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Request for the NY Commission on Judicial Conduct to Investigate Judge Wiggins for Bias in his Decision on the Challenge to the Marriage Equality Act – Part II

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This is Part II. Read Part III, or go back and read Part I.

 

Before explicating additional details indicative of bias in this part of Judge Wiggins’s Decision, a consideration of Plaintiffs’ choice of venue is in order. The Plaintiffs had options of where to file their lawsuit; they chose rural Livingston County because, for one, the Plaintiff Reverend Jason J. McGuire resides there. However, Reverend McGuire’s organization New Yorkers for Constitutional Freedoms, which is among his fellow, listed Plaintiffs, is, according to its website, located in Spencerport in Monroe County, the County Seat of which is the City of Rochester. Whereas Monroe County has in Rochester a metropolitan center, rural Livingston County has no cosmopolitan center. All things considered, in rural Livingston County it is easier than it would be in Monroe County for political gay bashers to dominate the political landscape. As Plaintiff Reverend McGuire resides and votes in Livingston County, and as he is a political lobbyist and public figure notorious for his ignorance-fueled, bullying non-acceptance of gay human beings, Judge Wiggins perhaps is aware of Plaintiff McGuire’s theocratic, anti-gay and anti-gay-rights motivations and of his political influence in Livingston County, which as of the 2010 census had a total county population of 65,393. It strains credulity to think that an Acting Supreme Court Judge in this rural county of only 65,393 people would be unaware of the theocratic political gay basher Reverend McGuire and of McGuire’s political influence in the county.

The Commission on Judicial Conduct should note that 1) Plaintiff McGuire — at least partially on his alleged basis that acceptance of homosexuality comes “from Satan” — very aggressively promotes “pray away the gay” therapeutic charlatanism, specifically disapproved of by major professional medical and psychological associations and 2) Plaintiff McGuire issues shockingly-worded political threats against those that do anything specifically to advance gay people’s civil and human rights. Consider a letter that the Plaintiffs Reverend McGuire and Reverend Motley sent June 14, 2011 on NYCF letterhead to Senate Majority Leader Dean K. Skelos. In that letter, McGuire and Motley remind Republican Skelos how infuriated they remain because, in 2002, a Republican-controlled Senate “frustrated” political gay bashers by passing the Sexual Orientation Non-Discrimination Act. They subsequently remind Skelos that in New York, extreme anti-gay right wingers have successfully mounted challenges to relatively moderate Republicans, as happened in 2008 when Tea Party candidate Carl Paladino was nominated for Governor over Republican Rick Lazio. Then, Reverends McGuire and Motley tell Senate Majority Leader Skelos “In 2012, should same-sex “marriage” pass,the pound of flesh will come from the Republican Majority.” Given that Reverends McGuire and Motley are inclined to issuing such violently-worded threats about same sex marriage on New Yorkers for Constitutional Freedoms letterhead, perhaps Acting Supreme Court Judge Wiggins feared that if he dismissed this case outright, he would never be nominated to the Supreme Court of Livingston County. How hard is it to suppose that Judge Wiggins might have perceived that he had more to lose by dismissing this case outright than by deciding it wrongly and including bias and political propaganda in his Decision?

The Commission on Judicial Conduct must not ignore that in their violently-phrased threat to Skelos, Plaintiffs McGuire and Motley put the word marriage in quotes – as follows — same-sex “marriage” – they wrote, in reference to marriages of same sex couples – because, they refuse to acknowledge as valid the fact that same sex married couples are married, even though those same sex couples are indeed legally married. And, the Commission must not ignore that behavior, because it is characteristic of political gay bashers in Livingston County, (and elsewhere), to whom ***Acting*** Supreme Court Judge Wiggins — (who might want to get nominated to a full term on the Livingston County Supreme Court bench) — perhaps directed certain portions of his Decision, which undeniably contains biased political propaganda.

Returning now to that portion of Judge Wiggins’s Decision dealing with the Plaintiffs’ legally baseless allegation apropos of Cuomo’s message of necessity;

As previously stated, instead of providing legal analysis as to why he concluded that Cuomo acted lawfully, Judge Wiggins chastises the Governor for his use of the message of necessity. To help further to demonstrate that Judge Wiggins wrote bias into his Decision, I shall first clarify what the law says about messages of necessity. Article III, Section 14 of The New York State Constitution describes the legal conditions under which a Governor may submit a message of necessity:

§14. No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon

In his message of necessity, Governor Cuomo wrote “The continued delay of the passage of this bill would deny over 50,000 same-sex couples in New York critical protections currently afforded to different-sex couples including hospital visitations, inheritance and pension benefits.”

In his Decision, Judge Wiggins, with bias, disparages Cuomo’s opinion in the message of necessity at length, asserting, for instance, that “Logically and clearly,” it was “disingenuous.” That is to say, Judge Wiggins improperly editorialized against Governor Cuomo’s opinion which held that the end of anti-gay discrimination should occur as promptly as possible. The Commission on Judicial Conduct must now consider, that previously it has happened, that the surviving member of a loving same-sex couple together for decades has been refused his partner’s body by a hospital because he did not — under the discriminatory law as it was written at the time — have legal standing to have the body as part of proper funeral arrangements.

While Cuomo, as per the statute, certified facts which in his opinion necessitated an immediate vote on the Marriage Equality Law, Judge Wiggins in his Decision allowed that Cuomo lawfully handled the message of necessity, but that he, Wiggins, personally very strongly and emotionally disapproves of the facts Cuomo presented, and personally very strongly and emotionally disapproves of Cuomo’s opinion that those facts necessitated an immediate vote on the Marriage Equality Act. Very significantly, where, in his Decision, Judge Wiggins cites the law pertaining to messages of necessity, he misquotes it.  There now follows an example of Judge Wiggins’s misquoting of the law. 

Here is what the law actually says: The law states that all proposed legislation must be on Legislators’ desks for three days prior to any vote, “unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinionnecessitate an immediate vote thereon.”

In misquoting the law, instead of the above, Judge Wiggins wrote “unless the Governor certifies facts which necessitate an immediate vote thereon.” That is, Judge Wiggins omitted the phrase of the law“in his or her opinion,” such that to eventual readers of his Decision, naïve of the precise wording of the statute, it could well appear that the facts necessitating an immediate vote on the proposed legislation must somehow documentably be proven to necessitate an immediate vote, instead of being ipso facto valid for a message of necessity because 1) in the Governor’s opinion, those facts necessitate an immediate vote and 2) the law says that for a message of necessity, the Governor certifies the facts which “in his or her opinion” necessitate an immediate vote.

There now follows how, in his Decision, Judge Wiggins elaborated his personal and emotional opinion that Governor Cuomo should not have used a message of necessity, even though Governor Cuomo acted entirely lawfully in doing so. The bolding is mine:

“The review of such concept altering legislation for three days after generations of existing definitions would not so damage same sex couples as to necessitate an avoidance of rules meant to ensure full review and discussion prior to any vote.”

Whereas Governor Cuomo would want to spare a gay person that had just lost their beloved life’s companion the waking nightmare of being refused their life’s companion’s body by a hospital, Judge Wiggins evidently thinks it is just tough luck for gay human beings in such a circumstance. Whereas somebody might have referred to the proposed Marriage Equality Law as, for example, “discrimination-eliminating legislation,” Judge Wiggins called it “concept altering legislation.”In that same spot, a judge concerned with conveying professional impartiality and with not exhibiting bias might simply have referred to “this legislation.”

As regards Judge Wiggins’s reference to “generations of existing definitions,” (of marriage), one could ask whether Judge Wiggins has with that phrase used the Plaintiffs’ lingo.  Equality proponents do not often, if indeed ever, say that their goal is “to change the definition of marriage,” but enemies of equality continually refer to “the definition of marriage.” Whereas Plaintiffs in their Complaint use phrases such as “the definition of marriage,” such phrases about “the definition of marriage” do not appear in Schneiderman’s Response document. By way of additional example, few if indeed any of the groups that favored passage of the Marriage Equality Law celebrated by announcing “We have redefined marriage.” And, by way of contrast,  after passage of the Marriage Equality Law, Plaintiff NYCF published to its website an article titled “New York Falls Off Moral Precipice” in which it stated that four Republican Senators voted “to redefine marriage and the family.”

In his Decision, regarding the message of necessity, Judge Wiggins additionally writes (bolding mine):

“This Court is reluctantly obliged to rule that the message of necessity submitted by the Governor was accepted by vote of the Senate, and is NOT within this Court’s province to nullify.”

That sentence does not constitute a legal analysis. That phrase manifestly is directed at the Plaintiffs and their eventual supporters, and not, for example, at Cuomo or Schneiderman. Judge Wiggins himself capitalized the word “not” in the phrase “is NOT within this Court’s province to nullify;” and, it is self-evident that the capitalized “NOT” is directed not at Attorney General Schneiderman or Governor Cuomo but rather at those that want the Marriage Equality Law declared null and void. The sentence in question appears to express Judge Wiggins’s strong personal wish that he could rule in favor of the Plaintiffs on this allegation about the message of necessity, though the law does not permit him to. That Judge Wiggins thusly appears to express a personal wish to side with the Plaintiffs, though the law would not allow any judge to do so in this question of the message of necessity, and that he appears to express a personal wish to side with the Plaintiffs in language manifestly directed at the Plaintiffs, is consistent with the hypothesis that the bias Judge Wiggins exhibits in this Decision could be calculated to increase his personal professional fortunes in Livingston County.

Judge Wiggins further writes:

“although the disregard for the statute seems evident, the Court feels constrained to not rule on the Governor’s certification of necessities.”

There, Judge Wiggins is promulgating the documentable legal untruth, the lie, that Governor Cuomo disregarded the statute. Furthermore, it is senseless, absurd and unprofessional for Judge Wiggins to write that “the Court feels constrained not to rule on the Governor’s certification of necessities,” because Judge Wiggins has no authority to rule on it, and because, ruling on the Governor’s certification of necessities was not even put before Judge Wiggins. What got put before him, rather, were the Plaintiffs’ meritless allegations regarding the message of necessity, and Schneiderman’s Motion to Dismiss. In their Complaint, the Plaintiffs asked the Court to declare that the Governor “improperly” issued a message of necessity. But the Governor acted lawfully, so Judge Wiggins had to dismiss that allegation. Instead of analyzing why the Plaintiffs’ allegations were without merit, Judge Wiggins shoehorned into the middle of what is supposed to be a legal document a biased op-ed against Governor Cuomo’s desire to eliminate anti-gay discrimination as promptly as possible.

In view of Judge Wiggins’s emotionally editorializing in place of professional legal analysis, it is galling that previously in the Decision, he wrote “The Respondent has raised multiple issues in its motion to dismiss. Some of these issues are easily decided and others require further analysis.” I want the Commission on Judicial Conduct to consider whether Judge Wiggins was being duplicitous when he wrote that.  Any judge who — given to rule on these Plaintiffs’ bogus allegations regarding Cuomo’s message of necessity — could not “easily decide” the matter, would have to be considered incompetent. And, even though Judge Wiggins wrote that some issues raised by the Respondent “require further analysis,” Judge Wiggins, writing about whether the charge involving the message of necessity should be dismissed, in a very roundabout way admitted that it should be dismissed, while openly and emotionally wishing to side with the Plaintiffs on it and chastising the Defendants. Is that not a very definition of bias?

Judge Wiggins wrapped up his non-judicial, biased political propaganda regarding the message of necessity by writing this:

“It is ironic that much of the State’s brief spews sanctimonious verbiage on the separation of powers in the governmental branches, and clear arm-twisting by the Executive on the Legislative permeates this entire process.”

Again there, Judge Wiggins appears to be writing in a particular, non-judicial way for a particular readership opposed to marriage equality for same sex couples. The State’s brief does not “spew sanctimonious verbiage on the separation of powers in the governmental branches.” The Plaintiffs’ asked the Court to declare that the Governor improperly issued a message of necessity. They did so, in the course of asking the Court to declare the Marriage Equality Law null and void and also to declare annulled all same sex marriages entered into under it. The Defendants responded with a legally sound and well-detailed defense.  That was the Defendants’ duty, as it was Judge Wiggins’s duty to write his Decision without bias and without political propaganda. There are reasons that, in the face of the Plaintiffs’ demand that the Marriage Equality Law — and same sex marriages entered into under it — be declared null and void — Judge Wiggins should have faced the task of composing his Decision with a heightened resolve to remain professional, judicial, and unbiased.

 

 

This is Part II. Read Part III, or go back and read Part I.

New York City-​based novelist and freelance writer Scott Rose’s LGBT-​interest by-​line has appeared on Advocate​.com, PoliticusUSA​.com, The New York Blade, Queerty​.com, Girlfriends and in numerous additional venues. Among his other interests are the arts, boating and yachting, wine and food, travel, poker and dogs. His “Mr. David Cooper’s Happy Suicide” is about a New York City advertising executive assigned to a condom account.

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NOT EVEN CLOSE

Sean Spicer Bitterly Complains the Press Is Treating Jen Psaki Better Than They Did Him

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As part of a deep dive into the growing popularity of White House press secretary Jen Psaki who has a legion of admirers on social media due to her handling of press, former Donald Trump press secretary Sean Spicer complained to the New York Times that she has gotten a free pass from the media that he never got.

According to the report, even Peter Doocy of Fox News had high praise for Psaki despite his almost daily battles with Psaki that have become widely shared on Twitter and evening newscasts.

“It never feels like I’m getting smacked down or vice versa,” Doocy admitted. “I understand why it looks like that, some of the ways that stuff gets clipped, but it doesn’t feel like that in the room.”

He added, “When I got back from my wedding she made a point to tell everybody in the briefing room that I just got married. That’s a transcript I can print out and show to my kids one day.”

As for Spicer, who eventually resigned following combative press conferences that were famously mocked on Saturday Night Live — with actor Melissa McCarthy portraying a bullying and manic Spicer — he thinks he was held to a higher standard than the current press secretary.

“‘I walked into the lion’s den every day — she walks into a bunch of kittens,'” Sean Spicer, Mr. Trump’s first press secretary and now the 6 p.m. anchor on Newsmax, said in an interview,” the Times’ Michael Grynbaum wrote.

Spicer also took exception to Psaki taking a dig at him during a press conference after President Joe Biden asked him to resign from the board of the United States Military Academy when she was asked about his performance in her job as well as appearances by Kellyanne Conway defending Donald Trump.

Psaki replied, “I will let others evaluate whether they think Kellyanne Conway and Sean Spicer and others were qualified.”

That led Spicer to complain, “Jen chose to stand and question my qualifications and services to this country. Once she did that, the gloves were off.”

You can read more here.

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RIGHT WING EXTREMISM

GOP Gov. Kristi Noem Won’t Make Kids Wear Masks in Schools But She Is Trying to Make Them Pray

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South Dakota’s Republican Governor Kristi Noem refuses to mandate masks for schoolchildren and teachers but she’s trying to make students pray in public. Gov. Noem, who is widely expected to run for president in 2024, has let the coronavirus run rampant in her state of just 886,667 people – a population so small New York City’s is ten times larger. And yet coronavirus is running rampant in South Dakota, which ranks number eight in the nation for coronavirus cases per capita.

Governor Noem just made clear she does not see herself as a government or political leader, but as a religious one. Speaking to Real America’s Voice personality David Brody, Noem declared she will bring back prayer in schools (even though voluntary prayer has always been legal) and thinks political leaders are supposed to “minister” to their constituents.

Complaining that the actions other government leaders are taking “are not biblical,” Noem says they are supposed to “line up with God,” which is false.

“I think that it’s really time for all of us to look at the actions of our leaders and see if they line up with the word of God,” Noem said, “see if they’re biblical and if they really are following through on those actions that God’s called us to do to protect people, to serve people, and to really minister to them.”

Protecting, serving, and ministering – but not in the fight against the deadly pandemic.

“We’ve seen our society, our culture, degrade, as we’ve removed God out of our lives, and people become what they spend their time doing,” Noem declared. “When I was growing up, we spent every Sunday morning, every night, every Wednesday night in church, we were our church, family was a part of our life, we read the Bible every day as a family together, and spent time with each other, recognizing that we were created to serve others.”

Again, Noem makes clear she does not believe serving and protecting others has anything to do with COVID-19.

“I don’t know families do that as much anymore and those biblical values are learned, in the family, And they’re learned in church when the doors are open so people can be there and be taught.”

“We in South Dakota, have decided to take action to really stand for biblical principles. We had a bill that was passed during legislative session two years ago that put the the motto ‘In God We Trust’ in every single school building it is displayed. Now in every K-12 school building in the state of South Dakota.

“I have legislation that we’ll be proposing this year that will allow us to pray in schools, again, I really believe that focusing on those foundational biblical principles that teach us that every life has value every person has a purpose will recenter our kids and help us really heal this division that we see taking over our country.”

MSNBC’s Steve Benen notes, “given that the United States is a democracy, and not a theocracy, officials’ actions are supposed to line up with the Constitution and the rule of law, not how some people interpret scripture.”

“What the governor seemed to be suggesting, however, isn’t a system in which students pray on their own,” he adds, “but one in which school officials intervene in children’s religious lives. In the United States, that’s not legal: As my friends at Americans United for Separation of Church and State recently explained, ‘The South Dakota Supreme Court struck down mandatory recitation of the Lord’s Prayer in the state’s public schools in 1929. The U.S. Supreme Court invalidated school-sponsored prayer and Bible reading in public schools in 1962 and ’63.'”

 

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RIGHT WING EXTREMISM

Architect of Texas Abortion Ban Also Criticized ‘Court-Invented Rights to Homosexual Behavior and Same-Sex Marriage’

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The architect of what is now Texas law, Governor Greg Abbott‘s “heartbeat” legislation that bans all abortion after six weeks, attacked the constitutional rights of same-sex couples to marriage, and sex between persons of the same sex, in a brief filed with the U.S. Supreme Court this past summer. In that brief he also called same-sex marriage a “judicial concoction,” and argued that women should merely abstain from sexual intercourse as a method to “control their reproductive lives.”

Former Texas solicitor general and Federalist Society member Jonathan Mitchell, The Guardian reports, “who played a pivotal role in designing the legal framework of the state’s near-total abortion ban, also argued on behalf of anti-abortion group Texas Right to Life that women would still be able to terminate pregnancies if Roe was overturned by traveling to ‘wealthy pro-abortion’ states like California and New York with the help of ‘taxpayer subsidies.'”

“Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse,” Mitchell wrote in the brief. “One can imagine a scenario in which a woman has chosen to engage in unprotected (or insufficiently protected) sexual intercourse on the assumption that an abortion will be available to her later. But when this court announces the overruling of Roe, that individual can simply change their behavior in response to the court’s decision if she no longer wants to take the risk of an unwanted pregnancy.”

“In the same brief, which calls for Roe to be overturned,” The Guardian adds, “Mitchell and co-counsel Adam Mortara, an anti-abortion activist and lawyer who clerked for the supreme court justice Clarence Thomas, said such a decision could open the door for other ‘lawless’ rights and protections to be reversed, including the right to have gay sex and the right to same-sex marriage.”

In their July, 2021 Supreme Court amicus brief, Mitchell and Mortara also call “interracial marriage” one of several “supposed constitutional ‘rights’ that have no basis in constitutional text or historical practice.” Among them, “court-imposed ‘substantive due process’ rights whose textual and historical provenance are equally dubious.”

On same-sex marriage and sex their opinion was devastatingly ruthless.

“The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage,” the amicus brief reads. “These ‘rights,’ like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence.”

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