What John Boehner’s House Is Saying — In Court — About Gay Homes
John Boehner, as Speaker of the U.S. House of Representatives, has decided to defend the unconstitutional law known as DOMA, the federal Defense of Marriage Act. Boehner’s lawyer, Paul Clement, filed documents in federal court this week — at the taxpayer’s expense, of course — which make rather nasty, offensive, and untrue accusations about the nature of same-sex relationships, marriage, and even about the nature of homosexuality. It’s bad enough when professional gay-haters like Maggie Gallagher and Bryan Fischer spew this hatred — after all, that’s how they make their living — but to have to hear it from our own government, paid for with our hard-earned tax dollars, well, that should be enough for every self-accepting gay man, lesbian, and bisexual and transgender American to vote Democratic in 2012.
Here’s the list, “Top Five Homophobic Statements From Boehner’s DOMA Briefs,” thanks to Zack Ford of Think Progress, who put together the five-point list below, and Joe Sudbay of AmericaBlog, whose work it’s based on— head over to both sites to see more, including direct quotes from the briefs.
1. GAYS HAVE NOT HISTORICALLY FACED DISCRIMINATION: Ignoring the fact that there have been laws against homosexuality for about as long as people have been publicly out, Clement argues that anti-gay discrimination is a “unique and relatively short-lived product of the twentieth century.†Worse yet, Clement argues that because things are getting better, any arguable history of discrimination is irrelevant.
2. SEXUAL ORIENTATION IS A CHOICE: Clement’s argument against the immutability of sexual orientation is shallow and duplicitous. He points out that people “choose†to identify as gay, confusing selecting one’s orientation with identifying with it. He suggests that if sexual orientation were immutable, it could be determined at birth. And most deceptively, he implies that because scientists have not agreed upon a clear cause for sexual orientation,they do not have consensus that it is not a conscious choice — they do. He even attempts to tell Ms. Windsor that she is wrong about her own sexual orientation.
3. GAYS HAVE PLENTY OF POLITICAL POWER: Despite the fact that gays and lesbians constitute only a small percentage of the population and have been discriminated against by majority votes for decades, Clement tries to make the case that gays are not “politically powerless,†one of the qualifications for heightened scrutiny. By selectively highlighting successes and positive polling around LGBT equality, he paints a false picture of how rosy life is for gays and lesbians, snidely using the Department of Justice’s stance against DOMA to make his point.
4. SAME-SEX COUPLES MAKE BAD PARENTS: One of Congress’s rationales for passing DOMA was the idea of “responsible procreation,†the idea that opposite-sex couples were better suited to raising children and thus marriage was a privilege reserved for them. In order to defend this idea, Clement must challenge scientific consensus on the existing research that shows same-sex parents to be equally as effective, and so he does.
5. THE INSTITUTION OF MARRIAGE MUST BE PROTECTED: Implicit in all arguments against marriage equality is the fear-mongering claim that somehow allowing same-sex couples to marry will destroy the “institution†of marriage. Indeed, Clement has made it clear he will argue that marriage must be “defended†from “redefinition.†He also implies that the benefits that same-sex marriages would be afforded would be an undue financial burden for the government.
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Legal experts are applauding Special Counsel Jack Smith’s move to “leapfrog” a Trump effort to delay his D.C. case by claiming he has immunity from prosecution and appealing the decisions by asking the U.S. Supreme Court to rule on that major question.
Trump is claiming he cannot be prosecuted for his efforts to overturn the 2020 election because he was president at the time, and is also claiming he cannot be prosecuted because he was impeached nay the House but not convicted by the Senate.
Legal experts and U.S. District Judge Tanya Chutkan have declared Trump is not immune from prosecution for criminal acts, with Judge Chutkan writing: “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
READ MORE: Clarence Thomas Vehemently Objects to LGBTQ Conversion Therapy Case Denial by SCOTUS
On Monday the Special Counsel appeared to have short-ciircuited Trump’s delay tactic by asking the Supreme Court to rule on this question: “Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”
“It is hard for Trump to logically object to Smith’s request today for expedited Supreme Ct review since it is Trump who is claiming he [should] not be subject to the indictment at all,” writes former FBI general counsel Andrew Weissmann, a popular MSNBC legal analyst. “Expedited review only helps alleviate that harm, if he is correct (which he is not).”
Weissmann adds, “Note newest Smith team member: the storied appellate lawyer Michael Dreeben. Argued over 100 cases in Supreme Court, and was head appellate lawyer on SC Mueller team.”
“This is a really ballsy move,” declared former U.S. Attorney and Deputy Asst. Attorney General Harry Litman. “And who is Michael Dreeben? He plays a similar role in Mueller investigation but he was a very long time Deputy Solicitor General and probably the most respected Supreme Court advocate on criminal issues in the Dept.”
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Steve Vladeck, the national security attorney and professor of law, adds, “if I were taking a criminal procedure issue to the Court, there’s no one I’d want as my special counsel *more* than Michael Dreeben.”
He also explains, “The bottom line of Jack Smith’s #SCOTUS filing is that he wants to ensure, one way or the other, that the issue of Trump’s constitutional immunity from the January 6-related prosecution is conclusively resolved by the end of the Supreme Court’s *current* term (i.e., June 2024).”
“This is exactly the right move,” announced noted constitutional law scholar and Harvard University Professor Emeritus Laurence Tribe. “And SCOTUS should agree to leapfrog the DC Circuit, just as it did in the Nixon tapes case. The issue is purely legal and delay hurts the country.”
Former 30-year federal prosecutor Glenn Kirschner, now an NBC News/MSNBC legal analyst sums up the Special Counsel’s move: “Unwilling to play Trump’s stupid reindeer games, Jack Smith takes the reins and seeks an expedited answer from the Supreme Court on Trump’s baseless claim that he is above the law and can’t be prosecuted for his crimes.”
Watch Weissmann’s explanation of Smith’s move below or at this link.
MSNBC Legal Contributor Andrew Weissmann explains why Jack Smith’s direct appeal to the Supreme Court on the issue of Trump’s immunity claims is a “smart move.” pic.twitter.com/835W478Kpe
— MSNBC (@MSNBC) December 11, 2023
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Special Counsel Jack Smith is asking the conservative-majority U.S. Supreme Court to rule on a major leg of Donald Trump’s defense, that he is immune from any prosecution for actions he took while President.
Smith’s question now before the justices: “Whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”
MSNBC on-air called it “an unexpected and fascinating legal move.”
The justices can agree to take up the question or refuse.
The Special Counsel has requested an expedited decision.
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U.S> District Judge Tanya Chutkan has already ruled Trump can be prosecuted for his efforts to overturn the 2020 election. Trump has appealed and is attempting to put the entire case on hold until a ruling has been made.
“Smith is attempting to bypass the appeals court,” the Associated Press reports. “The request filed Monday for the Supreme Court to take up the matter directly reflects Smith’s desire to keep the trial, currently for March 4, on track and to prevent any delays that could push back the case until after next year’s presidential election.”
The U.S. Supreme Court has refused to hear a case challenging the state of Washington’s law banning anti-LGBTQ conversion therapy for minors, but in the 6-3 decision Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas said they would have taken the case. Justice Thomas vehemently objected to the Court’s decision, using his dissent to declare the practice – denounced as dangerous by major medical organizations and as torture by organizations and some who have been subjected to it – a First Amendment issue.
NBC News reports, “the court left in place a state law that bars therapists from counseling minors to change sexual orientation or gender identity, a practice favored by some conservatives.”
Conversion therapy, which experts say is unsuccessful and has been labeled child abuse or fraud, aims to change an LGBTQ individual’s sexual orientation or gender identity.
The Human Rights Campaign has published the statements of 15 medical groups’ positions against conversion therapy, and of a coalition of medical, mental health, education, and religious groups also opposing the practice.
Courthouse News, reporting on the Court’s refusal to take up the case, noted, “State lawmakers enacted the law to protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth. A 2018 study found that over 60% of children who received conversion therapy attempted suicide.”
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When accepting or denying a case for review, Supreme Court justices are under no obligation to identify their vote by name, much less submit legal arguments for their positions, but on this issue Justice Thomas included a multiple-page dissent.
Thomas insisted conversion therapy is an issue of free speech, despite that methods used in the U.S. and around the world can range from talk therapy to medication, surgery, electro-shock “therapy,” and even “physical and psychological violence” according to a statement opposing conversion therapy from the Independent Forensic Expert Group on Conversion Therapy.
“There is little question that SB 5722 regulates speech and therefore implicates the First Amendment. True, counseling is a form of therapy, but it is conducted solely through speech,” Thomas wrote in his dissent. “A law that restricts speech based on its content or viewpoint is presumptively unconstitutional and may be upheld only if the state can prove that the law is narrowly tailored to serve compelling state interests.”
Justice Thomas did not appear to consider the state’s primary role and compelling interest in protecting minors.
He also wrongly claimed, “under SB 5722, licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.”
CNN reports, “Under the law, a licensed therapist can discuss conversion therapy with minors or recommend it be performed by others such as a religious counselor, but a licensed therapist cannot perform it.”
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Ignoring the numerous statements, studies, and positions of experts that conversion therapy is both unsuccessful in its aims and dangerous to the health of those who undergo the discredited practice, Justice Thomas wrote that under the Washington state law known as SB 5722, “licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities.”
“Expressing any other message is forbidden—even if the counselor’s clients ask for help to accept their biological sex,” he continued. “That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.”
Justice Thomas also appeared to invite additional challenges to laws banning conversion therapy, which now exist in 22 states and the District of Columbia, according to the Movement Advancement Project.
“Although the Court declines to take this particular case, I have no doubt that the issue it presents will come before the Court again. When it does, the Court should do what it should have done here: grant certiorari to consider what the First Amendment requires,” Thomas wrote.
Issuing only a short statement that he agreed with Justice Thomas’ decision, Justice Alito called the case “a question of national importance.”
“It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny,” he added.
In 2020, the Williams Institute at UCLA School of Law reported on a study that found “non-transgender LGB people who experienced conversion therapy were almost twice as likely to think about suicide and to attempt suicide compared to their peers who hadn’t experienced conversion therapy.”
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