"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, December 5, 2016

So, is the appointment of Jeff Sessions by Donald Trump wrong, but of Robert Mulvey by New York Governor Cuomo right? On the fundamental right of a homosexual to marry a heterosexual

The press continues to raise questions about Donald Trump's picks for office.

For example, the press claimed that Jeff Sessions, Donald Trump's pick for U.S. Attorney General, tried to stop a meeting of homosexual community in 1996 on college campus.

Specifically, in 1996 Sessions reportedly "attempted to stop the Southeastern Lesbian, Gay, Bisexual College Conference from meeting at the University of Alabama under a state law passed in 1992 that made it illegal for public universities to fund in any way a group that promotes "actions prohibited by the sodomy and sexual misconduct laws."

Once again, it was in 1996.

Homosexual sex was de-criminalized by the U.S. Supreme Court through Lawrence v Texas only in 2003, 7 years after that date.

If, formally, homosexual sex was a crime at that time in Alabama, as it was in Texas and other parts of the country, formally, a state public official had not only a right, but also a duty to try and prevent a potential criminal activity from happening.

What I do not see the press doing though, is expressing concerns about appointment of an anti-gay judge, Robert C. Mulvey,

to "serve", first, as a Chief Administrative Judge of a huge 6th Judicial District in upstate New York, and then to be promoted to the Appellate Division 3rd Judicial Department.

Yet, Judge Mulvey did the same - or worse - than Jeff Sessions in regards to LGBT community, and I do not see New York State media screaming at Governor Cuomo's appointment of a radically anti-gay judge to the Appellate Division in March of this year.

In 2002, the New York State Assembly passed a legislation, Sexual Orientation Non-Discrimination Act (SONDA), prohibiting "discrimination on the basis of actual or perceived sexual orientation in employment, housing, public accommodations, education, credit, and the exercise of civil rights".  The legislation went into effect in January of 2003.

In June of 2003, the U.S. Supreme Court de-criminalized homosexual sex through Lawrence v Texas.

The right to marry is a well acknowledged, fundamental, civil right.

In 2005 in New York, there was a federal, U.S. Supreme Court, precedent decriminalizing homosexual sex, and a state legislation prohibiting civil rights discrimination against same sex couples.

Yet, in that same 2005, Mulvey has reportedly ruled against 25 same sex couples seeking to marry on the following grounds:

  1. lack of standing - Mulvey claimed that city clerks lack standing to demand permission to register same sex marriages, as they have no personal stakes in the matter.  Yet, the example of Kim Davis out of Kentucky who was sued, and went to federal prison, for failing to issue same sex marriages, show personal stakes of public officials who refuse to do their duty;
  2. New York Domestic Relations Law - Mulvey rejected the claim that the language New York Domestic Relations Law is gender-neutral, because "other sections" of New York law "clearly contemplate" a union between a man and a woman;
  3. Equal protection under the New York State Constitution - Mulvey claimed that he is "bound by appellate precedent" from 1992 (without mentioning the later legislation, SONDA, introduced in 2003, which overruled that "precedent");  Mulvey ruled that "plaintiffs failed to meet their burden of showing “that the Legislature was irrational in recognizing what is considered a unique and distinct social benefit derived from heterosexual marriage, to wit: natural procreation and child-rearing.” At that same time, that same Legislature already passed SONDA, which Mulvey simply chose to ignore.
  4. Due process under the New York State Constitution - Mulvey found that a state's denial of a right to marry to homosexual couples does not constitute a violation of their fundamental constitutional right to marry under either the state or the federal Constitution.
By the way, Judge Mulvey made the following claim in that case:

"Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.  The Court finds that civil marriage of same-sex couples is not a fundamental right under either the New York Constitution (Article 1, Section 6) or the United States Constitution (14th amendment). " 

So, in Judge Muvley's view, same-sex orientation is just a whim, so, individuals with homosexual orientation could just as well drop their nonsense, change their orientation, marry individuals of opposing sex, and we can all happily go home.

Of course, in 2006, the New York State Court of Appeals overruled an opposite decision, claiming that denying marriage licenses to same sex couples is unconstitutional under the State Constitution, and affirmed Judge Mulvey's anti-gay ruling by a New York City judge.

Mulvey concluded his reasoning in denying same-sex couples a right to marry this way:

"The decision to extend any or all of the benefits associated with marriage is a task for the Legislature, not the courts.   Social perceptions of same-sex civil contracts may change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.  Lawrence v. Texas, 539 U.S. 558, 603, 123 S.Ct. 2472, 156 L.Ed.2d 508, (Scalia, dissenting) (2003) If that day comes, it is within the province of the Legislature to so act."

Yet, by the time Mulvey ruled this way, "that day" already came - New York State Legislature has already passed an anti-discrimination statute, SONDA, 3 years prior.

Yet, Mulvey ducked the issue, never mentioned SONDA in the entire decision, and pretended that homosexuals could just as well change their orientation in order to marry people of the opposite sex ("Although it is clear that the plaintiffs have a fundamental right to enter into opposite-sex marriages they do not have an equivalent right to enter into same-sex marriages.").

Thus, the only fundamental right to marry for a homosexual person that Mulvey found, in 2005, despite the existing anti-discrimination legislation on the books of the State of New York, was a fundamental right to marry an individual of the opposite sex.

And, that judge was repeatedly promoted, including, as of this year, by the New York State Governor Andrew Cuomo, who is trying to badmouth appointments by the new president-elect and wage "anti-hate" campaigns.

And, I did not and do not see any media frenzy against the appointment by Governor Cuomo to the intermediate appellate court, the court where most of appeals in the State of New York are decided, of a judge who preferred to defy the State anti-discrimination legislation protecting gay couples, in order to promote his own agenda, and to sermonize, through his court decision, that same sex couples do have a fundamental right to marry - somebody else, of opposing sex.

And that, ladies and gentlemen, is disgusting - both as to Mulvey's sermonizing, and to Cuomo's and the media's hypocrisy.

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