Ted's excellent adventure and flailing over Sodomayer
Ted Olsen, the attorney who represented Bush at the Supreme Court in the Florida election debacle wherein the Supreme Court, against the overwhelming popular will and vote count, annointed Bush in his first term has joined forces with David Boies who represented Gore in the same case, to bring a constitutional federal challenge on the "marriage equality" issue. Be careful what you wish for guys- this Supreme Court even with Sodomayer on it isn't likely to find that
a same-sex marriage has the same protected class standing for equal protection purposes. But this will be a tough one from a constitutional perspective which will involve questions of, inter alia, whether sexual behavior (that some Justices no doubt consider flatly perverse) has the same protected class standing as immutable characteristics such as race and gender- or whether it should have the same protected status as other mutables like "religion" such as is protected in the "free exercise" first amendment context.... The fervor over this belief system that insists that gay sex and marriage is as correct, normal, "natural" or even holy as heterosexual does seem to rise to the level of a sort of religion - albeit some think a perverse idolotrous one based on the supremacy of the hedonistic what I feel like pleasure principle. The first amendment protections against the States (by incorporation of the 14th Amendment) making no laws that
prohibit the free exercise of religion does not place any value judgment concerning which religions are better than others on purpose-which is the point of the separation/non-establishment. But what if a group of people were to express a religion in which they sodomized children (as was actually practiced in pre-christian pagan times where male child prostitutes were part of the liturgy)-that surely wouldn't be given constitutional protection under the freedom of religion principles-because that is against other criminal statutes (statutory rape in fact). What about other practices that are not against criminal statutes but are nonetheless offensive or evil- like a religion wherein one is required to masturbate to porn daily and distribute it on the web to adults- not illegal. Everyone doing this should have the same ability to marry anyone else doing this. Anyone see a problem with making that constitutionally protected as a new constitutionally protected class? -or as the Pastor on Larry King last night postulated- what about couples who want to marry in a threesome with an ancor bi-sexual partner? What is the problem with redefining marriage like that? We have laws against polygamy and no one has challenged that this is unconstitutional-while it might violate the religion of a few mormons (like those followers of Jeffs currently in federal custody.)
Having not read the complaint I can't comment on the success on strict constitutional grounds and precedents, while I note that Ted's defection might get him a huge retainer from the Log Cabin Republicans, he has taken himself out of the running for any public office under a Republican banner-not that he cares. If Sodomayer is on the court there will be six catholic justices and a few non-catholic ones might find the argument troubling as well. Just a hunch. An adverse Supreme Court ruling on this would of course wipe out the legislative framework that Vermont, Iowa and other states have made to accomodate same sex marriages. Then Miss California might be in the running for Miss Universe.
The next Republican head scratching naval gazing exercise in defeating their own purposes comes when trying to find any credible assault on the nomination of Sodermayer who is as sure to be confirmed as she is sure to be popular. This is a woman who inspires me- a white mostly suburban traditionally raised woman attorney who knows that anyone who graduated second in her class Cum Laude at Princeton didn't get there on Affirmative Action. Affirmative Action might get your application a second look but you still have to make the grades. No doubt her stellar Catholic grade/high school education served her well. Well enough to get into Princeton, and launch a trajectory of an impressive career.
Another aspect of her personal history that cannot be overlooked is the fact that she is a juvenile diabetic. That is a recognized disability in fact under the ADA- and it hasn't stopped her. What a testimony of someone who should have had every stike against her to sit in self-pity and bitterness- born to poor parents, living in a project in the Bronx, with a serious medical condition. No doubt a portion of the people on her hall as a child ended up in the "system" in prison or caught in the drug-poverty cycle of despair. She didn't. She rose -unbelievably high.
If anyone appreciates that the "health of the mother" exception is not a bogus catchall that renders the rest of the ruling meaningless it is a juvenile diabetic. Juvenile Diabetics get pregnant at great risk and peril - it is a seriously risky proposition for a diabetic to get pregnant.
It is serious when gestational diabetes manifests during a pregnancy and even more serious when diabetic from childhood. Anyone with a relative with this condition knows this too well.
There are a few special OBGYNs who specialize in diabetic pregnancies- because they are tricky and highly risky. The incidents of stillborns, miscarriages or death of the fetus in utero are exponentially greater in juvenile diabetics- and health risks attendant to the mother can be fatal.
From that perspective- with advanced medical knowledge due to her condition, she should be
treated with the respect due her. I am in awe of her achievements- and she is another great American tale from the pages of this Land of Opportunity that can inspire us all.
Postscript: the issue of "marriage equality" under the constitution is now not only "likely" but probable to come before the court as a result of the Bois/Olsen filing giving Sodomayer cover if the question should arise in her confirmation hearings. Sorry fellas, can't answer as it is likely and probable to be before the court.
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