New York Times columnist Ross Douthat tries to explain his opposition to the legal marriage of two loving adults:
If this newer order completely vanquishes the older marital ideal, then gay marriage will become not only acceptable but morally necessary. The lifelong commitment of a gay couple is more impressive than the serial monogamy of straights. And a culture in which weddings are optional celebrations of romantic love, only tangentially connected to procreation, has no business discriminating against the love of homosexuals.
But if we just accept this shift, we're giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.
Let's say you think, as I suspect Ross Douthat might, that Christianity is "one of the great ideas of Western civilization." Are we "giving up on" Christianity by allowing people to practice Judaism and Hinduism and Buddhism and Islam and Atheism? Repeal the First Amendment! Or let's say that you think democratic elections are "one of the great ideas of Western civilization." Does it follow that it should be illegal to decide not to vote? Teachers are pretty important to Western civilization, too -- so perhaps we should make it illegal to be a police officer, bank teller, florist or ditch-digger?
Douthat is essentially arguing that if X is important, Y should not be allowed. For some values of X and Y (say, "Life" and "Murder") that makes sense. For others ("Teachers" and "Firefighters"; "Christianity" and "Judaism") it does not. Douthat makes no effort to explain why the marriage of two gay people belongs in the former category rather than the latter. And it seems not to have occurred to Douthat that his effort to preserve the "sexual ideal" of "lifelong fidelity and support by two sexually different human beings" actually demeans that which he seeks to protect, by suggesting that heterosexual marriage is so tenuous a concept that it cannot survive the extension of marriage rights to gay couples.
The American Prospect's Adam Serwer writes: "Ross Douthat's column this morning reads like a column from someone whose religious and cultural views lead them to oppose marriage equality but can't think of a very good reason for the state to prevent recognition of same-sex marriages." That sounds just about right.
Family Research Council President Tony Perkins dubiously claimed that "there is not conclusive evidence" that the children of same-sex couples "fare as well as children who grow up with a mom and a dad." In fact, the consensus among medical, and child-welfare groups is that children of same-sex couples do fare as well as children of heterosexual parents.
Right-wing author and noted homophobe Ann Coulter is slated to headline "Homocon 2010" on September 25 in New York City benefiting the gay Republican group GOProud. On the event's invitation, GOProud refers to Coulter as, "the right wing Judy Garland!"
Now is as good a time as any to note Coulter's long history of homophobia, gay baiting, and name-calling when it comes to the LGBT community:
Now that's what I call strange bedfellows. Who knows how many slurs she'll direct at members of the organization?
I'm actually surprised the group hasn't invited Michael Savage (née Weiner) to headline an event given his anti-gay history.
From the August 7 edition of Fox News' America's News HQ:
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Back in April, I wrote about News Corp and Fox News' love/hate relationship with the LGBT community:
It's no secret that Fox News doesn't live up to its "fair and balanced" slogan, especially when one considers its coverage of the LGBT community. In fact, much of its coverage is openly antagonistic and downright homophobic. On issue after issue of importance, the network, its hosts, anchors, contributors, and guests offer up lies, misinformation, and right-wing spin that only further stigmatizes the gay and lesbian community.
A review of Fox News' employment practices however, reveals a network at odds with its own homophobic public image.
According to an examination of the Human Rights Campaign's (HRC) employer database, News Corp. (Fox News' parent company) has had a policy protecting employees from discrimination based on sexual orientation since at least 2005 and has offered health care benefits to same-sex partners since at least 1999. Time Warner (CNN's parent company) and General Electric (NBC/MSNBC's parent company) offer not only these basic protections to gay and lesbian employees, they appear to go even further.
The HRC's Corporate Equality Index rates Time Warner and General Electric with 100 percent and 80 percent, respectively, while News Corp. has yet to complete the survey that HRC uses to establish its index. News Corp. would give us a better understanding of how it treats LGBT employees on a variety of other important issues by completing the survey, but the media company does deserve credit for at least offering some very basic protections and benefits for gay and lesbian employees.
Lack of a Corporate Equality Index rating notwithstanding, News Corp. has taken its support for LGBT employees a step further by sponsoring the National Lesbian and Gay Journalists Association (NLGJA) which describes itself on its website as "an organization of journalists, media professionals, educators and students working from within the news industry to foster fair and accurate coverage of LGBT issues." In fact, the program from the organization's annual conference last fall in Montréal included an ad from News Corp. stating: "The networks of Fox News honor NLGJA for its commitment to fair and balanced reporting. From your friends at Fox News Channel, Fox Business, News Corporation."
That ultimately is what's truly sad about News Corp.'s relationship with its LGBT "friends." The media company gives its employees decent protections and benefits while making the lives of the very same employees more difficult in the long-run by broadcasting homophobia and misinformation that harden anti-LGBT views and slow the movement for full equality under the law.
Evidence of this love/hate relationship couldn't be clearer of late, especially for those watching the right-wing network in the days following Judge Vaughn Walker's ruling that California's Proposition 8 is unconstitutional.
As Media Matters noted this week:
What must the LGBT employees at News Corp and Fox News think of their employer's attacks on the landmark, detailed, 136 page ruling?
To be fair, you may be looking for the "love" part of the "love/hate" relationship in this particular story. It should be noted that Margaret Hoover -- a Fox News contributor and the great-granddaughter of President Herbert Hoover – is on the advisory board of the American Foundation for Equal Rights, which spearheaded the legal challenge against Proposition 8 leading to this decision.
Read the entire ruling after the jump.
Yesterday, Media Matters for America reported that judicial ethics expert Stephen Gillers, an NYU law professor, said the argument that federal Judge Vaughn Walker should have recused himself from the case over California's ban on same-sex marriage because he is gay is "ridiculous." Today, New York Times and Associated Press articles quote other judicial ethics experts agreeing that the argument that Vaughn should have recused himself from the case has no merit.
The Times quoted Gillers and Hofstra Law School professor and judicial ethics expert Monroe Freedman, and the AP quoted judicial ethics expert and law professor William G. Ross from Samford University's Cumberland School of Law. All of them agreed that Vaughn's sexual orientation was not a reason for recusal.
From the Times:
Monroe H. Freedman, an expert in legal ethics at Hofstra Law School, said that while bias could lead to recusal in rare cases, "you could say, 'If a gay judge is disqualified, how about a straight judge?' There isn't anybody about whom somebody might say, 'You're not truly impartial in this case.' "
Mr. Freedman cited a 1975 opinion by Judge Constance Baker Motley of Federal District Court, an African-American jurist who was asked to disqualify herself from a lawsuit alleging unlawful discrimination. "If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others," she wrote.
Stephen Gillers, a professor at New York University Law School, said the time to raise such a challenge to Judge Vaughn had passed: if an issue is not brought up at trial, it is considered waived. "You can't wait to see how a judge will rule and then say he's the wrong judge," Mr. Gillers said.
From the AP:
William G. Ross, an expert on judicial ethics and law professor at Samford University in Alabama, said that a judge's sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.
"Under the logic of the people challenging the judge's fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn't rule on it either," Ross said.
Thie Washington Times predicitably brings an insanely bigoted take on Judge Vaughn Walker's August 4 decision to strike down California's ban on same-sex marriage. The Times claims that Walker "decided he would reshape the state to better suit his personal lifestyle" and "undermined not just the political process, but society itself."
The editorial goes on to compare Walker, who the Times repeatedly refers to as "Judge Vaughn," to "Ancient Rome's brutal emperor Nero" and appears to argue that same-sex marriage should be banned because "if everyone were to adopt the lifestyle choice that Judge Vaughn deemed harmless, within a matter of generations society would be extinct":
With a swish of his pen, Judge Vaughn discardedthe most fundamental of all government interests - the preservation of society itself. If everyone were to adopt the lifestyle choice that Judge Vaughn deemed harmless, within a matter of generations society would be extinct. While not all traditional marriages involve the raising of families, most do, and promoting this positive outcome falls among the most basic duties of government. When Judge Vaughn divorces marriage from the raising of biological families, he sets the stage for an "anything goes" social order.
Judge Vaughn's social experiment is nothing new. Ancient Rome's brutal emperor Nero is known to history as one of the earliest practitioners of a same-sex partnership that carried the sanction of the state. As the historian Suetonius described, Nero took a boy and "endeavored to transform him into a woman, he even went so far as to marry him with all the usual formalities of a marriage settlement."
With the power to impose laws contrary to popular will, Nero, like Judge Vaughn, wanted the community to embrace his unnatural way of life. It didn't last long. In the contemporary case, there is little doubt that the U.S. Supreme Court will eventually utter the final verdict on California's Proposition 8, hopefully rejecting Judge Vaughn's transparent activism. It is not the business of one man - or one set of nine - to reshape society to suit his fancy.
From the August 5 edition of MSNBC's Hardball with Chris Matthews:
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From the August 4 edition of ABC Radio Network's The Mark Levin Show:
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From the August 4 edition of Talk Radio Network's The Savage Nation:
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Contacted about the argument that federal Judge Vaughn Walker should have recused himself from the case over California's ban on same-sex marriage because he is gay, NYU law professor and judicial ethics expert Stephen Gillers called the argument "ridiculous."
This argument was pushed months ago after reporting surfaced that Walker is gay, with the non-profit Liberty Counsel saying that "in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself." It was revived today by The Washington Times.
Gillers said it was significant that none of the litigants in the case had asked that Walker should be recused. Gillers also stated that "the argument that your identity colors your ability to be impartial -- whether you are black, a woman, or gay -- has been repeatedly rejected by the courts."
Gillers pointed to two cases in particular in which the federal courts rejected arguments that a judge's identity requires recusal, Blank v. Sullivan & Cromwell and MacDraw, Inc. v. The CIT Group Equipment Financing, Inc. In Blank, the judge rejected a suggestion that she should recuse herself because she was an African American woman who had worked on civil rights cases. In MacDraw, the judge rejected a motion to recuse himself, in part, because he was Asian American, and sanctioned the attorneys who made the motion.
From the August 5 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Following Judge Vaughn Walker's landmark decision to strike down California's ban on same sex marriage, the right wing has falsely attacked him as an extremist member of the "liberal court" and pushed the ridiculous argument that as a gay man who may be in a long-term relationship, he should have recused himself from the case.
In reality, Walker was nominated by Presidents Reagan and George H.W. Bush and has been praised by Republican lawmakers, and as we've pointed out, if Walker should have recused himself because he was gay, by that logic, straight judges who have ruled against gay rights should have recused themselves from those cases.
The recusal argument is so bogus that, out of the hundreds of documents filed in the Prop 8 case, not one includes a motion asking Walker to recuse himself.
Not content to merely attack Walker, the right is now questioning the plaintiffs' experts because "many or most are in same-sex relationships." Here's the latest from NRO's Bench Memos:
Short version [of Walker's opinion]: Everything that plaintiffs' "experts" say is beyond dispute. E.g.: "[T]he evidence shows beyond any doubt that parents' genders are irrelevant to children's developmental outcomes." "The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples." (I would have thought that it's equally clear that "moral and religious views form the only basis for a belief" that the laws against murder should protect all persons.)
Judge Walker makes little or no reference to the fact that nearly all of plaintiffs' "experts" are political activists for gay causes and that many or most are in same-sex relationships. They're just neutral experts. In the same way that Walker is just a neutral judge.
From the August 5 edition of MSNBC News Live:
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The Washington Times is pushing the argument that federal Judge Vaughn Walker should have recused himself from Perry v. Schwarzenegger -- the case in which Walker struck down California's ban on same-sex marriage -- because Walker is a gay man.
The Washington Times reported:
University of Notre Dame law professor Gerard V. Bradley, who said much of Judge Walker's actions during the trial were "bizarre," should have recused himself, because "(as several newspapers have reported) the judge is openly gay." The Los Angeles Times and San Francisco Chronicle have both reported that Judge Walker's sexuality, though he is not "out," is an open secret in California gay and legal circles.
However, by that logic, straight judges who have ruled against gay rights should have recused themselves from those cases. After all, proponents of Proposition 8 argued that the ban on same-sex marriage was "about preserving marriage" as it has been traditionally defined. Presumably that logic would extend to other arguments against gay rights.
This argument is so ridiculous, in fact, that of the 712 documents filed by the litigants, the judge, and the clerk in the case so far (according to the federal court's Pacer system), not one includes a motion asking Walker to recuse himself.
The list of straight judges who have ruled against gay rights includes Supreme Court Justice Antonin Scalia who railed against the "homosexual agenda" in Lawrence v. Texas, the landmark 2003 ruling which struck down Texas' law banning sex acts between consenting adults of the same sex, 6-3.
In the Lawrence dissent, Scalia -- joined by Chief Justice William Rehnquist and Justice Clarence Thomas -- wrote:
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
Several years prior to that, in 1996, Scalia dissented in Romer v. Evans, which struck down an amendment to the Colorado constitution preventing protected status under the law for the gay community. Again, Rehnquist and Thomas joined Scalia in his dissent, which said:
This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality... is evil. I vigorously dissent.
In Bowers v. Hardwick, the 1986 Supreme Court ruling that upheld the constitutionality of a Georgia sodomy law, the majority opinion said:
The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.
No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.
Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.
The opinion was written by Justice Byron White and joined by Chief Justice Warren Burger and Justices Lewis Powell, Sandra Day O'Connor and Rehnquist. (Nearly 20 years later, Bowers was overruled by Lawrence.)
UPDATE: It gets worse. The Washington Times is actually mischaracterizing Notre Dame law professor Gerard V. Bradley argument that Walker should have recused himself. Bradley actually made a slightly different (but still unreasonable) point. In a Foxnews.com opinion piece, Bradley stated:
The neglected bias in the Prop. 8 trial has instead to do with the fact that - as reported in The Los Angeles Times last month - Judge Walker "attends bar functions with a companion, a physician."
If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California.
This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention.
When a judge is obliged to withdraw from a case due to a conflicting interest we call it "recusal."
Federal law requires that, whenever a judge knows that he has "any other interest [ that is, besides a financial interest] that could be substantially affected by the outcome of the proceeding" at hand, or when "his impartiality might reasonably be questioned", he must recuse himself.
I am not saying that Judge Walker should have refused himself in Perry v. Schwarzenegger.
I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying, and thus his interest in the manifold tangible and intangible benefits of doing so.
That is a conversation worth having.
And, sadly, it is quite too late to have it.