44 Years Later: Loving Vs. Virginia

SCOTUS Rejects DC Marriage Suit

The Supreme Court has declined to hear the appeal of Bishop Harry Jackson, whose lawsuit demanded that Washington DC residents be allowed to vote on same-sex marriage.

The court did not comment Tuesday in turning away a challenge from a Maryland pastor and others who are trying to get a measure on the ballot to allow Washingtonians to vote on a measure that defines marriage as between a man and a woman. Bishop Harry Jackson led a lawsuit against the district's Board of Elections and Ethics after it refused to put that initiative on the ballot. The board ruled that the ballot question would in effect authorize discrimination.

It's unclear what, if anything, today's news may mean regarding the Supreme Court's position on same-sex marriage in general.

Supreme Court Justice Elena Kagan

Elena Kagan was confirmed by the U.S. Senate this afternoon in a largely partisan vote of 63-37. Kagan becomes the fourth woman to sit on the Supreme Court, despite the ranting protestations of virtually all anti-gay groups, especially the Family Research Council's Tony Perkins, who testified against Kagan before Congress. Two solid wins for the good guys in two days! And anguished times for the enemies of equality.

White House To SCOTUS: The Vatican Should Be Immune To U.S. Lawsuits

The White House has issued a brief to the Supreme Court backing the Vatican's claim that they should be immune from child molestation lawsuits brought in the United States.

The Supreme Court is considering an appeal by the Vatican of an appellate court ruling that lifted its immunity in the case of an alleged pedophile priest from Oregon. In a filing on Friday, the solicitor general's office argued that the Ninth Circuit court of appeals erred in allowing the lawsuit brought by a man who claims he was sexually abused in the 1960s by the Oregon priest. The unnamed plaintiff, who cited the Holy See and several other parties as defendants, argued the Vatican should be held responsible for transferring the priest to Oregon and letting him serve there despite previous accusations he had abused children in Chicago and in Ireland.

The Vatican argues that they have no legal relationship American dioceses, only a religious one.

Would Kagan Have To Recuse Herself On Some LGBT Issues?

According to the Advocate, should Supreme Court nominee Elena Kagan be confirmed, she may have to recuse herself from several critical LGBT cases due to prior work on their issues she's done as Solicitor General.

The cases in question include Gill et al v. Office of Personnel Management et al, a suit challenging a section of the Defense of Marriage Act that was argued in federal court last week, and Log Cabin Republicans v. United States of America, a case involving “don’t ask, don’t tell.” Kagan’s ability to rule in those lawsuits as a Supreme Court justice would depend on the amount of input she had in them while serving at the Justice Department. Though neither case is currently before the court, Ronald D. Rotunda, a professor of law at Chapman University, said Kagan might have taken part in the preparation. “She may have had a role in [deciding] how the litigation proceeds, because the government wants to have a proper procedural posture in order to decide what positions it will take,” Rotunda said. This is true for cases across the board. “There is no reason to single out LGBT-related issues," said Richard W. Painter, a professor at University of Minnesota Law School. "The recusal would apply to all cases she was involved with on any issue.”

The above-linked piece concludes that a Kagan recusal from the DOMA case, for example, would likely leave the Court split at 4-4, upholding the law.

Bill Kristol Flips On Kagan Nomination

Kagan On Same-Sex Marriage

JMG reader Matt points us to this dissection of Elena Kagan's Solicitor General confirmation hearing.

In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.
Answer: I do not recall ever expressing an opinion on this question.

This doesn't mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.

The above-linked blogger concludes that having Kagan on the Supreme Court spells doom for the Olson and Boies marriage equality case.

PhoboQuotable - Peter LaBarbera

“If Kagan is practicing immoral sexual behavior, it reflects on her character as a judicial nominee and her personal bias as potentially one of the most important public officials in America. The popular mantra — even among conservatives — is that Kagan’s sexuality is ‘irrelevant.’ But a Justice Kagan would help decide some critically important constitutional issues dealing with: homosexual ‘marriage’ as a supposed civil right; religious liberty and freedom of conscience; and the First Amendment as applied to citizens’ right to oppose homosexuality. So it certainly matters if she, as a lifetime judge, could emerge as a crusading (openly) ‘gay’ advocate on the court." - Peter LaBarbera, demanding that SCOTUS nominee Elena Kagan declare whether she has "personal interest in lesbianism."

LaBarbera has remained notably silent about his butt-buddy Dr. George Rekers, even though a quick search turns up more than ten pages of NARTH citations on his blog.

Obama Announces Elena Kagan

Sotomayor, Part II?

Media Matters reminds us what the right wing put Sonia Sotomayor through before her confirmation to the Supreme Court and wonders if we're about to go through it all again.

Catholic Group Opposes Kagan

Catholic Families For America (whoever THEY are) has issued a nasty press release denouncing the president for selecting Elena Kagan for the Supreme Court.

"By nominating Miss Kagan to the Supreme Court, the president continues to demonstrate a brass-knuckles, Chicago-mobster mentality toward unifying our nation," said Dr. Kevin Roberts, executive director of CFA. "Naming someone who has been so actively hostile to traditional marriage and to the unborn lays bare the president's pro-abortion, anti-family agenda, in spite of what he says to the contrary." Roberts also expressed considerable angst over Kagan's lurch toward so-called "international law," which he described as "a disturbing, fashionable trend among leftist jurists." He explained further, "By citing foreign laws in their American jurisprudence, liberal judges not only violate the sovereignty of the American people, but also advance a dangerous assault on the notion of the family.

Blah, blah, blah.

Obama To Tap Elena Kagan For SCOTUS

By now you should have heard that the president will be nominating U.S. Solicitor General Elena Kagan to the Supreme Court.

President Barack Obama will nominate Solicitor General Elena Kagan to the Supreme Court, positioning the court to have three female justices for the first time, NBC News reported late Sunday. Kagan served as the Dean of Harvard Law School from 2003 to 2009. She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job. At 50 years old, Kagan would be the youngest justice on the court, one of many factors working in her favor. She has the chance to extend Obama's legacy for a generation.

While the dean of Harvard Law School, Kagan banned military recruiters from the campus over DADT. That decision was later overturned by the very body she is now poised to join. Kagan has not yet addressed the rampant rumors that she is a lesbian. The Human Rights Campaign has issued a press release lauding the president for selecting her.

“We applaud President Obama for choosing Elena Kagan to become our nation’s next U.S. Supreme Court Justice,” said Joe Solmonese, president of the Human Rights Campaign. “The U.S. Supreme Court decides cases that intimately affect the lives of all Americans. We are confident that Elena Kagan has a demonstrated understanding and commitment to protecting the liberty and equality of all Americans, including LGBT Americans.” Issues that are critical to the LGBT community may reach the Supreme Court in the next few years, including issues related to marriage equality, the “Don’t Ask, Don’t Tell” law, the Defense of Marriage Act, and the new federal hate crimes law. When issues like these come to the Supreme Court, it is vital that we have fair-minded judges to rule on these cases.

Supreme Court: The Boy Scouts Are A Religious Organization

The Supreme Court has refused to hear the appeal of a lower court's ruling that the Boy Scouts of America are a religious organization. The earlier ruling came over a dispute about the Scouts renting city-owned land in San Diego.

U.S. District Judge Napoleon Jones Jr. ruled in 2003 that San Diego acted improperly when it leased 18 acres of camp space to the Scouts because the group is a religious organization. The judge said the lease violated federal law that prohibits the government promotion of religion. The Boy Scouts say they have no theology and only hold the position that children should "do duty to God" to become productive citizens. The American Civil Liberties Union had sued San Diego and the Boy Scouts in August 2000 on behalf of a lesbian couple and an agnostic couple, each with scouting-age sons. They filed the lawsuit after the City Council voted to extend the group's 50-year lease for another 25 years. The Boys Scouts have been the target of preferential treatment lawsuits since the U.S. Supreme Court ruled in June 2000 that the group has a constitutional right to exclude openly gay men from serving as troop leaders and because it compels members to swear an oath of duty to God.

The leadership of the Boy Scouts of America has been infiltrated over the last two decades by highly-placed members of the Mormon Church. Virtually all of its board of directors are LDS officials.

UPDATE: I want to roll back that "virtually all" bit from the last sentence above until I can find the proper substantiating link. The best info I can find at the moment is a 2001 claim that 24 of the 72 BSA National Council members are Mormons, but I'm quite sure that I read very recently that that number is now over 50. Does anybody recall where that came from?

RELATED: Last week the BSA was ordered to pay $18.5M in punitive damages to man who was molested by a Scout leader known by his superiors to be a pedophile.

EARLY REPORT: Supremes "Skeptical" About Protect Marriage's Argument

According to early reports from today's Supreme Court hearing of the Referendum 71 case, justices on both sides of the ideological aisle are rather skeptical of Protect Marriage's claim that violent homosexuals will rain down retribution on the signers of the anti-gay petition. Even Scalia seems to be on the correct side.

Supreme Court justices from the left and the right were skeptical Wednesday as a lawyer for religious conservatives argued that Washington State has no right to release the names of the 138,000 residents who signed ballot petitions to overturn a same-sex domestic partnership law. Associate Justice John Paul Stevens dismissed the arguments as "touchy feely" and Justice Antonin Scalia said "Democracy requires a certain amount of civic courage." James Bopp Jr., a lawyer for Protect Marriage Washington, argued that those who signed the petition for Referendum 71 faced harassment and intimidation from gay rights groups if their names were released and maintained the right to privacy trumped the public's right to know. Washington Attorney General Rob McKenna, who argued for the state, also faced tough questioning as he maintained the voter approved Public Disclosure Act required the release of the names and there has been no evidence of harassment or intimidation.

The Court's decision could affect the transparency of the referendum process in every state.

SCOTUS To Hear Case Of Gays Barred From Christian Club At California Law School

The Supreme Court will hear the case of gay students who were barred from joining a club at the University of California's Hastings College Of The Law in San Francisco.

The college, which requires officially recognized student groups to admit any Hastings student who wants to join, may be well-meaning, says the student outpost of the Christian Legal Society. But the group contends that requiring it to allow gay students and nonbelievers into its leadership would be a renunciation of its core beliefs, and that the policy violates the Constitution's guarantee of free speech, association with like-minded individuals and exercise of religion. "Hastings' policy is a threat to every group that seeks to form and define its own voice," the group told the court in a brief. The case, Christian Legal Society v. Martinez, will be argued in the Supreme Court Monday morning. Hastings counters that the CLS, a national organization that seeks to "proclaim, love and serve Jesus Christ through the study and practice of law," is demanding special treatment. It wants the college's official stamp of approval and the access to benefits and student activity fees that come with it, but it will not commit to following the nondiscrimination policy that every other student group follows.

The college is being represented by Paul Smith, who successfully argued Lawrence Vs. Texas, the landmark case that the struck down the nation's sodomy laws.

Justice Stephen Breyer: Health Care Reform May End Up Before SCOTUS

Breyer's comment was announced from the podium of the teabagger rally in Washington DC today. The crowd responded with an enormous roar of approval.

Bigots Agree: We Don't Want A Damned Queer On The Supreme Court

As the president considers the list of potential replacements for retiring Supreme Court Justice John Paul Stevens, anti-gay groups are issuing hysterical warnings that he better not pick a goddamn queer.

Focus On The Family:

Our concern at the Supreme Court is judicial philosophy. Sexual orientation only becomes an issue if it effects their judging. If someone says, `I don’t care what the law says, on the next case involving sexual orientation, I’m going to decide the case in favor of the openly gay party,’ that would be a breach of judicial duty.

American Family Association:

If we elevate an open homosexual to the Supreme Court, we will be elevating someone who freely admits that he (generic use) engages routinely in behavior that was still a felony in every state in the Union as recently as 1962 and a felony in the other 49 states until 1972. Sodomy is still a felony in the criminal code of about a dozen states. The Lawrence decision of 2003, an egregious act of judicial activism, prohibited enforcement of these laws, but the fact remains that 25% of the states in the Union still regard it as criminal behavior. We simply should not elevate to the highest court in the land people who are known for engaging in sexually abnormal behavior which would technically make them felons in a quarter of the states over which they will have jurisdiction.

AFA radio host Bryan Fischer concludes:

With an active homosexual on the bench, Lady Justice will no longer even pretend to be blind. She will be peeking out from under her blindfold to determine the sexual preference of those standing before her, then will let the fold slip back into place before ruling in every case to legitimize sexual deviancy. Bottom line: the American ideal of absolute equality before the law will inevitably be shredded by a homosexual judge. Neither the Constitution nor the American people should be subjected to that kind of judicial malpractice. We can and should expect more from those who occupy seats on the highest bench in the land.

All this before they even know who the nominee may be.

Hillary Clinton Rumored For SCOTUS

Once again, Hillary Clinton is being rumored to be on the short list of potential appointees to the Supreme Court.

Sen. Orrin Hatch says he's heard Secretary of State Hillary Rodham Clinton's name mentioned in connection with the Supreme Court vacancy brought about by the retirement of Justice John Paul Stevens. Hatch didn't elaborate in an interview Monday. Appearing with Senate Judiciary Committee Chairman Patrick Leahy on NBC's "Today" show, the Utah Republican said only, "I heard Sen. Hillary Rodham Clinton's name today and that would be an interesting person in the mix."

I can't even begin to imagine the circus that would be Clinton's confirmation hearings.

SCOTUS Justice Stevens To Retire

As widely rumored in recent weeks, today Supreme Court Justice John Paul Stevens announced that he will retire this summer. Stevens turns 90 next week.

Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Obama's presidency. Chief Justice John Roberts said in a written statement that Stevens has earned the gratitude and admiration of the American people. "He has enriched the lives of everyone at the Court through his intellect, independence, and warm grace," Roberts said. Stevens informed Obama in a one-paragraph letter addressed to "My dear Mr. President." The court released the letter along with the chief justice's statement on a day when the court wasn't even in session. According to NBC News, a senior administration official says the White House received the letter this morning. The president, traveling back from an overseas trip, was informed aboard Air Force One.

And now we get to go through the Sonia Sotomayor thing all over again.