Stop Labeling The Sixth Circuit’s Approval Of Gay Marriage Bans As “Right Wing”

prop-8People who don’t (or can’t) read court decisions—and in this very large group I include most pundits and journalists—are prone to dismiss careful thought out and reasoned judicial arguments that took careful research and consideration as the product of political bias rather than what they (usually) are: sincere, honest, intelligent dissections of issues that are far more complex than advocates for opposing sides care to admit.

The Sixth Circuit just triggered an almost certain U.S. Supreme Court review of state same-sex marriage bans by upholding such bans in several states. Immediately, pro-gay marriage advocates and pundits attacked the decision as “right wing,” as if the court reached the decision from a starting point hostile to gays and homosexuality generally. The implication of this interpretation is that judges do not follow the law, legal principles and standards of jurisprudence and construction, but merely decide what result they wish to reach based on ideological and partisan biases, and then write essays of advocacy disguised as objective analysis.

The presumption is both ignorant, unfair, and convenient. It is ignorant because it assumes that the judicial profession and those in that profession ignore the primary ethical requirements of being a judge, standards that have stood unchanged and unchallenged for centuries and that every jurist swears to uphold. The first two Canons of the ABA Model Judicial Code state those standards clearly:


A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.


A judge shall perform the duties of judicial office impartially, competently, and diligently.

What other profession is routinely presumed to defy its basic duties to society?

The presumption is unfair because it is untrue. While certainly some judges—bad ones—ignore the law and principles of legal interpretation and construction in ruling on case controversies, this is far from the norm, and the practice cannot be attributed to every judge and every decision a critic disagrees with on ideological grounds. [Correction: in the original version of this post, I stated that Justice Scalia joined the majority in Lawrence v. Texas, 539 U.S. 558 (2003), which struck down anti-sodomy laws as an unconstitutional violation of privacy, as well as an Equal Protection breach. That was wrong, and stupid too, because it was easily checked. I apologize for the error.]

Finally, the presumption that judges’ decisions are driven by ideological bias rather than legal analysis is convenient because it allows activists, advocates, politicians and pundits without any experience, skill or education in the law to claim that serious works of legal scholarship and analysis have no validity when they reach conclusions those advocates don’t like or support. It allows them to attack a decision like Citizens United, for example, as the work of pro-Republican political activists, rather than a decision compelled by the Constitutional right of free speech. Could a judge who was a registered Democrat legitimately find Constitutional fault with a law that could, as the campaign advocacy law in question would have, allow the banning of books and films according to who paid for their production? We should all hope so. It is significant that this SCOTUS decision that the President and Democrats attacked relentlessly in the campaign past and that progressive pundits use to tar the Court as a political ally of big money conservatives is staunchly supported by the American Civil Liberties Union.

The case of DeBoer v. Snyder, in which the Sixth Circuit bucked the trend in other federal courts of holding that state laws refusing to recognize seam-sex marriages was not the work of determined social conservatives hostile to homosexuality and gay marriage. Does this read like an anti-same sex marriage screed?

“Over time, marriage has come to serve another value — to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers.”

That is a prominent paragraph from the opinion. The decision, however, is built on the “rational basis” test, and a careful analysis of why a law that may seem wrong, unwise, unfair and even unjust should not be overturned by judicial fiat unless no “rational basis “can be found for the law’s existence. This is the principle of jurisprudence that guards against “legislating from the bench, ” a hallmark of judicial conservatism that is not synonymous with political conservatism. The Sixth Circuits opinion argues:

“The signature feature of rational basis review is that governments will not be placed in the dock for doing too much or for doing too little in addressing a policy question. In a modern sense, crystallized at some point in the last ten years, many people now critique state marriage laws for doing too little — for being underinclusive by failing to extend the definition of marriage to gay couples. Fair enough. But rational basis review does not permit courts to invalidate laws every time a new and allegedly better way of addressing a policy emerges, even a better way supported by evidence and, in the Michigan case, by judicial factfinding.

If legislative choices may rest on “rational speculation unsupported by evidence or empirical data,” Beach Commc’ns, 508 U.S. at 315, it is hard to see the point of premising a ruling of unconstitutionality on factual findings made by one unelected federal judge that favor a different policy. Rational basis review does not empower federal courts to “subject” legislative line-drawing to “courtroom” factfinding designed to show that legislatures have done too much or too little. Id.

What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still relevant today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.

To take another rational explanation for the decision of many States not to expand the definition of marriage, a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries. That is not preserving tradition for its own sake. No one here claims that the States’ original definition of marriage was unconstitutional when enacted. The plaintiffs’ claim is that the States have acted irrationally in standing by the traditional definition in the face of changing social mores. Yet one of the key insights of federalism is that it permits laboratories of experimentation — accent on the plural — allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.”

Constitutional scholar Eugene Volokh, who supports legalizing gay marriage, finds this “rational basis” argument compelling. That doesn’t mean that the Sixth Circuit’s decision was right: both Prof. Volokh and Professor Ilya Somin, writing here, believe that same-sex marriage bans still fail the Equal Protection test notwithstanding a strong case for meeting what the Sixth Circuit calls the “low bar” of rational basis review.

Okay, maybe the decision was wrong. (I suspect the the Supreme Court will overturn it and side with the other Circuits that have supported same sex marriage.) The fact that it supports a popular right-wing political position, however, does not mean that the decision itself was biased, or that it was driven by ideology.  The Sixth Circuit decision in DeBoer is a good faith analysis of complex legal issues by professional jurists who are a lot more professional, objective and well-qualified than those who dismiss it as mere ideological hackery.


Sources: Washington Post (Volokh) 1, 2; ACLU

87 thoughts on “Stop Labeling The Sixth Circuit’s Approval Of Gay Marriage Bans As “Right Wing”

  1. Unfortunately, Jack, the widening chasm between both political sides has resulted in a culture where every social dispute, from gender relations, to marriage to basic differences of opinion is seen as something that the right side has to win or lose, no compromise, no finding common ground, no striking a deal everyone can live with, only one side putting its foot on the other’s throat while its adherents congratulate each other on being right yet again. More and more evidence emerges every day that those in charge of the national apparatus that is supposed to enforce the laws irrespective of politics have no qualms about using that apparatus to deliberately handicap and silence those whose politics they disagree with.

    It shouldn’t come as a surprise in this culture of cross-demonization that the side that is convinced it is “on the right side of history,” which is just saying “God is on our side” without God, should characterize a victory for the other side which snaps a long streak of losses that made its ultimate victory look inevitable as partisan hackery. It is an article of faith on the political left that gay marriage has to be the law of the land in all fifty states, and anyone who opposed this article of faith, whether his reasons be simple bigotry, social conservatism that does not believe a 5,000 year old definition of a basic institution should be changed in not even 1/100th that time, or legal conservatism that holds that a political issue like this is best handled by the legislature, and the courts should not step in to change that decision, is simply wrong and needs to be punished as a hater.

    Eventually this is going to reach the Supreme Court, and they will be faced with the necessity of resolving this issue one way or the other. However, given what’s gone on over the past two years, I am convinced this is only the end of the beginning, not the end. As previously discussed this is no longer about equality, nor about gay couples settling down into bourgeois lifestyles with mortgages and all else that goes with being married. It’s about dominance, and, to some degree, revenge, and the forcing of everyone to not just accept, but fully celebrate gayness under pain of severe penalties. It shouldn’t come as a surprise that those who are pushing this agenda forward would not accept a temporary setback with grace.

  2. Unfortunately, Jack, the widening chasm between both political sides has resulted in a culture where every social dispute, from gender relations, to marriage to basic differences of opinion is seen as something that the right side has to win or lose, no compromise, no finding common ground, no striking a deal everyone can live with, only one side putting its foot on the other’s throat while its adherents congratulate each other on being right yet again.

    Agree that this is the situation.
    Agree that it is undesirable and unfortunate.
    It’s neither new though, nor confined to one side of politics. Which was the original offender, and which retaliated, doesn’t matter. What matters is doing something about it.

    Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can’t and won’t compromise. I know, I’ve tried to deal with them.

    Barry Goldwater, 1994

    Just as others believe they are acting for Social Justice, so cannot and will not compromise.

    I tend to be very uncompromising myself – but I hope not to the extent that I lose my humanity, and become oppressive.

    Goldwater was apparently wrong. Governing requires compromise, bloody minded obstructionist politics does not.

    • Sorry, Zoe, but that line of nonsense just doesn’t cut it. Not after all these years of Harry Reid. I’m fully aware that this is the prevalent line of propaganda out of the DNC since they lost the Senate last Tuesday, but they (and you) are dead wrong if you think that, after having gained that majority, we’d let our representatives (old and new) play patsy with the Left. Not after all they’ve done and have tried to do, as well. That’s not what we elected these new people for and we’re going to make damn sure that they never forget it. In the final consideration, you can’t compromise with evil without compromising your soul into the bargain. After these last six years, we have no illusions remaining about where the evil resides.

  3. Noash Feldman wrote this:

    is grounded in a theory of judicial restraint — and not even judicial restraint generally, but a very modest theory of judicial restraint appropriate to appellate courts that are subordinate to Supreme Court precedent. [Emphasis added.]

    An appellate court must, of course, follow Supreme Court precedent.

    The problem is that, with the country and the Supreme Court in the midst of an epochal change in our thinking about a crucial moral question such as equality, the usual rules of judicial restraint and obedience don’t apply.

    And how exactly is that supposed to work out? Could a judge cite the AIDS epidemic as an excuse to defy Lawrence v. Texas. Could a judge cite Sandy Hook to defy D.C. v. Heller. Or the campus rape epidemic to defy Miranda v. Arizona, Gideon v. Wainwright, or Mapp v. Ohio?

    • Michael: “An appellate court must, of course, follow Supreme Court precedent.”

      In theory, yes. In practice, as one of my legally savvy friends put it, they use the United States Reports as birdcage liner. From Judge Kopf’s blog (a hypothetical conversation written by someone who has “been there,” both as a law clerk and a federal judge):

      Skeptical law clerk: Judge, as you asked, I have carefully read your opinion on the gay marriage cases even though another clerk worked on it.

      Judge Sutton: Thanks. What do you think?

      Skeptical law clerk: Do you really want to know?

      Judge Sutton: Young woman, I don’t ask questions for fun. What do you think?

      Skeptical law clerk: It is very weak.

      Judge Sutton: How so?

      Skeptical law clerk: I don’t know where to begin.

      Judge Sutton: Pick any place and start.

      Skeptical law clerk: Nobody is going to buy your reliance on that old, one sentence case from the Supreme Court.

      Judge Sutton: I am bound by precedent.

      Skeptical law clerk: Come on, Judge. You could reason your way around that old thing in your sleep.

      Judge Sutton: Well, maybe. Go on.

      He could. And quite easily. A lot of precedents have been overruled by implication, and Baker v. Nelson is near the top of the list.

  4. Jack: “People who don’t (or can’t) read court decisions—and in this very large group I include most pundits and journalists—are prone to dismiss careful thought out and reasoned judicial arguments that took careful research and consideration as the product of political bias”

    On this, we can agree. That is why, when cases like these come out, I go right to the opinion. I always operate under a presumption that judges act in good faith, but it is a rebuttable presumption, and one passage from page 28 of the slip opinion reeks of bad faith:

    But the right to marry in general, and the right to gay marriage in particular, nowhere appear in the Constitution. That route for recognizing a fundamental right to same-sex marriage does not exist.

    For a man whose entire argument rests on a dubious interpretation of a one-sentence opinion in a forty-year-old case, that is an open confession of judicial malpractice. In our society, marriage is a contract, with default terms drafted by the State. As the Supreme Court has ruled that the right to contract in general, and marriage in particular, are fundamental rights, the question is settled. Anyone who has had a decent course in American History knows that Madison’s purpose (as stated in Congress), as clearly expressed in the text of the Ninth and Tenth Amendments, was to equate unenumerated rights with the enumerated ones, to avoid creating a false presumption that the latter were ceded to the government through silence. Sutton’s “argument” is, therefore, a desperate rationalization, resting on a comically unsound foundation. One bad link breaks the chain of legal reasoning.

    I tend to grant judges a lot of slack, but that opinion convicts Judge Sutton as a rabid right-wing attack dog who broke his leash.

    Jack: “The presumption is both ignorant, unfair, and convenient. It is ignorant because it assumes that the judicial profession and those in that profession ignore the primary ethical requirements of being a judge”

    Res ipsa loquitur. If this sort of incident were rare, I would dismiss it as the odd panel having a bad day. But even judges tell us that they do it, and it is obvious from the opinions that they do it, and this one is so far beyond the pale that the only rational conclusion is that Judge Sutton jumped the shark.

    Allow me to borrow something from Judge Kopf’s blog (even he thinks that Sutton jumped the shark, and as he is a sitting federal district court judge [as he was nominated by a Republican, liberal bias shouldn’t enter into the equation], he presumptively knows how to read appellate opinions), from one of the commentators:

    “The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry. Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004).

    [Emphasis in original.] Senior Judge Miner sat on the Second Circuit until his recent death. Given his background and the high respect he has been given, his opinion carries a certain gravitas.

    Sorry, Jack. No sale. This is judicial misconduct, plain and simple. And it happens on both sides of the spectrum. Read this ridiculous decision, from former District Judge H. Lee Sarokin, who used to do commentary for the Huffington Post, Kreimer v. Bureau of Police for Town of Morristown, 765 F. Supp. 181 (D. N.J. 1991), and get back to me. (The flaming liberal Sarokin pissed me off while at the HuffPost, so I did a little oppo research on him. 🙂 Clinton actually wanted to put that clown on the Third Circuit.)

  5. One more thing before I shut up: People seem to forget that that flaming liberal Antonin Scalia predicted that SSM would win in the courts a decade ago, in Lawrence v. Texas:

    State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

    If even Scalia can’t get there with you, you are probably a little too far to the right.

    • All righty, then – let’s take all that judicial penumbras-and-emanations B.S. to its next natural step, and define all relationships between employers and employees as marriages, too. Because after all, anything less is a failure to uphold rational basis and equal protection, leading to second-class citizenship, slavery, and special carve-outs for hate crimes.

      • That is a special kind of daft. The employee-employer relationship IS a contract, with many key terms defined by the State. Marriage is but a subset. All marriages are contracts, but not all contracts are marriages.

          • The special kind of daft is Scalia’s statement. Penumbra or not, there are plenty of rational basis arguments for banning bigamy, prostitution, , adultery, and bestiality, at least, if not the others.

              • 1. Child sex is child abuse with a human too young for consent. Never will be legal, ever, not even in Hell.
                2. Child incest, the same. FDR and Eleanor were incestuous by some laws. I have a good friend who just married her first cousin. Adult incest is not the state’s business.
                3. And absent real evidence of physically and spiritually destructive results notably distinct from all sexual activity, and there just isn’t any, Steven, the ban can’t be sustained.

                • Incest is usually banned in Western societies because it was long realized that such inbreeding was harmful. Sodomy, besides being an extreme health hazard to the sodomites and others who come in contact with them, is also a mental affliction that extends to other aberrant and destructive behaviors. Then comes the concept of “gay marriage”, whose purpose is not only to degrade natural male/female family unions, but to deliver innocent children into the custody of such individuals for their pleasure and indoctrination into the ranks of deviancy. That latter point seals the issue for me.

  6. You know, I’m going to call out two similarly named people, who generally put out legitimate arguments, but the moment anything gay is mentioned, seem to have their brains liquefy and trickle out their ears. I’ve held off in the past, both in the hope that maybe after having certain truths presented over and over again, they might change their tune, and because I don’t know that there’s much to be gained by this. But I’ll call it personal therapy.

    There’s a legitimate conversation to be had about the bully lobby attached to gay rights. There’s a legitimate conversation on whether we should subsidize marriage for couples that can conceive, couples in general, or nobody. There are legitimate conversations about the separation of power, and judicial hierarchy. None of those conversations are started by, added to, or finished by calling gay people “deviants” or “perverts” and definitely don’t include references to a “Stinky Brown Tide”

    Steven Mark Pilling, and Steve-O in NJ. Fuck you. Fuck you for being bigoted assholes. Fuck you for trying to use legitimate arguments to veil your hate. Fuck you for being the part of the conversation that allows the left to paint the right as religious fundamentalist wingnuts. And on the same track, fuck you for attempting to blur the lines between church and state by hiding behind otherwise legitimate talking points. Your signature significance precludes me from taking anything you say on this theme seriously, because as with anything I have to consider the source.

    • Therapy? Feel better now?
      I reckon satan feels a little bit like that (or thinks he feels that way) after he’s slung a few more accusations, too.
      Unfortunately, you have only succeeded in rendering yourself into yet another self-impeaching source. You’ve made your own stink, now you have to gag on it with the rest of us. To you, a big, sarcastic “thanks.”

      • I do feel a little better, thank you.

        I realize that after a rant, especially one like that, something between very little and nothing constructive can be accomplished. But Steve-O in particular has a long and storied history of really unacceptable comments in here about gay people in general. I’ve bit my tongue and let it go because when you have someone with a world view that distorted, you really can’t change anything. But then I weighed it against recent conversations I’ve had with liberals who I think have failed utterly to police their crazies, and I realized that silence on the issue could be construed to be condoning the issue. I think to be intellectually consistent, calling them out was necessary. Perhaps not that way, I grant you. But after years of crude “rutting in the mud” comments, if you decide NOW is the time you need to comment on this, and that MY language is too inflammatory, well sir, fuck you too.

        • Frankly, Humble, the bulk of those “rutting in the mud” comments you mentioned have, from my experience, originated either with perverts or those that support their agenda. Considering what the moral character of such persons must likely be, this only stands to reason.

        • Hey, asshole! Get a clue! I don’t care if you think I should change my tune. I don’t care if you think my comments are unacceptable. And I don’t think you have any clue what the truth is, let alone a lock on it. Your call-out to me means nothing. This is not your domain and not yours to police. Jack is only partially right, that we rarely use invective face to face because there’s someone else there and the golden rule kicks in. The other side of this is that other human being might just bust us one in the grill, which is exactly what I would have done if you started spouting that filth at me. You take your fucking opinions and shove them up your fucking ass, you goddamned, mother-fucking sonofabitch!

    • Fuck you and your family, talent. You are just as big an asshole. I don’t care if you hate me because I hate you as well. This post had nothing to do with open hate and everything to do with trying to have a real discussion. If you want to hurl insults, that’s fine, it’s proof that you are out of logic and anything of value. It’s easy to curse me out like Dan Savage from behind your computer, I daresay you wouldn’t dare do it face to face, because if you talked to me like that face to face I would break your fucking neck.

      • Yikes. Calm down, guys. This hardly advances anything. Nobody should be hating anybody for legitimate opinions.
        Actually, I’ve found that one almost never uses invective face to face, because there’s a real human being there, and the Golden Rule kicks in.

        Why does this issue, above all others, always get personal? (I know, but I’ll ask anyway.)

        • See, that’s the thing. I fail to see their comments as legitimate anymore. We talk about signature significance on here every now and again, and literally years of commenting on dozens of posts including hateful language has, in my mind at least, led me to take arguments, even arguments I see as legitimate from other people, as illegitimate from these two because they don’t see gay issues through a lens of reason. I think they see it through a lens of hate, and try desperately to find ways that are ‘acceptable’ to the mainstream to criticize anything gay, and then every now and again devolve into really hateful rhetoric.

          I mean, in gender issues, I often say that if you take a situation and change the paradigm from man-woman to whiteguy-blackguy, and all of a sudden it appears racist, it’s probably sexist to begin with, you just don’t recognize it. What these two do on a fairly regular basis is ethically indistinguishable from calling a black person a nigger, and then they sit back and say ‘no no, I don’t hate them’.

          This gets personal, because we’re talking about people. I’m gay. It’s probably the first time I’ve said this on here, it’s probably the last time I’ll say it on here. And I’m tired. I’m tired of lying. I’m tired of not being able to bring my boyfriends home at Christmas, because I got a front seat to how my family acted when my uncle came out. I’m tired of being afraid of losing my job, because my boss has a bible in his desk drawer, and wears his religion on his sleeve. But that’s me. Those are issues I have to deal with. I’m of the opinion that there are people braver than me that can fight those fights, and that there are people that just aren’t going to get it, and eventually they’re going to die and their children will be better people.

          There are legitimate reasons to oppose gay marriage, and I’ve gone on record saying that forcing a baker to make a wedding cake, or a pastor to perform a ceremony is unacceptable. But there are people who hate gay people just for who they are. Those people are unreasonable. That’s their distinguishing characteristic. So maybe it bothers me, deep down, when someone posts on here, a place of reason, some snide comment about the ‘brown, stinky tide’ that is going to overthrow America is we don’t allow the moral police to take over, and end out culture of permissiveness like it’s a legitimate, thoughtful commentary on the issue.

          My one big regret is timing. I wish I had called it out earlier. Perhaps last week, when Steve-O said:

          ‘Tsk, tsk, and I was so hoping McConnell’s first words as Majority Leader would be “Let’s roll back the brown, stinky tide!”. Just joking. I am still a social conservative, but there’s a right and a wrong way to do social conservativism. The right way starts with getting a message out there that the voters will grab onto, like beating ISIS abroad, decisively, and cleaning up the financial mess at home. When the people feel like this nation is strong militarily and financially again, then we can start saying the nation needs to look to its morals and reverse this permissive culture.’

          But I do feel better for having said it.

          • I understand. I have directly questioned SMP about his “deviant” rhetoric, and Steve-O regarding his “brown stinky tide” phrase. I feel I know both of these readers a bit because of what they have written elsewhere. Since they are generally fair, logical and compassionate, as well as learned and well-read, I view their seemingly intractable biases—and it is a bias—in this area emblematic of the deep taboos being finally discarded by our culture, and how hard it is, for some, to do it. People I love and respect, in my own family, have said things not all that different from what the two Steves have written here. Of course you take it personally, and I would be surprised if, upon reflection, these two men, if asked “What would you say to someone who described you in the terms in which you repeatedly describe gays?”, would be hard pressed to argue that “fuck you” would be unreasonable.

            • And would you be surprised if asked “What would you say to someone who said “fuck you” to you three times?” and the response was also “Fuck you,” or a punch in the mouth?

                • I’m also an attorney, and I wouldn’t hesitate if confronted by this kind of behavior, which I have been. At one point the city fire chief had to have his arson investigators step in to prevent a union rep and myself from fighting after a discussion became heated, and another time another attorney threw a brief at me in court, and, but for the intervention of the court officers he would have been looking at getting very badly hurt. Those who make things personal really have nothing to complain about if things end badly.

            • And how have I described “gays”, Jack, except in terms of hard realism? It was their ultimate choice to become what they are and to make of themselves a burden and danger to decent people everywhere. I could say exactly the same for communists (and their ilk) and Islamists. In fact, I often do. And I’ve pointed out WHY. My outlook and attitudes towards these perversions of the human spirit (and all three are… which is why the remain de facto political allies) are not based on the oft referenced “biases”, “sexism”, “homophobia”, etc., but on plain, self-evident truth. If that offends, then offend it must. BTW: I had nothing against Humble Talent until he started throwing the “f” word at me from right out of the blue. Again; his choice.

              • “Perversions of the human spirit”?!? I don’t even pretend that I have one, much less, that it can somehow be “perverted”. By what magic revelation can you come to that conclusion?

                How are gays “a burden and danger to decent people everywhere”??? Gay is even harder to catch than Ebola.

                They leave me alone; I leave them alone. They are friends, colleagues, and clients, and I freely accept them for what they are. And if I have an inalienable right, by what right do I deprive others of the same right?

                What you call “the Pervert Agenda,” I call practical application of Jesus’s teachings.

                  • Homosexual relations are surprisingly common in the animal kingdom. We are merely animals, with the evolutionary benefit of opposing thumbs. And those women who are into anal sex report that they are more likely to achieve orgasm:

                    In the hopes of answering that question, he checks out the orgasm data and finds: “Among women who had vaginal sex in their last encounter, the percentage who said they reached orgasm was 65. Among those who received oral sex, it was 81. But among those who had anal sex, it was 94. Anal sex outscored cunnilingus.” [You can read the data for yourself if you don’t believe it: Table 5, Pages 357-8.]


                    Go figure. Human sexuality is not as simple as Steve-O’s black-and-white mind is capable of making it. Some men (like you) are attracted to other men. Others “swing both ways.” Steve-O may well be bi-curious, which would tend explain his extreme animus (driven by a fear that he might be gay). Others like me are only attracted to ladies. It might have something to do with the pre-natal environment. Who knows, and why should the rest of us even care? My salvation is not their problem, and vice versa.

                    • What are you, 13? Implying that someone must be gay himself because he is strongly opposed to gay behavior is older than anyone on this site, and simply untrue. Is that all you have?

                • My reasons and conclusions- which don’t require much beyond common sense and a working knowledge of human nature to decipher- are well documented elsewhere. I don’t see the need to post the equivalent of a half hour lecture here. Besides, it would do little good in your case. Anyone with enough audacity and depravity to invoke the name of Jesus as a justification for conduct known to Christians as “an abomination” would be unswayed by any words of mine or anyone else’s. Frankly, Justin, you either have to sink pretty low or be the talking stooge of those who have sunk themselves to make such an assertion.

                  • Common sense and scientific observation both counsel strongly against your position. In Biblical times, the main challenge of every society was to maintain a stable population, and their marital practices were designed to maximize births. Ironically, the Catholic’s preferred method of birth control (coitus interruptus) was known as “the sin of Onan.” Their marriages were arranged, as girls were effectively sold off to wealthy men, and sex began at or before the first menstrual period. Polygamy was common, and that made a lot of sense for them. They also had a taboo against having sex during menstruation (it helps to alleviate cramps!), mostly, because they believed that semen should be used to make babies.

                    That was then, this is now. Today, the problem is one of over-population. The onset of sexual activity would often be delayed by a decade or more if we held fast to objectively silly Biblical rules, which we have abandoned or modified creatively ( — NSFW!!!). Owing to population pressures and the technology of gender selection, China may be the first country to embrace polyandry.

                    Steve-O: ” Anyone with enough audacity and depravity to invoke the name of Jesus as a justification for conduct known to Christians as “an abomination” would be unswayed by any words of mine or anyone else’s.”

                    Your god also hates divorce. Mal. 2:16. And should we forget the words of Paul: “All things are lawful for me, but all things are not expedient: all things are lawful for me, but all things edify not.” 1 Cor. 10:23 (KJV). For good or ill, America has embraced the ethos of Matt. 7:12: In everything, “do to others what you would have them do to you, for this sums up the Law and the Prophets.” As a society, we generally believe that you are endowed with the freedom to sin, as long as your actions do not injure others.

                    Admittedly, we have not embraced Jesus’s directive perfectly, as too many like you wish to impose your wills on others. What would Jesus say, when confronted with the policy of school prayer? We presumptively know the answer: “And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by others.” Matt. 6:5. But to hear conservative Christians tell it, our act of following Jesus’s clear teachings on prayer has driven us to hell in a hand-basket. (Similar arguments could be made for “victimless crimes” like prostitution and marijuana use, but those are better discussed in a libertarian blog.)

                    Conservative Christians like you are like your Talibani cousins: You want to impose a theocratic state. But if you would not enjoy living under the traditional Islamic caliphate, it logically follows that you should not impose your religious views on OUR society. I have never understood why their first marriage should infringe on the sanctity of your fourth, conservative Christians.

                    Jesus supposedly said what he said, and Rabbi Hillel said the same thing: “What is hateful to you, do not do to your fellow-man. That is the Torah. All else is interpretation.” Matthew 7:12 is remarkably Hinayama, and it advocates a secular society with a maximum of personal liberty. That you have removed it from your Bible with an X-Acto knife is not my concern.

                    • Get your Steve’s straight. I never once made reference to Christ or quoted the Bible and I never said what you attribute to me above. The other Steve is the Bible-thumper. I’m just the one who can’t grasp the appeal of doing certain things. It doesn’t look good when you are so busy being a sarcastic jackass and patting yourself on the back for being the smartest guy in the room that you miss a basic fact.

              • I think this has settled down a little, so I’m going to stick my neck back into it.

                I think there’s something absolutely morally and intellectually bankrupt in seeing no problem in impugning an entire subset of people, but having a problem with the word ‘fuck’. Your comment comes across like had I called you a bigoted ass, we wouldn’t have a problem. But then I used dirty language. I don’t think you realize just how juvenile that really is. “I can’t argue with what he said, but he said it really really mean, so he’s wrong!”

                And I have no idea how twisted your world view has to be to spout this garbage. I mean…. Gays, Communists and Islamists…. allies? Really? Because nothing says friendly like chopping the heads off the guys on your side, right? Gay being a choice…. Against years of science, and common sense… I mean, if being gay is a choice, so is being straight. At what point in your life did you decide not to be gay?

                I don’t know what else to say, except that ‘homophobia’ is a misnomer. You aren’t afraid of gay people, you’re just an ass. You can disagree with my labels, you can disagree with my language, but labelling an entire subset of the population deviants who pervert the human spirit, and then saying you have nothing against them, a) doesn’t make it true, and b) is hateful. You are a worse person for those views. You don’t have to believe me, just like I don’t have to believe you. But I will never let you get away from comments like these without a rebuttal. Ever again.

                • Have fun continuing to channel your inner Dan Savage and being the self-appointed guardian of gay rights on this site. Frankly you are wasting your time. You will not sway my opinions by fighting with me or ranting or cursing like we are back on the playground in 7th grade. In that day and age arguments that deteriorated to the level they did this week frequently ended in fistfights when one or the other person reached their tolerance level for the other’s verbal abuse.

                  I was considering moving away from the use of some of the rhetoric I used and trying to keep my position within the use of the various defensible arguments: Federalism, the overreach by the bully lobby, First Amendment, but at this point I will not budge an inch, since you decided to take this from a political debate with some moral overtones into a personal fight. You want to rebut, you rebut all you want, until Jack blows the whistle, but you will not bully me with personal attacks and foul language without me going straight back at you. If that’s what you want, fine, but I think it will just generate a lot of heat and no light.

                  • First off, Ad hominem attacks are ad hominem attacks. Discuss my points, or don’t. If you think you can get away with assuming you’ve scored points by inferring I’m “channelling Dan Savage” you’re mistaken.

                    What I find most interesting, although not at all surprising, is that you think you can hurl slurs at gay people with wild abandon, and then when one of the people you’re slurring tells you to get bent, rudely, I’ll give you. All of a sudden, a line has been crossed! This is juvenile! There needs to be face punching! What absolutely unmitigated gall. Hypocrite.

                    • One can’t discuss “get bent” and a string of “eff yous.” That isn’t a discussion. Discussion is what happens before you get to that. Yes, I say you are channeling Dan Savage, Mr. Eff you himself. That little ditty you typed sounded exactly like one of his literary masterpieces, and it wasn’t written in the heat of the moment, nothing that says three times eff you for this or that is. That was written in a stone cold moment of hate and bile.

                      I’m not interested in discussing your points, because you went beyond discussion and showed yourself to be a hateful, vicious, cowardly person, who has forfeited any privilege of engaging in reasoned discussion with me, the same as I have told other lawyers who have screamed, cursed, or otherwise become abusive that all communication henceforth must be in writing, or that the firm should reassign the file. Spew your hatred elsewhere, each of us knows where the other stands.

                    • Sorry, I was trying to Channel my inner Steve-O

                      “I’m not interested in discussing your points, because you went beyond discussion and showed yourself to be a hateful, vicious, cowardly person, who has forfeited any privilege of engaging in reasoned discussion with me, the same as I have told other lawyers who have screamed, cursed, or otherwise become abusive that all communication henceforth must be in writing, or that the firm should reassign the file. Spew your hatred elsewhere, each of us knows where the other stands.”

                      I don’t agree, and I think it was stupid of you to write that. You took the abuse I foisted at you and blasted back with threats of physical violence, and attacked my family. And now you’re trying to scrabble some moral high ground? Please. All our conversations HAVE been in writing, and they will continue to be, if at any time that isn’t acceptable to you, just stop.

                • First I see Justin’s long rant (queer talking points from their playbook and the obligatory cherry picking from the Bible) and can dismiss that out of hand. Everybody’s seen that rant before and ought to know the worthlessness of it. The “moment of truth” comes when he refers to “your god”, thus revealing himself as a pagan with no principles.

                  Then we come to “Humble Talent”… who is neither humble nor particularly talented. All Humble does here is to delve deeper into the playbook, while adding emotional arguments that border on the hysterical. Obviously, I did a hit & run on his (her?) favorite unicorn.

                  Yes, dear… there ARE moral absolutes. The cause you try to defend is a case in point. Men and women performing filthy and destructive acts upon one another- consenting or not- and with children, animals, etc. pretty well tops the list.

                  “Intellectually bankrupt” is a term leftists use on others to bolster their own egos and sense of self-worth when faced with a defiance of their own moral “bankruptcy” and lack of any sense of reality.

                  “Bigotry” is a common epithet among your grouping in reaction to just about anything that doesn’t meet with the liberal “theology”. Were I to attack another on characteristics over which he had no control (racial, disease, etc.), then we can discuss bigotry. When we talk about one’s actions and agendas- things that are ultimately the result of a conscious decision- then the term becomes invalid. I reserve the right to discuss and criticize deeds and words affecting my life and that of my fellow citizens in a frank manner. I do not intend to be chained by the authoritarian strictures of political correctness, which I consider to be as much of an abomination as the Pervert Agenda; the two being in collusion. I hold only to moral restrictions by refraining from profanity the best I can when discussing even the grossest of human conduct.

                  “Common sense” is not your ally, but your implacable foe. No healthy society has ever upheld deviancy, as its societal and physical consequences become readily apparent… as they do today.

                  I’ve spoken previously of an “alliance” between the essentially atheistic Left and the Islamist movement. Note that this “cameraderie” exists only in those countries where Islam is a distinct minority, but intends dominance- as it always does. The two groups have two major points in common: Their hatred for human freedom and the moral concepts of Judaism and Christianity. Thus, where free societies exist on a basis of Christian ethic, they often work in common for its elimination. Where it does not exist- or where it has been successfully eliminated- their common purpose immediately breaks down, as they have nothing else in common. This is an alliance of convenience and nothing more. In the West, leftists commonly revert to their role as “useful idiots” for a movement which has their own destruction in mind as the final goal.

                  “Homophobia” is another invented epithet from the leftist lexicon to be thrown at any who trespass against their established notions. You’re right. I’m not afraid of homosexuals, per se. Disgusted? Yes. But I do fear the destructive power of their movement within the Leftist Agenda. Thus, I work against it, realizing that it represents the most vile visible aspect of the overall movement which can be described in one word: Decadency.

                  This is the movement that you support, Humble. When I have the time to comment on these questions, I will. All too often, I do not, owing to an often heavy work load. But you can “rebut” all you wish. That’s your right. The people and society you despise won it for you.

                  • Res ipsa loquitur. But I’m going to go for it.

                    1. “Then we come to “Humble Talent”… who is neither humble nor particularly talented.”

                    I’m glad you noticed.

                    2. “Obviously, I did a hit & run on his (her?) favorite unicorn.”

                    His, and we’re going to disagree. I don’t believe that the notion that gay people are people who don’t deserve scorn just for being gay is a unicorn.

                    3. “Men and women performing filthy and destructive acts upon one another- consenting or not- and with children, animals, etc. pretty well tops the list.”

                    My lord…. Filthy and destructive. At the end of the day, I don’t even have to refute that. I just need to point out that if you think it’s filthy and disgusting. Just don’t do it. Don’t think about it. It’s in every sense none of your business. As for children and animals…. We’re getting close to childishness. Gay people aren’t pedophiles, and they aren’t… beastophiles? I don’t even know the term. But you know what? I believe that you actually believe this. And you have my pity.

                    4. ““Intellectually bankrupt” is a term leftists use on others to bolster their own egos and sense of self-worth when faced with a defiance of their own moral “bankruptcy” and lack of any sense of reality.”

                    I also called you morally bankrupt. As hateful people are. The bible is full of so many contradictions it really is up to individuals to interpret them. In the old testament, the food laws were outlined (no eating pork or shellfish) and then in the new testament, Jesus said that because food passes through you, nothing you eat can be sinful. Leviticus says gayness is an abomination, but Jesus says to love your neighbor, without caveats.

                    But what I really take issue with is the inference that I’m a lefty. I mean…. Anyone want to take a running swing at this? If you take the last two years of my commenting on here, and you wanna call me a lefty because I don’t hate gay people like you do. You are per se exactly why the left is so successful at designating gay marriage as a conservative issue, and deluded besides.

                    5. ““Bigotry” is a common epithet among your grouping in reaction to just about anything that doesn’t meet with the liberal “theology”. Were I to attack another on characteristics over which he had no control (racial, disease, etc.), then we can discuss bigotry.”

                    You have an awful habit of ignoring what I actually say to suit your argument. Being gay isn’t a choice. Trust me. I don’t think anyone in history has every rolled out of their beds and said: “Y’know what? I think today is a great day to join the ranks of one of the most discriminated against groups in humanity.” Choice. Answer my question: At what point in your life did you CHOOSE to be straight?”

                    6. ““Common sense” is not your ally, but your implacable foe. No healthy society has ever upheld deviancy, as its societal and physical consequences become readily apparent… as they do today.”

                    Except the ones that do and did. I mean, if you want to say that poor treatment of homosexuals is the best indicator to how well a society does morally, please comment on Saudi Arabia, who’s government fairly routinely kills gay people. And Canada, where gay marriage has been legal across the nation for 14 years. Your vacuum ramblings don’t hold up to reality.

                    7. “Their hatred for human freedom and the moral concepts of Judaism and Christianity.”

                    Right, our hatred for human freedom. I think it was at about this point in your ramble I realized that you really don’t see this issue from any objective point of view. You want to dictate what two consenting adults can do in their bedrooms, but WE hate freedom.

                    8. “I’m not afraid of homosexuals, per se. Disgusted? Yes. But I do fear the destructive power of their movement within the Leftist Agenda. ”

                    Again with the lefty comments. But at least you’re an honest bigoted asshole. And before you start ranting about how your feels are hurt because I called you an asshole, I need to point out that you just called me disgusting in that sentence, never mind previous comments about deviant, pervert, pedophile, beasiphile, and worst of all: Liberal. You can live with being called an ass. At minimum.

                    9. “This is the movement that you support, Humble.(a) When I have the time to comment on these questions, I will. All too often, I do not, owing to an often heavy work load.(b) But you can “rebut” all you wish.(c) That’s your right. The people and society you despise won it for you.(d)”

                    a. Damn right.
                    b. Hating people must be hard work.
                    c. Damn right.
                    d. Forgive me, but I don’t despise anyone. You frustrate me thoroughly, but outright hatred is so…. difficult to maintain. You aren’t worth the effort. And I’ve said it before, and I’ll say it again. You are absolutely, utterly irrelevant. You, and people like you are a throwback to puritanical modes of thought that are outdated, and on their way out. One day, you’re going to die, and there won’t be another bigot to replace you. Your children, and your children’s children will do better. It happens slow. But it happens with every civil rights movement. You’ve lost. You just don’t know it yet. Our children will be more free to be the people that they were born to be, who knows, they might even like each other.

            • Wow.

              Is this a valid ground for banning Steve-O, Jack? Not only has he crossed the line repeatedly, he is openly stating his intention to do so repeatedly in the future and almost certainly, disrupting discussions in the process.

              Reading some of the old posts, it is clear that you have banned others for less.

              I am coming out of the closet as a heterosexual. There. I’ve said it. I don’t understand Steve-O’s animus toward gays, and can’t imagine what he is so fearful of. I always liked the advice of the General in “Good Morning, Vietnam”: “If you two have problems with that, solve ’em.”

              • No. He’s not going to want my defense, and I’m trying to disengage, but please do not use this conversation to ban future conversations. I hate censorship in general, and there’s a big difference between random idiots coming in here spewing vitriol and Steve-O. Plus… I goaded him pretty hard.

              • Steve has immunity until he crosses a line he has not yet crossed. He has contributed much of value here, and has, like SMP, accumulated privileges. As I demonstrated with Ablative Meatshield, a.k.a. Scott Jacobs, I believe that occasional passionate invective can have substantive value, as long as it doesn’t stifle discussion. I will ban a stranger from my house if he insults my wife; a long-time friend gets more rope.

                I agree that threats are especially bad. I will monitor the situation. A direct attack like HT launched, whatever the provocation, has consequences, and he can’t be surprised.

                • Thanks, and although I did joke about succeeding Mr. Jacobs after he left the blog you did say you wanted that particular “slot” retired. Passionate invective as well as damning with faint praise, satire, sarcasm, and other devices have their place. That said, it’s not ethical to do something permanently stupid or damaging because you are temporarily upset, which is why I’m glad neither of those situations ended up where they could have. I am not interested in testing or even finding out where the line is, and it’s in no one’s or the blog’s best interest if things deteriorate any further (not that there was that far to go).

                • Baseball fans have a term for that: “The Greg Maddux Strike Zone.” No umpire would ever cop to doing it, but everybody knew that Maddux could throw anything short of a pick-off move to first and you’d still get rung up.

                  The problem: Unlike the Bums in Blue, you had to cop to it.

                  Here’s the trap I see: While you run this blog, and we understand that you can do whatever you damn well please here (volenti non fit injuria), as an ethicist, you are held to a higher standard. And in effect, by giving Steve a pass, you appear to be committing the same you routinely roast others for: applying one standard when you police your friends and allies and a less-forgiving one to your critics.

                  I don’t think HT was out of line at all. Steve-O’s comments were faintly reminiscent of John Rocker’s. At least, Steve-O came out of the closet.

                  • Yeah, I have to draw lines. My goal is to have as many voices and points of views articulately presented. You will find that I have banned as many of those who usually agree with me as those who usually don’t. The cutting point has always been preceded by a warning. Follow the comment guidelines, and you don’t get banned. If I tell you to stop doing something, stop doing its. And yes, one builds up good will, as Steve-O has. You read his last response to the thread—I would expect no less. Most people who get banned here make personal attacks on me and my integrity, which I don’t tolerate well, and shouldn’t have to. Or they keep saying the same thing over and over, making speeches and not engaging, after I have told them enough. When I ban someone, like Art Hawley of late, I explain why. I don’t like to do it. My default instinct is not to do it. Anyone can get re-instated by apologizing and assuring me that that the conduct that got them banned won’t recur. Several regular posters here have come back from limbo.

                    I gave both Steve and HT a pass. Generally shouting “fuck you!” at a commenter will get a warning; doing it to me gets a trip[ to spamville. I made an exception, under the circumstances, for HT, and I explained why. That led to more rope for Steve, which he stretched to its limit.

                    • If we are to remain conversing here, we need to know the guidelines you intend to follow. I thought it was a fair question to raise.

                    • The guidelines are published and clear. I reserve the right to use discretion in applying them—for example, we are light, of late, on articulate progressive/liberal commenters. That’s why Art lasted as long as he did despite coming perilously close to trolling. You can check the final posts of anyone banned here, and it’s pretty obvious why. There’s nothing arbitrary, and those banned were usually on the cusp for a long time. Many of the most honored commenters here have tended to be the most relentlessly critical. But they were civil, honest, and eschewed political rants.

                      My choice is to do what most bloggers do, and just let commenters talk to the air, or promote a dialogue by actively engaging them. I choose the latter, but that means I am not going to tolerate obnoxious conduct indefinitely.

            • I intend to make the rest of your time here a living hell.

              Perhaps you’d care to retract that remark, pleading provocation as mitigating circumstances (as opposed to an exculpatory excuse).

              IMHO It was unworthy of you – but even Jove nods.

              I hope I never cause our esteemed blog proprietor such grief, and if I do, then I hope I’m shown some mercy.

              • I think this thread speaks for itself. None of us acted particularly worthy today. If nothing else, this is a clear illustration of the width of the chasm between the two sides, the impossibility of bridging that gap, and the extremely destructive battles that result when the two sides engage.

                • Steve, you cannot possibly believe that such a gap can’t be bridged. Its being bridged every day—the culture has moved toward a position that would have been completely unimaginable just 20 years ago. When cultural upheavals take place that fast, there is usually a good reason, the good reason usually is that the chasm isn’t as deep, wide or unbridgeable as we thought.

                • The thing is… When you hold views against an entire group of people, simply for being who they are, and you’re looking at it like a chasm, you imply that there is ground to give on both sides. I disagree, it’s really hard to compromise when you’re talking about personal identity. The bridge really does have to come from one side. Gay people can’t be less gay, black people can’t be less black, women can’t be less female.

                  I think part of your response will be on issues like gay marriage, and gay pride parades. And the elements of coercion the gay lobby hoists. Coercion is always wrong, and the gay pride parade is tacky beyond belief, but I think you mistake the very few very vocal fundamentalists as the mainstream. And you have a right to think that way! Most of the people not in the spotlight are in the closet. Gay people as a whole, we probably police our crazies poorest of any group you can think of. But it’s not helpful to think that way. Realize, that something between 2 and 10% of the population is postulated to have homosexual tendencies. The low estimate… 2% of America is about 7 million people. The people fighting bakers and strutting banana hammocks at pride parades AREN’T the majority. The majority is just really really quiet, probably because unlike black people or women, it’s relatively easy to hide being gay, and we don’t want the hate.

  7. As I have alluded to before, I lurk at Judge Kopf’s blog. What would you say in response to his learned opinion?

    As for my “STFU” and “dirty old man” posts, you are entirely right, they weren’t my best work out of over 700 posts. Sorta like Judge Sutton’s opinion in the gay marriage cases–awfully embarrassing for the weak legal reasoning, coldly insensitive to gays and their children, dismissive and therefore bordering on the disrespectful to his colleagues on the other Circuits, and self righteous. Even you must admit that it is not his best work compared with the hundreds of erudite opinions he has authored in the past.

    We federal judges make massive mistakes all the time, and when we do we ought to take tough and pointed criticism like big boys and girls. After all, that’s why we have jobs for life. Transparency requires all of us to toughen up and that applies equally to Sutton and me.

    • I think he’s right, although Kopf’s STFU was in a whole different category of unprofessional and unjudicial, and I stopped regarding him as worth reading after that.

      I think he’s right about the whole opinion and its result—I think the section flagged by Volokh regarding “rational basis” is well-argued.

      • So, you would not forgive a judge for the occasional indiscretion? Do you apply that “one-and-done” rule across the board? As they are all sinners, you could never grant any of them absolution. Frankly, having read his blog for a while, I am of the opinion that Kopf is everything you could ask for in a federal judge.

        The fundamental problem with the gratuitous exposition on rational basis jurisprudence is that it is about as relevant to the case as the dimensions of the Playmate of the Month. That is what I got out of Scalia’s dissent in Lawrence: Given that the right to marry was deemed “fundamental,” once you concede that the right to engage in an act of consensual sodomy is also fundamental, any legal argument for banning SSM is gone, because legislative abridgments of those rights must survive stricter scrutiny. You have to get to the path before you can travel on it, and there is no legally valid way for a judge to get there — and Judge Sutton reasonably should have known this. It was, as Judge Kopf opined, “awfully embarrassing,” not just for him but the federal judiciary as a whole.

        In addition, I don’t think the scholars were as kind as you credit them as being. As you write, “Professor Ilya Somin, writing here, believe that same-sex marriage bans still fail the Equal Protection test notwithstanding a strong case for meeting what the Sixth Circuit calls the “low bar” of rational basis review.” And so that we can be clear, here is what Prof. Somin wrote:

        But it is also worth taking the time to assess the opinion on the merits, especially since the author – Judge Jeffrey Sutton – is a prominent and highly respected conservative jurist. Unfortunately, the opinion is not very strong, and is unlikely to persuade or even give much pause to anyone who doesn’t already agree with its conclusions.

        Most of Judge Sutton’s analysis is devoted to showing that laws banning same-sex marriage can meet minimal “rational basis” scrutiny. On that point, I think he is likely right. But it elides the reality that the strongest arguments against such laws is that they should be subject to heightened scrutiny, either because they discriminate on the basis of sex, or because they do so on the basis of sexual orientation.

        It is sound analysis, as long as you have a rational basis case. Here, as everyone knows, you don’t have one. And that is why he is being beaten up as a right-wing hack: Sutton is a highly competent jurist, not prone to making mistakes first-year law clerks would be pilloried for. Think of it this way: He’s too capable to do something this stupid by accident.

        • 1. My point was and is that the opinion, right or wrong, did not emanate from anti-gay, right wing bias.
          2. Everything? I could ask the a Federal Judge not show utter disrespect for the Supreme Court in a public forum, and do so in a vulgar and obscene way. I could ask that such a judge have the sense to apologize, or at least acknowledge that this is bad for the system, public respect for law, and the integrity of the justice system.

          • 1. My point, as elaborated above, is that the evidence before us strongly suggests otherwise. It’s Steve-O-level social conservative bias, plain and simple.

            2. Being a federal judge means you don’t have to apologize for anything. After all, what can they do to him? He has life tenure.

            Seriously, if you feel that way about Judge Kopf, why don’t you lodge a complaint with the Judicial Council in his Circuit? While I disagree with him on that point and cringe at how he expressed himself, I can’t say that he should be black-listed for a good faith expression of opinion, even if he dropped a Biden Bomb. As one commentator on his blog put it,

            The only way to repair the judiciary’s justifiably-ravaged reputation is to fix the judiciary. From my perspective — and old hound like me has learned to value substance over image — Judge K has been trying to make a difference, and if he stirs up a few hornets’ nests, it can only be a good thing. Personally, I think he swallows his whistle too often.

            Judge Sutton deserves to be pilloried for that obviously religiously-motivated and outcome-based decision. It is a duty of bench and bar to call out absurd decisions like that, with the purpose of slut-shaming judges into compliance.

            (As an aside, I love the word “pilloried.” Confession: I had to look it up.)

            I don’t agree that the public criticism of judges, even when indecorous, is “bad for the system, public respect for law, and the integrity of the justice system.” Decisions like Sutton’s are far more corrosive, especially when colleagues “swallow their whistles,” as they call the integrity of all judges into question.


              Although the Left disparaged the Traditionalist Youth Network, LLC, for arguing for tradition and invoking the judicial philosophy of originalism, the Sixth Circuit invoked originalism—they called it “original meaning”—and stated rather overtly, “Tradition reinforces the point.” Judge Sutton also referred to “thousands of years of adherence to the traditional definition of marriage” in his written opinion, which echoes the sentiment espoused within our brief: “[T]he Western and American legal traditions have proscribed sodomy—much less same-sex marriage—for thousands and hundreds of years, respectively.” Not surprisingly, Judge Sutton mentioned the importance of tradition in the very first paragraph of his lengthy written opinion: “[M]arriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.”

              Also, our brief pointed out that sexual deviants with proclivities stranger than those even of homosexuals could demand the “right” to marry if the Court ruled that states cannot constitutionally regulate marriage, and the liberals mocked us for making the “slippery slope argument.” Well, Judge Sutton agrees with us, which is evinced by what he opined in his opinion: “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.” How do you liberals like them apples?

              We argued that the Fourteenth Amendment to the United States Constitution guarantees rights “so long as those rights are deeply rooted in history and tradition,” and Judge Sutton wrote that “the test is whether the right is ‘deeply rooted in this Nation’s history and tradition[.]’” Fancy that!

              The ideals of the late Michigan attorney and philosopher Francis Parker Yockey were palpable in our amicus brief, because the brief directly took on the “Culture Distorter.” The lesson to be learned from this case—which is more important that the Sixth Circuit’s ruling itself—is that when right-wing nationalists seriously and fiercely defend their philosophy, they can win. The dynamism of the Faustian Soul that beats in the hearts of the Men of the West will not be stilled by the degenerate totalitarianism of the modern Left.

              The Western Legal Tradition is a product of thousands of years of jurisprudence created by our Germanic, English, Roman, and Byzantine forefathers, and it is ours to protect and cherish—or it will die as our nations are dying due to a combination of apathy and liberalism.

              To borrow a quip from the conclusion of our amicus brief, “It is high time for the mockery of our ancient and traditional European institutions and customs to end.”

              Now just because the Judge used the same reasoning and similar language to the White Supremacist amicus curiae brief does not necessarily mean that they came to that decision purely because it is an Ultra-Conservative position. There may be evidence to the contrary, if the position is particularly strong. If it’s weak though….

              • Let’s just say that because the National Socialist German Workers’ Party (NSDAP) was in favour of a good road network does not mean that those in favour of good road networks are necessarily “Right Wing Nationalists”,

                But to say that a program of building Autobahns is not a Right-Wing Nationalist position is incorrect. That doesn’t mean it’s necessarily a bad thing though.

  8. ALERT: Speaking of Scalia, I just posted this correction in the essay above:

    Correction: in the original version of this post, I stated that Justice Scalia joined the majority in Lawrence v. Texas, 539 U.S. 558 (2003), which struck down anti-sodomy laws as an unconstitutional violation of privacy, as well as an Equal Protection breach. That was wrong, and stupid too, because it was easily checked. I apologize for the error.

    • See previous comment -“Even Jove Nods”.

      Perfection is not required, nor can it be reasonably expected. A reasonable degree of care, and early correction when error is detected are both requirements though, and it’s not unreasonable to expect them.

      You met those requirements, so all we have to do is thank you for your sterling efforts. I hope I meet the same standard. I know I try to.

    • That’s okay. We forgive you. But my point still stands: Scalia told us that this outcome was legally inevitable. As for incest, bestiality, polygamy, and other non-sequiturs in his parade of horribles, even under strict scrutiny, legislation prohibiting it would stand. After all, how could your horse (you do remember the e-mails telling us about all the amazing things little Suzi was doing with horses?) give and communicate informed consent, unless he was the famous Mr. Ed?

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