as American Citizens equal to you and every other person in this country, with all the same rights and freedoms.

Posted by: Caleb | May 12, 2009 1:05:06 PM

Polygamy? Sure. Polyandry? Most certainly. Polyamory? How can the Courts deny citizens this? On what grounds? Religion? Surely not. After the Stonewall Riots, the modern movement for homosexual rights took off with an emphasis on homosexual men. Then Lesbian rights became a focus, then, in recent years, an outpouring of empathy and support for transgendered persons. What happened to the "B" in LGBT? Not quite ready for primetime is the "B". Why? Because Bs are attracted to both sexes and hence polyamorism will be battering the craven courts for approval.

Posted by: Raymond | May 9, 2009 10:58:55 AM

How about a polygamist too?

Posted by: Justin | May 9, 2009 12:45:19 AM

We live at a moment in time when what it means to be human in the sense of being human as has been held for centuries is undergoing re-definition. If the new definition, allowing universal acceptance of homosexual behavior with all rights and priveledges to homosexual persons is codified in law, a revolution will have been accomplished and not one of the traditional sacrosanct beliefs held prior to this re-definition will remain unchallenged. We will have abandoned the Judaeo-Christian foundations of Western Civilization. Will that Civilization survive the seismic shift?

Posted by: Raymond | May 8, 2009 8:34:38 PM

paul | May 8, 2009 2:10:01 PM wrote "Why go to all the trouble of granting gay citizens their equal rights when you can instead placate them with tokenism?" Paul, as a "gay citizen" i would rather have equal rights than a judge on the supreme court. but if you are saying that Obama's appointing a gay nominee and not coming through on meaningful legislation and executive actions that would indeed be tokenism. and i would be pi**ed off. i don't care who's on the supreme court i just want to not be fired for who i am. so i think i agree with you. how many other gay people will i don't know.

at any rate gay people are in the political market and will vote for the party that comes through on its word.

my guess is that if you could get a republican nominee that would add gays and lesbians to the civil rights act the gay vote will come through. i think the issue of civil rights is so much more important to most gays than getting married (certainly that is the case for gays in the red states).


Posted by: Paul Wall | May 8, 2009 5:57:33 PM

Fascist Hyena---"heterosexual males and females are kept separate from one another in may respects to avoid the kinds of sexual tensions that can affect combat readiness." sounds like the problem then is with heterosexual males and heterosexual females. gays are already serving, as they always have with full control of their sexual tensions. absolutely not a rational arguement for denying gays the right to serve. they are already serving, Fascist Hyena! they are already controlling their sexual tensions. what's new?

Posted by: Paul Wall | May 8, 2009 5:23:54 PM

Posted by: J House | May 8, 2009 4:49:11 PM "israel didn't do so hot in its last 2 conflicts in Lebanon. Are you saying it is because they have a lot of gay soldiers?" no i am not saying that, J House. are you?

Posted by: Paul Wall | May 8, 2009 5:12:18 PM

paul wall, israel didn't do so hot in its last 2 conflicts in Lebanon. Are you saying it is because they have a lot of gay soldiers?

Posted by: J House | May 8, 2009 4:49:11 PM

surely we've had a few gay justices already...what matters is whether they legislate from the bench, or not?

Posted by: J House | May 8, 2009 4:45:55 PM

I expect that Obama will soon arrive at one of his photo-ops, or the Jay Leno show dressed as a, Spandex clad, Drag Queen in, 6-inch black leather, spike heels to show his solidarity with the Gay & Lesbian community who got him elected.

Question: How will Americana react to a Gay / Lesbian Supreme Court Justice nomination?

Posted by: Akdogman | May 8, 2009 4:30:29 PM

"we do know that children raised by heterosexual parents are often subject to neglect, physical/emotional/sexual abuse, abandonment, etc. hardly an arguement to abandon heterosexual parenting."

Of course we know that, and of course it's not an argument for abandoning heterosexual marriage. We know that, notwithstanding many instances of abuse, on the whole the institution has served humanity and Western civilzation very admirably for millenia. Perhaps homosexual marriage would do the same. My point is that we do not know, and it is very hard to dispute that point.

I have no problem whatsoever with same-sex partners cohabiting or marrying. I do have concern for the unknown, but undeniable, third-party effects on children raised by such couples.

Posted by: Fascist Hyena | May 8, 2009 2:13:26 PM

Why go to all the trouble of granting gay citizens their equal rights when you can instead placate them with tokenism?

Posted by: paul | May 8, 2009 2:10:01 PM

"why should gays not have the right to serve openly when their heterosexual counterparts do?"

One reason is that heterosexual males and females are kept separate from one another in may respects to avoid the kinds of sexual tensions that can affect combat readiness. That can't be done with homosexuals.

Posted by: Fascist Hyena | May 8, 2009 2:09:42 PM

there is no justification for discrimination, none. soldiers can serve as long as they keep secret their orientation. we should have one or the other: a) both homosexual and heterosexual soldiers must keep their sexual orientation secret or b) allow both to serve openly. why should gays not have the right to serve openly when their heterosexual counterparts do? this is america and this bigotry and discrimination is intolerable and embarassing as to our standing in the world. Israel does just fine with openly gay soldiers (as do most European countries).

Posted by: Paul Wall | May 8, 2009 1:55:23 PM

Fascist Hyena | May 8, 2009 1:36:52 PM
"I don't think we know enough yet about the development of children raised in households with same-sex parents." we do know that children raised by heterosexual parents are often subject to neglect, physical/emotional/sexual abuse, abandonment, etc. hardly an arguement to abandon heterosexual parenting. we can wait for long-term studies and have same-sex parenting at the same time (they are not mutually exclusive).

Posted by: Paul Wall | May 8, 2009 1:50:10 PM

" i don't think that entitles you to disenfranchise american servicemen and servicewomen from the military based on your (prejudiced) views on homosexuality."

There simply is no such thing as enfranchisement into the armed services. There is absolutely no such thing as a right to serve in them.

"there have always been homosexuals in the military and whether you like it or not (or knew it or not) you served with them."

True. But they were prohibited from disclosing or demonstrating their sexual preference, and as long as they continue to do so they are permitted to serve.

Posted by: Fascist Hyena | May 8, 2009 1:40:28 PM

"The consequences and benefits of a two person legal union is very well known and established as beneficial to society..."

I don't think we know enough yet about the development of children raised in households with same-sex parents.

Posted by: Fascist Hyena | May 8, 2009 1:36:52 PM

American Infidel | May 8, 2009 11:46:35 AM, while i respect your service to our nation i don't think that entitles you to disenfranchise american servicemen and servicewomen from the military based on your (prejudiced) views on homosexuality. there have always been homosexuals in the military and whether you like it or not (or knew it or not) you served with them. gays enlist and die for their nation, just as straight soldiers do. and "Officers in the military are asked to resign. They are not fired!" has to be one of the most disingenuous thinks i have read today. gay officers are just asked to resign? what if they chose not to resign? they are dishonorably discharged? or do they just keep on serving after being asked to resign and ignore the letter. they are basically forced to resign correct? and what about enlisted soldiers?

Posted by: Paul Wall | May 8, 2009 1:07:45 PM

Why is a person’s fitness to serve based on one issue? If that’s the case there is no one that anyone could accept. Nobody agrees with anybody 100% on every issue. I want a court that will rule based on the Constitution.

Posted by: Oonogil | May 8, 2009 12:56:14 PM

Kary:"Why is this all about the gays and not about the family unit. Marriage and the family unit has been upheld in societies because it is a stabilizing factor in communities."
Monogamous and committed same-sex family units are also a stabilizing factor in communities. Same-sex couples take care of each other during sicknesses, unemployment, and other times of trial reducing the strain on society and charity's safety nets.

Marriage is not just about children, as anyone who knows an infertile couple or has seen a joyous pair of 50 year old newlyweds can attest.

"how can we refuse polygamy or other groups that want the economic & social privileges afforded by traditional marriage."
Anything other than a pairing of two people opens up a host of unresolved and tricky precedence issues under law. The consequences and benefits of a two person legal union is very well known and established as beneficial to society, the same is not true for polygamy. Polygamy has it's own raft of completely different legal and social issues that it must address.

Posted by: jhw539 | May 8, 2009 12:52:26 PM

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