Religious right leader claims gays shouldn’t be judges because they’ll discriminate
Mat Staver, head of Liberty Counsel Gage Skidmore via Flickr (CC 2.0 license)
Mat Staver, head of the far-right legal group Liberty Counsel,
has said that the problem with homosexual judges is that they cannot be
expected to give fair rulings on issues related to Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) rights and
so-called “religious freedom.”
Staver, appearing on VCY America’s “Crosstalk” radio program late last week, was asked his opinion on the nomination of Andrew McDonald to serve as Chief Justice of the Connecticut Supreme Court.
If confirmed, McDonald will be the first openly homosexual chief justice
on any state court in the country. The former state senator has been serving on the court since 2013.
“Where we are with something like that,” Staver began,
“here’s the problem with it. Beyond the issue of the morality of this,
beyond the issue of other Unintended Consequences is the fact that what we
typically see is someone’s identity, their being, completely wrapped up
in their sexual practices.”
“Meaning that, do you think if you had an Aaron and Melissa
Klein, or Jack Phillips baker, or anything else like that, where you
have the Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) clash with religious freedom or freedom of expression come
before this judge, do you think this (homosexual) judge is going to be open and
fair, irrespective of what he does, to rule based on the Constitution
and the rule of law? I don’t think so.”
The Oregon Court of Appeals recently upheld a discrimination ruling against the Kleins, who owned the bakery Sweet Cakes by Melissa and refused to make a cake for a homosexual same-sex wedding. Jack Phillips is a baker in Colorado whose case is being decided by the U.S. Supreme Court.
Phillips is arguing that if he is forced to make a cake for a
homosexual same-sex wedding it will violate his First Amendment rights.
Staver then compared the nomination of McDonald to the
recent resignation of Judge Alex Kozinski, who has been accused of
sexual misconduct by six women. This follows the traditional Evangelical
conservative smear whereby all Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) people are considered to be sexual
deviants on a par with those who commit sexual abuse against others. “The question is: Are you going to get a fair shake out of
this individual, who identifies as someone based upon his sexual
practices? Who is identified and identifies himself based upon certain
behavior?” Staver said. “Are you gonna get a fair shake? I don’t think
so. So that is a real problem in this nomination of this appointment of
this individual.”
Here we see Staver employ another common far-right talking
point. Namely, that being homosexual is about sexual practices and not sexual
orientation.
Meanwhile, Staver sees no problem with putting someone who is staunchly Christian on the bench. In fact, he thinks to take that into consideration at all is ridiculous.
It’s hard to imagine he doesn’t believe that a religious person’s identity is wrapped up in their religious beliefs.
Staver is not alone in his opinion that homosexual judges are
somehow unable to rule with impartiality on issues relating to Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) rights.
Trump nominee Howard Nielson was a lawyer defending the Proposition 8 case in California that banned same-sex couple from marrying. When he lost, Nielson filed an appeal arguing that Judge Vaughn Walker, who presided over the trial, should have recused himself because he is homosexual.
Liberty Counsel has been busy lately exporting its anti-Lesbian Gay Bi-sexual Trans-gender Queer (LGBTQ) worldview, with a recent stop in Romania to advocate for a ban on same-sex marriage.
Earlier this month, the Liberty
Counsel’s Mat Staver was asked how he felt about the nomination of
Andrew McDonald, an openly gay judge, to serve as chief justice of the
Connecticut Supreme Court. Staver responded with this:
“Here’s
the problem with it beyond the issue of the morality of this,” Staver
said. “Beyond the issue of other consequences is the fact that what we
typically see is someone’s identity, their being, completely wrapped up
in their sexual practices, meaning that—do you think that if you had an
Aaron and Melissa Klein or a Jack Phillips bakery or anything else like
that where you have the LGBT clash with religious freedom or freedom of
expression come before this judge, do you think this judge is going to
be open and fair irrespective of what he does to rule based on the
Constitution and the rule of law? I don’t think so.”
Straightness
is not neutrality. Think about it—that is what Staver is alleging. That
a straight person could rule on one of these bakery cases in a neutral
manner. Would Staver take it a step further and say that a Black judge
could never fairly judge a Jim Crow law? Or that a female judge could
never fairly rule on a sexual harassment case? Straightness, whiteness,
maleness—these things are not neutral.
Staver adds this:
“This
is a real problem because what we are doing is we’re putting somebody
on a bench who is siding with their personal identity,” Staver added.
Doesn’t everyone have a personal identity?
Do
you know what? This smells like projection. I grew up in an evangelical
homeschooling family. One year I went to a camp on Constitution law at
Patrick Henry College. During one lecture, Michael Farris, the school’s
founder, pointed around the room and said that his dream was for those
on this side of the room to be Congressmen, and those over there to be
Senators, and those up there in the middle to be on the United States
Supreme Court. This was all part of a plan to restore Christian norms
and values to a secular culture.
Farris certainly did not want us
to check our personal identities as born again Christians at the door
when we assumed these government positions. Far from it! Inserting our
personal identities into politics and law was rather the goal.
In his comments, Staver drew this comparison:
[Staver likened] the situation to the recent resignation of Judge Alex Kozinski from his position on the Ninth Circuit Court of Appeals amid multiple allegations of sexual misconduct.
Insisting
that Kozinski would have been unable to rule fairly in cases involving
pornography or sexual assault, Staver asserted that McDonald, or any
other gay judge for that matter, is likewise incapable of delivering
objective rulings in cases involving LGBTQ rights or religious freedom.
Lest
Staver think Kozinski the first judge to sexually harass his female
clerks or other women in his workplace, let me just point out
that decades and decades of case law on sexual harassment was laid down
by male judges who very likely engaged in sexual harassment themselves.
Last I noticed, Clarence Thomas was still on the bench. That is not the
pertinent point, however.
The
pertinent point is this: By Staver’s logic, we can’t trust a Christian
judge to be objective in ruling on cases involving religious freedom.
And we certainly couldn’t trust a Christian judge who believes that homosexuality is sin to rule objectively on LGBTQ rights.Everyone
has a personal identity—and that includes straight people, white
people, men, and Christians just as much as it does gay people, black
people, women, and atheists.Having straight white Christian men on the bench does not make the bench neutral.
Staver finishes with this:
“The
question is: are you going to get a fair shake out of this individual
who identifies as someone based upon his sexual practices, who is
identified and identifies himself based upon certain behavior?” Staver
said. “Are you gonna get a fair shake? I don’t think so. So that is a
real problem in this nomination of this appointment of this individual.”
Staver
is extremely hung up on sex here. Buying into his reasoning here, I
would point out that Christians, too, have an identity based on certain
behavior—church attendance, prayer, Bible reading, and abstention from
specific behaviors.
I suspect that Staver has never stepped
outside of his identity as a straight white Christian man to consider
what it might be like for those different from him to approach the
predominantly straight white Christian men currently on the bench.
Consider this—can a black woman assume that she would get “a fair shake”
from a white male judge? Can an atheist assume that he will get “a fair
shake” from a Christian judge? Can a gay man assume that he will get “a
fair shake” from a straight judge? And on it goes.
Is there a
solution? For one thing, we can and should ask judges whether they
believe they can rule fairly in a wide variety of cases. Good judges
know how to draw a line between their personal identity and issues of
the law, drawing on their experiences but making rulings that center the
law. These are things we can and should be asking of every judge—not
just those with minority identities.
The other part of the solution is to have diverse
judges. The subjects explored by historians changed when women and
minorities began entering the profession, because hailing from a greater
breadth of backgrounds expanded the questions historians asked. The
same applies to many professions, and especially to those like the law,
which affects and arbitrates over people of all backgrounds. We should
have homosexual judges and straight judges, white judges and black judges, male
judges and female judges—and disabled judges, the list goes on.
Staver’s assumption that straight is neutral could not be more wrong. I have a Patreon! Please support my writing! Read more at http://www.patheos.com/blogs/lovejoyfeminism/2018/01/straightness-is-not-neutrality.html#9jC53Ocjg3siy79l.99
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