STEP ASIDE, MR. SCALIA...STEP WAY ASIDE

What if a Supreme Court Justice publicly expressed discriminatory opinions against an entire population segment? And what if that same Justice repeatedly voted in a way that would deny that population segment the same rights as other Americans? And most importantly, what if the culture was rapidly changing in favor of the above-mentioned population segment, but the Justice continued to vote in favor of what he has referred to as “rather modest attempt to preserve traditional sexual mores against the efforts of a politically powerful minority."

The very bad news is that there is indeed such a Supreme Court Justice. For those who have not really paid much attention to him, let me introduce Supreme Court Justice Antonin Scalia (below, left). And that much talked-about population segment? That would be gay Americans, a part of the U.S. citizenry that Scalia has clearly chosen to disenfranchise at every turn. That is why I am using my citizen voice to ask Scalia to recuse himself from the Court’s 2013 votes related to gay rights. I believe Scalia should step aside during these votes based on his unfortunate, discriminatory and fully homophobic past votes on issues related to gay Americans.

 

This year, the Supreme Court is slated to vote on two critical issues related to gay rights -- California's Proposition 8, which bans gay marriage, and a provision of the federal Defense of Marriage Act.  In the first case, the Court will consider the constitutionality, or lack thereof, of California’s Proposition 8, which defines marriage as only between a man and a woman.  The second critical decision will have to do with the Defense of Marriage Act, which also holds that only men and women can marry one another, and that all of the following are not legal for gay couples:  Insurance benefits for government employees, Social Security survivors' benefits, immigration, and the filing of joint tax returns.

For the record, DOMA was signed into law in 1996. These past 17 years have seen more rapid social change regarding gay Americans than in any time in U.S. history. Even the President who signed the bill into law, Bill Clinton, now disagrees with it. So do a number of federal courts that have ruled the bill unconstitutional. DOMA does not really apply to contemporary America. And although 1996 may not seem like such a long time ago, we all know that much has changed since then. So, those “traditional sexual mores” Scalia once referred to are not so traditional anymore.

Here is why Scalia needs to dismiss himself from this debate. First, and most recently, during an appearance before the American Enterprise Institute (a conservative think tank), Scalia, said, “Homosexual sodomy? Come on. For 200 years, it was criminal in every state."  Scalia’s comments are uninformed on two fronts: First, homosexuality is not all about sodomy. Without going into the graphic details, let’s just say that just like heterosexuals, some homosexuals engage in sodomy and some do not. And just like heterosexuals, homosexuals base their loving relationships on a number of human elements, only one of which is sex.  Second, many laws that were enacted 200 years ago no longer apply to the wide population in the U.S. Has Scalia taken a look at copyright laws, for example, since technology wrought online publications?  The “200-year” rule is not a valid argument for discrimination.

Further, in an address to students at Princeton University in December, Scalia said, ““If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” Clearly, Scalia, 77, came of age at a time when World War II had recently ended, and the country was in the throes of true conservatism. There was little or no talk of civil rights, and almost no talk of homosexuality. He was raised in a strict Catholic household, and attended a private Catholic high school.  In a 2010 NY Times article,a high school classmate of Scalia’s said, "This kid was a conservative when he was 17 years old. An archconservative Catholic.” It is the “archconservative” part that matters here, not the “Catholic” part. Believe me, there are plenty of gay Catholic Americans who would jump at the opportunity to get married.

There is a federal statute that governs judicial recusals.  Here is what it says: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

How much clearer could it be? Scalia is unqualified to rule on issues related to gay rights. I could easily make the case that Scalia is simply too out of touch with contemporary culture and society to rule on these cases, but instead, it is more appropriate to simply label him as unqualified to do so, based on the above-mentioned federal statue. His “impartiality might reasonably be questioned” and he clearly “has a personal bias or prejudice” against the homosexual population in America.

Justice Antonin Scalia needs to recuse himself from both cases that are due to be heard in the Supreme Court this coming Spring.

SAME SEX MARRIAGE: CHECK THE CONSTITUTION

Your culture is shifting – can you feel it? If you feel vaguely uncomfortable, apprehensive and possibly even scared, you are not alone. Right now, major shifts in the American culture have everything to do with inclusiveness and exclusiveness. We are moving toward including the homosexual segment of our population, as we move closer to excluding our immigrant population. Ying, Yang. Push, Pull. Aahhh, ouch. Feel it?

I will save the immigrant portion of this topic for another day, but today let’s talk same-sex marriage. It is front burner now. You know that. It has been inching toward the front of our collective consciousness for a very long time now, but U.S. District Chief Judge Vaughn R. Walker just gave it the necessary impetus to speed itself up. Republican-appointed Judge Walker, on August 4, 2010, ruled that California’s controversial Proposition 8 is unconstitutional, in spite of the millions of Californians that voted otherwise in 2008. Proposition 8, you will recall, was a measure that made same-sex marriage illegal in California. Widely seen as precedent setting in the U.S., Prop 8 has given talking heads material for years now, and threatened to deny millions of Americans their constitutional rights.

In his ruling, Judge Walker (below, left)wisely and sensibly wrote this: “Moral disapproval, without any other asserted state interest, has never been a rational basis for legislation.” (Page 133). He also made the inevitable comparison to our country’s mid-20th century struggle with inter-racial marriage. He wrote: “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.” (Page 114)

When Walker refers to ‘Loving,’ he is referencing the landmark case Loving v. Virginia, a 1967 Supreme Court decision that invalidated the 1924 Racial Integrity Act that outlawed interracial marriage. The plaintiffs in the 1967 case were Mildred Jeter, a black woman, and Richard Loving, a white man, who married in Virginia and were subject to criminal prosecution under the Racial Integrity Act. Watch:

Now, 43 years later, similar dynamics are showing up in the struggle to legalize same-sex marriage in America. You might think we had settled this equal rights dilemma all those years ago, but clearly we did not. Somehow, because two people with the same reproductive organs fall in love, America has collectively decided to disenfranchise gay people. How do you feel about that? Do you feel that you, as a citizen, have the right to deprive other citizens of their rights because of their sexual preference? Are your rights as a citizen in any way tied to your sexual organs? Let’s carry that just a step further: What if your rights as a citizen were challenged based on some things that you have done sexually in your life? Think back, real hard now. What if, all of a sudden, your citizenship was challenged because you had sex with someone other than your spouse? Or what if you were no longer allowed to visit your spouse in the hospital because of that one time you had sex with a prostitute? Or wait, what about this? What if you were turned down for military service because you like three-ways?

The very noisy objections of the anti-gay marriage movement are typified by one Tony Perkins, President of the Family Research Council, a right-wing Christian group dedicated to conservative policies. Perkins has been vocal in his staunch objections to all things homosexual. I like to think of Perkins’ group as Anita Bryant on acid. But that’s just me. Listen to what Perkins had to say about Judge Vaughn’s ruling:


You and I both know that 50 years from now we will look back on this the same way we look back on Loving v. Virginia. As I said earlier, you can feel the culture shifting right now. Even 10 years ago it was unheard of for some major corporations to extend employee benefits to the partners of gay employees, but now it is almost de rigueur. The idea of two men or two women adopting a child was not even considered just a few years ago, and now there are thousands of such families. The thought of making it legal for openly gay men and women to serve in the military was not even up for discussion not long ago, and now we are on the cusp of repealing the discriminatory, ill-conceived “Don’t Ask Don’t Tell” policy. It is happening, albeit perhaps not as swiftly as some citizens prefer.

In America, social change happens at a snail’s pace. When it does happen, as dictated by the judicial system, there is an inevitable backlash from those who cling to tradition, even if that tradition is flawed and discriminatory. In the end, when social change focuses on marriage, as it did with the Lovings, love trumps politics, history and prejudice. That will certainly happen again, but this time the recipients of equal rights will be gay Americans. That could include your sister, or your uncle, or your boss, or your best friend or your son’s best friend, or your pre-school teacher or…well, fill in the blank. These individuals are not anomalies. Rather, they are your fellow citizens.

Judge Vaughn’s ruling is not a radical move. Instead, it is an effort to extend equal protection under the law to all citizens. It is not an effort to change the law, but rather one to enforce existing law. The 14th amendment to the U.S. Constitution clearly states that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” With that very simple statement in mind, Vaughn wrote the following in his ruling:

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.”

That says to me that the only way gay Americans can be prohibited from marrying other gay Americans is by amending the existing U.S. constitution. Since that is unlikely to happen in our lifetime, I suggest you break out your tux, or your party dress and get yourself to the church on time. There are wedding bells about to ring coast to coast and surely you won’t want to miss the fun.

SAY WHAT? Pastor Rick Warren Is Drowning In His Own Words

On Sunday morning, ABC’s George Stephanpoulos and the staff at “This Week” were left scrambling, when Pastor Rick Warren cancelled his scheduled appearance moments before air time. Warren’s official excuse was that he was “sick with exhaustion.” It can be exhausting keeping your stories straight, especially on issues that your exceedingly loyal parishioners feel strongly about.

Warren, who founded the Saddleback Church 30 years ago, claims the church is one of the largest multi-site mega-churches in the country. It is, by all reports, founded on tenets of traditional conservatism. In the inevitable cross-pollination that happens these days between evangelical dogmatism and hot button political issues, Warren has come forward more than once with his views on gay marriage. Unfortunately, every time he speaks of gay marriage, he peppers the statements with his work with AIDS groups. Why is it, I wonder, that a smart man like Warren cannot understand that these are individual, starkly different issues? And why is it that Rick Warren blatantly contradicts himself on his views of gay marriage?

Here is what Warren said about gay marriage before the vote in California on Proposition 8, which essentially banned gay marriage:

Warren left no doubt in the minds of those who heard his statement. Oddly, a few nights ago on Larry King, Warren had this to say about gay marriage:

In fairness, Warren should not be pigeonholed on one cultural issue. He has spoken out on many issues, and he has led the charge on some important work in his career. But he is clearly in the hot seat right now on the cultural shifts regarding gay marriage, and in at least one of the statements you just heard in these videos he is not being truthful. Based on Warren’s historical anti-gay marriage stance, it would appear he was less than honest with Larry King.