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05/12/2010

Gay = judicial activism: A *truly* biased threat to our independent judiciary

by Jeremy Hooper

Eyetvsnapshot-1On "The View" this morning, Bill O'Reilly said the following about any potential LGB SCOTUS nominee:

"There are issues about Don't Ask Don't Tell, about other social issues, that, if you're gay, that may weigh in. Gay marriage-- that's going to come to the Supreme Court, gay marriage will, eventually. So yeah, it's not irrelevant. But should there be a witch hunt on it? Should that be the focal point? That's insane."

Not an uncommon thing to say. And we agree with him fully about whether or not sexual orientation should result in a "witch hunt," or even be a focal point. In a perfect world, it would not.

But where we conflict is on the first view. Because the simple reality: One cannot, would not, and should not hold the first view that Bill expresses unless they see the world, whether explicitly or internally/subconsciously, as one where heterosexuality is the "norm" and everything else is a diversion from it. Because if you do see the world as we do, one that hosts a rich and full spectrum of "normalcy," then you know that homosexuality could never be anymore of a judicial bias than is heterosexuality!

The truth is that all people who sit on any bench, be it park, dug out, or high court, have life experiences that shape their views of the world. Sexual orientation is certainly something that guides one through the journey that we call life. But justices of the high court are bound to the constitution, not to their sexualities. So if orientation is one of the certain factors that might influence those constitutional reads, then it must be extended to all, not just to the sets of eyes who have eyes for the same sex. If one sees potential for bias that's linked to sexual orientation, then one simply MUST give equal time to any other sexuality that might be within a potential justice!

When talking about the high court, the concept of religion -- an undeniable choice, by the way -- is always tossed around. Do we need another Protestant? Do we have too many Catholics? Wouldn't an atheist be nice? Wouldn't a Jewish perspective make the court more legally kosher? So if we're going to so fully see religion as a crucial component of diversity on the bench, then it's even more offensive to suggest that eight heterosexuals and one LGB justice would somehow be "skewed"! After all, religion has been used time and time again to trump CIVIL equality as it pertains to LGBT people. Never has a gay person's civil interpretation been used to deny a religious person of anything. Not really. Not in a realm that exists outside of far-right talking points.

The same goes for race or gender. We talk all the time about whether we need an African-American or a Latino/a or a female on the high court. A fair conversation. And it's even fair to ask whether life experiences might shape ruling on cases involving women's rights or matters related to race. But if one's going to have that conversation, one also has to consider the converse (the alternate position, not the shoe): Whether or not a court dominated by white males has unfairly titled rulings based on those personal experiences. A conversation that must also extend to sexual orientation.

So please, everyone: It's perfectly fine to talk about how characteristics, including sexual orientation (and hopefully, someday, gender identity) go into a justice's outlooks. But let's not kid ourselves into thinking that this would only start happening if/when a gay person is allowed to rub shoulders with Antonin Scalia or Clarence Thomas. We're pretty sure that those two have consulted their copies of "The Heterosexual Agenda" more than a few times during their distinguished careers.

***

**MORE: O'Reilly went further on his show: WATCH: BILL O'REILLY ON ELENA KAGAN'S SEXUALITY [TR]

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