Just in from the Old News Dept: Justice Scalia says No Constitutional Rights for Women & Gays

Supreme Court Justice Antonin Scalia

Everything old is news again.

The interwebs are again abuzz with the rehashing of a story that first made news back in September, when ultraconservative Supreme Court Justice Antonin Scalia said in an interview, "In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?"

Scalia went on to say that if congress wants to protect the rights of specific groups of people, it should pass laws to do so. I remember reading about this back in September, in an article on the San Francisco Chronicle's SFGate site, when Scalia said in a speech to a group of law students that the 14th amendment does not apply to homosexuals. Word of the homophobic slam spread like wildfire through the queer blogosphere, outraging the likes of Grande Dame Pam Spaulding and Joe "What, another award?" Jervis and others.

In November, Scalia addressed another group of law students at the University of Richmond and reiterated his position on the 14th Amendment saying:

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.” “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.

Right on cue, the queer universe cam to a halt and was appropriately appalled. 

Justice Scalia is well known for his strict reading of the Constitution and isn't sympathetic to those who try to find ways of applying it to modern life. This is not news. It was not news when Ronald Reagan appointed him in 25 years ago. His rulings have reflected his personal bias ever since and should surprise no one. Never mind that the Supreme Court found that anti-sodomy laws are unconstitutional (Lawrence vs. Texas, in which Scalia voted with the minority) and that women have the right to choose whether or not they carry a pregnancy to term (Roe vs. Wade). Scalia's views are increasingly out of step with mainstream America on these and many other Culture War topics, but he's made is views very clear.

Can we stop the mock outrage already?

I'm not saying we shouldn't discuss Scalia or his views, we should. We should be talking about how bigots don't belong on the Supreme Court. It is very possible that president Obama may have to replace another justice during his term, especially if he's re-elected. Another angle on Scalia might be how his views will effect the cases against Prop 8, DOMA and the still-pending DADT challenge being fought by the Log Cabin Republicans. These are valid discussions, especially when we've run out the clock on any new legislative victories, thanks to foot-dragging by our so-called allies on Capital Hill and the apologists at HRC.

Someone once said, "the price of liberty is eternal vigilance". I get it. Scalia bad. We should be paying attention to the homophobes who got appointed to the court when we weren't paying attention. But that ship sailed 25 years ago. Too little, too late.

I know we're in a slow news cycle, but can we please stop acting as if this old news is new news? And can we please, please, PLEASE stop treating bloggers like sacred prophets, especially when they go overboard with their over reactions? I'm just a guy with a laptop and an opinion and so are they. Feel free to disagree and call me out if you think I'm wrong and do the same to the rest of them as well.

There is more to blogging than just pointing out how bad everything sucks. How about bringing a new perspective to an old discussion or asking different questions?

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The Phelps Klan Goes to Washington

Image via WikipediaThe U.S. Supreme Court heard oral arguments on Wednesday in the case of Snyder vs. Phelps. The case stems from a 2006 protest staged by members of the Westboro Baptist Church at the funeral of Marine Lance Corporal Matt Snyder, who was killed in Iraq. The case has made for some strange bedfellows.

The New York Times reports:

The justices were interested in the lawyers’ views about where his or her argument got fuzzy and made their questions more difficult by asking the lawyers to grapple each other’s contentions. Hovering over the oral arguments were briefs from friends of the court.

Walter Dellinger, a former acting solicitor general, sided with the Snyders for Senator Harry Reid, the majority leader, and Senator Mitch McConnell, the minority leader, and many others in Congress. They argue that Congress and 46 states have passed laws limiting protests at funerals and, implicitly, that the support for the family was a heartfelt exception to the breakdown in Washington. Nadine Strossen, a former leader of the American Civil Liberties Union, pointed out the chilling consequences for protest-filled university campuses if the church’s position is not upheld.

One friend of the court brief called the protesters’ message “uncommonly contemptible.” True, but it is in the interest of the nation that strong language about large issues be protected, even when it is hard to do so.

Phelps and his congregation, made up almost entirely of members of his extended family, support themselves and their church by suing and winning cases like this.

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Breaking: Prop 8 Ruled Unconstitutional! (Video)

Image by Getty Images via @daylife

(CNN) -- A federal judge in California has knocked down the state's voter-approved ban on same-sex marriage, ruling Wednesday that the state's controversial Proposition 8 violates the U.S. Constitution.

Chief U.S. District Judge Vaughn Walker found in his ruling that the ban violated the Constitution's equal protection clause under the 14th Amendment.

The closely watched case came some two years after Californians voted to pass Proposition 8, which defined marriage as a union between a man and a woman.

Neither opponents nor supporters of same-sex marriage said before the ruling that it would likely be the last. Both sides said the decision will be appealed and eventually wind up in the U.S. Supreme Court.

Judge Vaughn Walker's ruling says, in part, "Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples."


"Race restrictions on marital partners were once common in most states but are now seen as archaic, shameful or even bizarre. When the Supreme Court invalidated race restrictions in Loving, the definition of the right to marry did not change. Instead, the Court recognized that race restrictions, despite their historical prevalence, stood in stark contrast to the concepts of liberty and choice inherent in the right to marry."

California Governor Arnold Schwarzenegger released this statement: “Today's decision is by no means California's first milestone, nor our last, on America's road to equality and freedom for all people.”

California Attorney General Jerry Brown says via FaceBook: "A great day for all Californians. Justice Walker shares my belief that Prop 8 is unconstitutional."

Not so fast guys and gals! Don't go shopping for that perfect Vera Wang gown just yet. The Prop 8 proponents have been granted a stay that was filed last night when it became clear their side would lose. The ruling will not go into effect until possibly as late as October, so they can prepare an appeal. The reasoning is that they could be another window where gay and lesbian couples could get married only to have to marriages ruled invalid if the U.S. Supreme Court upholds Prop 8.

Stay tuned, folks. This ain't over by a longshot.

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Elena Kagan: DADT is "Unwise and Unjust"

Supreme Court nominee Elena Kagan faced nine hours of questioning on Tuesday as she was hammered by members of the Senate Judiciary Committee who are trying to get a sense of how Kagan might vote on some of the controversial issues she's likely to face as a justice on the nation's highest court.

The current Solicitor General and former dean of the Harvard University School of Law tried to stay neutral but defended her past statements and actions with regard to Don't Ask, Don't Tell and the Army ROTC's presence on the Harvard campus.

In response to a question from Jeff Sessions, the ranking Republican on the Senate Judiciary Commission about her past statements against DADT, “I have repeatedly said that the ‘don’t ask, don’t tell’ policy is unwise and unjust — I believed it then and I believe it now.”

The Advocate's Kerry Elveld reports:

Kagan stated several times that she was trying to balance two competing interests: compliance with the Solomon Amendment, a 1996 law that empowers the secretary of Defense to deny federal funding to colleges and universities that prohibit or prevent ROTC or military recruitment on campus; and an adherence to the school’s antidiscrimination policy, which said that no employer could use the office of career services if that employer would not sign a nondiscrimination pledge. The military could not sign the pledge based on its discriminatory DADT policy.

Although military recruiters were not allowed to use the law school’s office of career services during part of Kagan’s deanship, they were allowed to recruit on campus through the office of veteran services. But much of the disagreement between Kagan and Sessions centered on the events following a 2004 decision by the U.S. court of appeals for the third circuit that found the Solomon Amendment to be unconstitutional — a ruling that was subsequently overturned by a unanimous Supreme Court decision in 2006.

Sessions alleged that Kagan had purposely continued to block recruiter access to the school’s office of career services even after the Department of Defense explicitly requested full access and said it would appeal the 2004 decision.

But Kagan contended that she believed the school’s policy was “in compliance” with the Solomon Amendment and “for many, many years, the Department of Defense had agreed with us.”

“When DOD came to us and said it thought that that was insufficient,” Kagan said, “we went through a discussion over a couple of months and we made the decision to do exactly what DOD wanted.”

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Supreme Court: Christian Student Group Must Admit Gays, Cuccinelli Disagrees

In a landmark ruling, the Supreme Court ruled Monday that a christian student group receiving funding from a university cannot violate that university's non-discrimination policy and must allow gay students to join. The court ruled that Hastings College's policy does extend to student groups and does not violate the equal protection clause of the 14th amendment to the U.S. Constitution.

The Huffington Post reports:

WASHINGTON — An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won't let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group's "discriminatory practices."

The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California's Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards "unrepentant participation in or advocacy of a sexually immoral lifestyle" as being inconsistent with that faith.

The court on a 5-4 judgment upheld the lower court rulings saying the Christian group's First Amendment rights of association, free speech and free exercise were not violated by the college's nondiscrimination policy.

"In requiring CLS – in common with all other student organizations – to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations," said Justice Ruth Bader Ginsburg, who wrote the 5-4 majority opinion for the court's liberals and moderate Anthony Kennedy. "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

Naturally, Virginia's douchebag of an attorney general has weighed on the subject, saying that the 14th amendment does not protect the gays.

Last March Cooch sent a letter to Virginia's state colleges and universities stating that employment non-discrimination policies that included sexual orientation as a protected status where not legal in the commonwealth and must be stricken. The move caused a major uproar on campuses throughout the Old Dominion, with students and faculty tatking to the streets of Richmond in protest.

Not being one to miss an opportunity to show his ass, Cooch also believes he knows the constitution better that the Supreme Court and said so to a group of high school students. Think Progress' The Wonk Room reports:

On Friday, Cuccinelli appeared at Boys State, where a high-school student asked him, “How is that not a violation of the equal protection clause of the 14th Amendment?” Cuccinelli responded by suggesting that the amendment was not designed to protect gay people:

 “State universities are not free to create any specially protected classes other than those dictated by the General Assembly,” Cuccinelli said. “Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment,” he said.

“There are judges who think these things ‘evolve,’ is the word they like to use,” Cuccinelli said, but the correct approach to making such a change would be a constitutional amendment, he said.

 I really wish Cooch and Gov. McDonnell would share notes on these issues. Earlier this year when McDonnell came under fire for breaking with his predecessors and leaving out sexual orientation as executive order on non-discrimination, "Taliban Bob" said it was unnecessary because the 14th Amendment provided all the protection we need.

This is why we need ENDA!

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Mainstream Media (and some gay bloggers) Take the Low Road on Elena Kagan Lesbian Rumors

I was checking my news feeds tonight and found 4 different mainstream news outlets and a prominent gay blog all posting the same Associated Press story: "Should we ask if Supreme Court nominee is gay?"  A further search on Google showed at least 2 dozen more sites carrying the same story.

 

The mainstream media (MSM) gives almost no coverage to ENDA, DADT or DOMA, but a butch looking, single woman gets nominated to be a Supreme Court justice and this becomes their token LGBT story. They'll all qualify their stories by saying "if doesn't matter if the nominee is gay, but..." What a bunch of weasels.

 

It all started last week when the Wall Street Journal did a story about Elena Kagan, the president's nominee to replace retiring Justice John Paul Stevens, along with a very large photograph of Ms. Kagan playing softball, as if to imply that she must be a lesbian. The folks at WSJ insist this was not their intent, but the damage is done. 

 

For the last week, reporters and pundits have been demanding -- yes that's right demanding -- that Kagan confess her homosexuality. Brian Mann of North Country Public Radio wrote on his blog last week, "I want to officially join the phalanx of pundits on the right, the left and the middle who are demanding that Elena Kagan explain her private life to me in detail."

Has Senator Joseph McCarthy suddenly returned from the grave? 

 

Where are our national advocates and activists? GLAAD was glad to cover the announcement of Kagan's nomination, but where is our media watch dog when she's getting raked over the coals by the very media they monitor because of her perceived sexual orientation, based on nothing more than a stereotype of how feminine or masculine a woman should or shouldn't be? 

 

Hey, GLAAD! Isn't that your fucking job? 

 

It's bad enough when the MSM takes the low road, but 365gay.com should know better. Even they took the lazy way out and printed the entire AP story verbatim with no original slant or commentary. Personally, I'm offended when major news outlets do stories like this that exploit the LGBT community for sensationalism but fail to do any serious reporting on our issues unless we chain ourselves to something. But for a respected LGBT blog, like 365gay.com, to mindlessly reprint this trash without any original input or commentary that in any way condemns the story, I am thoroughly disgusted. They have even gone so far as to post a poll asking if Kagan's sexuality is relevant. They may say they're covering the Kagan story from an LGBT perspective, but they're being just as exploitative as the low-lifes at Fox News. 

 

Let the haters take the low road. We expect more from our own.

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Friends Deny Supreme Court Nominee Kagan is Gay

What's a frumpy, professional woman with no fashion sense to do when accusations of homosexuality get some traction in the main stream media? President Obama's nominee to the Supreme Court, Elena Kagan has decided to let her friends do the talking.

Politico.com has been reporting on the lesbian rumors that first started circulating when Kagan's name appeared on the short list of possible nominees to replace retiring justice John Paul Stevens. Politico's Ben Smith reports:

“I’ve known her for most of her adult life and I know she’s straight,” said Sarah Walzer, Kagan’s roommate in law school and a close friend since then. “She dated men when we were in law school, we talked about men — who in our class was cute, who she would like to date, all of those things. She definitely dated when she was in D.C. after law school, when she was in Chicago – and she just didn’t find the right person.”

These are the same rumors that surface any time a woman - especially a single woman - in politics achieves a higher level of power. It threatens to disrupt the male-dominated status quo. Hillary Clinton and former U.S. Attorney General Janet Reno had to deal with the same issue.

It's bad enough when the blogs and on-line news fan the flames of gossip and innuendo, but this week the Wall Street Journal weighed in on the non-issue in its cover story and the accompanying photo of a younger Kagan playing softball.

Personally, I don't care if she's gay or straight. What concerns me and I think should concern all of us, is Kagan's lack of judicial experience. She's never even judged a pie eating (no pun intended) contest. There is no history of rulings to look at to get an idea of how she might rule on some of the issues she's likely to face on the the court, such as the constitutional challenge to California's Prop 8 or the just launched challenge to The Defense of Marriage Act.

But the most important question for me is, "What's up with the Marge Simpson beads?"

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Virginia Continues Arrests Under Unconsitutional Anti-Sodomy Laws, Cooch says it's okay

Norfolk, Virginia attorney, Michael Hamar, a regular contributor to the Bilerico Project, wrote yesterday that Virginia's Attorney General, Ken Cuccinelli continues to press his anti-LGBT agenda and apparently his office has no respect for the U.S. Supreme Court or the U.S. Constitution.

It seems that Cooch thinks it's still perfectly legal in the commonwealth to arrest law-abiding citizens on sodomy charges, because Virginia's anti-sodomy laws are still on the books, despite being ruled unconstitutional by the U.S. Supreme Court in the 2003 decision in the landmark Lawrence vs. Texas case. One of Hamar's readers from Georgia, commented on an earlier article saying he called Cuccinelli's office to ask about reports that in some Virginia localities, men are still being arrested for sodomy:

I telephoned both the Office of the Governor of Virginia and the Office of the Attorney General of Virginia concerning the very public stance they've taken concerning non-heterosexually oriented persons in their state.

I also took this chance to complain to the Attorney General concerning a practice of some of Virginia's local law-enforcement jurisdictions, where they continue to make arrests for violations of Virginia's sodomy laws, imprisoning men for violations of those laws, then having the judges dismiss those charges when the men are brought to trial - not at arraignment, but at actual trial. I reminded the Virginia AG's Office of Lawrence v. Texas, and how the Supreme Court had issued a decision which negated all sodomy laws, nationwide.

The AG's Office informed me Virginia has not repealed their sodomy laws, so that arrest under those laws was still justified, and the process in place was correct: local jurisdictions follow the laws on the books, a trial court dismisses those charges to conform with federal court decisions; that was "how the system works."

Then the kicker: "Y'all don't even live here, so it really doesn't affect you. Goodbye." Click.

That's right, boys and girls, the Attorney General of Virginia thinks it's perfectly okay to ignore a ruling of the U.S. Supreme Court, which expanded the rights and freedoms of American citizens, but he expects Virginia's colleges and universities to adhere to his interpretation of laws restricting those same rights and freedoms. This is what we allowed to happen, folks.

In a related story, LGBT rights activist/blogger David Mixner reports this morning on his blog, "Live from Hell's Kitchen" that a massive student demonstration is being planned at George Mason University in Arlington for tomorrow during Cooch's speech there. Protesters are gathering at 4:00PM at the George Mason Law School on 3301 Fairfax City Drive in Arlington. GetEqual's Robin McGehee is helping to organize the protest rally. Check out GetEqual's FaceBook page for details.

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Prop 8 challenge hinges on proving "Suspect Class" status

Image via Wikipedia

An article posted by KeenNewsService.com over the weekend provides a fascinating look at how attorneys challenging California's Prop 8 intend to present our case:

What do gay political icon Harvey Milk, anti-gay marriage activist Maggie Gallagher, controversial military contractor Blackwater, and the Walibiri aborigines of Central Australia have in common?

All are cited in the 3,001 exhibits filed by supporters of California’s same-sex marriage ban, Proposition 8, for inclusion in the trial challenging that law. The trial begins Monday, January 11, in a federal district court in San Francisco. The exhibits provide a glimpse into the strategy that conservative attorney Charles Cooper and his team will use to defend the California law that voters passed in November 2008.

One major focus of the exhibits encompasses the legal question of whether gay men and lesbians are a “suspect class”—that is, whether discrimination against them is so common that there is a reason to suspect that laws that treat them differently are based on that discrimination. In its 1996 decision Romer v. Evans, examining the motives behind an anti-gay ballot measure in Colorado, the U.S. Supreme Court stopped short of identifying sexual orientation as a suspect classification, but it did rule that laws based on animus toward gay people violate the federal constitution."

Read the full story here.

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