It's Conservatives Who Are the Judicial Activists

One of the most common types of whining of the Christianists and crazed loons of the GOP base is that "activist" judges are redefining laws, etc. What that really translates to is that judges are not having their rules controlled by a particular religious doctrine and/or they are extending equality under the civil laws to those whom the religious extremists, white supremacists and other bigots do not like. It is these people, not the federal judiciary (in most cases) that want to turn the Constitution on its head and retain special privileges for whites, far right Christians and others who believe that only they are "true Americans." E.J. Dionne has a op-ed in the Washington Post that looks at how the far right has twisted the political discourse and projected their own agenda onto judges and liberals. Here are some highlights:

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Nowhere has the conservative intellectual offensive been more effective than in transforming our discussion of the judiciary. That is why the coming clash over President Obama's next Supreme Court nominee is so important.
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The test of success for liberals should not simply be winning the confirmation battle. This fight must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it.
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Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies in areas such as pay discrimination, school integration, antitrust laws and worker safety regulation.
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If anyone doubted that the Supreme Court's current conservative majority wants to impose its view no matter what Congress or state legislatures decide -- or what earlier precedents held -- its decision in the Citizens United case should end all qualms.
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Stevens added: "In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules." Citizens United is an extreme case of a general tendency: Conservative judges are regularly invoking their alleged fealty to the "original" intentions of the Founders as a battering ram against attempts to limit the power of large corporations. Such entities were not even in the imaginations of those who wrote the Constitution. To claim to know what the Founders would have made of Exxon Mobil or Goldman Sachs or PepsiCo is an exercise in arrogance.
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What liberals forgot during the years when their side dominated the judiciary is that for much of our history, the courts have played a conservative role. But today's conservatives have not forgotten this legacy. Their goal is to overturn the past 70 years of judicial understandings and bring us back to a time when courts voided minimum-wage laws and all manner of other economic regulations.
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Let's remember that the truly "elitist" judges are the ones who protect the privileges of the powerful over the right of Congress to legislate on behalf of workers, consumers and the environment. Let's ignore the claims of conservatives that they are opposed to "legislating from the bench," since it's their judges who are now doing the legislating. If liberals can't successfully challenge conservatives on first principles, they'll never win the fights that matter.

Virginia's Judicial Lynching of Gays

No, this is not another post about Bob McDonnell's "lynching" of Judge Verbena Askew during the reappointment hearings back in 2003. Instead it's another look at the judicial lynching of gay spouses that happens likely nearly daily somewhere in Virginia where homophobic judges are allowed to ingnore the Canons of Judicial Conduct at will even thought Canon 3 provides in relevant part as follows:

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CANON 3. A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY AND DILIGENTLY.

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Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply.

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Adjudicative Responsibilities.
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5. A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. This Section 3B(5) does not preclude proper judicial consideration when race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, or similar factors, are issues in the proceeding.

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6. A judge shall require all persons appearing in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, against parties, witnesses, counsel or others.
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E. Disqualification.
1. A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: a. The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

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These dictates have certainly been ignored in my own divorce case and in those of many others gay spouses I have heard from who came out later in life after being married. Here's one individual's comment on his experience:

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There is a lot of hoopla about gay men coming out early, and good for them, I say. Yet there are many many men who married because it was the expected thing, because it was the only thing. And they face hard hard choices.

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I opted to come out. I lost nearly everything and everyone, including wife, kids, family, friends, job, court cases. Faced with similar choices, a friend and former co-worker (who worked for the same religious-based organization I had) drowned himself. The pain is real. folks. Awfully, terribly real.

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Losing everything and suicides - does any of this mean anything to many Virginia judges? Sadly, it means nothing to I suspect a majority of Virginia's judges. Indeed, in my view, judges who punish LGBT litigants for failure to adhere to the judge's personal anti-gay religious views are the norm as opposed to the exception. Something needs to be done and judges who cannot put their anti-gay religious bias aside need to simply be removed from the bench. It's really that simple. And someone needs to see that the Canons of Judicial Conduct are actually enforced for a change.

Judicial Homophobia

UPDATED: Barney Frank has a column at Huffington Post that further explains his comments about Scalia. Here are highlights:

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My view that Justice Scalia is prejudiced against gay, lesbian, bisexual and transgender people is based, not on his position on marriage, but entirely on the angry minority opinions he wrote in two Supreme Court cases in which the majority held that gay and lesbian people had certain rights against discrimination regarding private consensual sex and political activity. In those two virulent dissents, Justice Scalia denounced the court majorities not simply for finding that it was unconstitutional to discriminate based on sexual orientation in cases involving political rights and the right to private consensual sex, but he also made it clear that in his view sex discrimination is not only permitted by the Constitution but is very much in society's interest because homosexuality deserves to be treated with not only disapproval, but legal disability.

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Recently, Barney Frank called a spade and spade and voiced his view that Supreme Court Justice Antonin Scalia is an anti-gay homophobe. While Frank is taking some heat for speaking the truth, Scalia is only one of many judges and justices on the bench who should not be in their current positions because of their unwillingness or inability to put their own personal anti-gay bigotry. I can name judges right here in Norfolk who are serious homophobes in my opinion and who should never have been put on the bench. Gays appearing before these and similarly bigoted judges are sadly nearly guaranteed to be mistreated and denied the same justice their heterosexual counterparts regularly receive. In the case of Scalia, Frank cites Scalia's own opinions to make his case against Scalia. Here are some highlights from CNN on Frank's statements:

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(CNN) -- Congressman Barney Frank is taking some major heat for making a serious accusation against Supreme Court Justice Antonin Scalia. "I do think this argument that it is unconstitutional for the federal government to pick and choose as to which marriages it will accept is a good one. At some point that's going to have to go to the United States Supreme Court," Frank told the Web site 365gay.com on Friday. "I wouldn't want it to go to the United States Supreme Court now because that homophobe Antonin Scalia's got too many votes on this current court."

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Two opinions written by Justice Scalia in which he makes it very clear that he thinks it's a terrible idea for people who are gay or lesbian to have equal rights. It's not based on his views on marriage. . . . A few years ago, the state of Texas tried to send to prison two men who had private, consenting sex in their own bedroom. And the majority on the court said, "That's unconstitutional. That's an invasion of privacy." [Lawrence v. Texas].

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Justice (Clarence) Thomas said, "Well, I think it's a silly law. I would have voted against it, but I don't think the Constitution prohibits it." Justice Scalia wrote a long, angry dissent in which he made it very clear he thought it was a perfectly good law and that, in fact, homosexuals, as he refers to us, are bad people, and the notion that there ought to be any kind of legal protections is a mistake.

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In an earlier case in Colorado, in which he again vigorously denounced the majority in the court for finding that it was unconstitutional to discriminate against people, again, not in marriage but a basis of their political rights, he said, "Well, of course, we disapprove this. We often disapprove of things like murder." I mean, literally, when he was looking for comparisons to the public disapproval of homosexuality, the first thing he said was murder.

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So unlike many people who have different legitimate views on this, I urge people to read those two opinions in the Colorado case, the Romer case and the Lawrence case. And, again, there is just no question about his absolute view that ... homosexuals are bad people that shouldn't be treated equally.
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I just differentiated between Justice Scalia and Justice Thomas. Justice Thomas said it's a silly law to send people to prison because of private, consenting sex. Scalia basically says "Yes, that's where they belong." So that's exactly the case. . . . And, again, the issue in my mind is his vehement denunciation. Let's put it this way: He says it's taking sides in the culture war if you don't send people to jail for having private, consenting sex. It's got nothing to do with marriage.

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Judicial homophobia is a very serious problem and in my view is something that gay rights organizations need to do much more to expose. I applaud Barney Frank for calling it like it is. One can only look forward to the day when bigots like Scalia and similar homophobic are no longer on the bench and in a position to allow them to inflict their personal bigotry on litigants who ought to be treated no differently than every other citizen.