The Irresponsibility of the Supreme Court Originally written 12/5/2016. Some revisions October 19, 2017 Extended passages from this paper have been made use of, with editing, in other work of the author.
Billy Rojas There is a new argument and a new kind of argument to make on behalf of the Christian viewpoint of the issue of sodomy. With some re-interpretation this might also be useful to Jews. This concerns the failures of the Supreme Court to reach decisions that pass basic tests of evidence vital to the issue of homosexuality. It is totally out of bounds to base such decisions, as is currently standard practice by the Court, on narrow legal grounds when the fact of the matter is that American jurisprudence assumes that questions of justice do not apply to the clinically insane or to people who are mentally ill, who suffer from a psychological disorder. In so many words, people who belong in a mental institution cannot claim the same rights as those who are psychologically normal. ================================. But isn't the issue of homosexuality over and done with? Isn't it settled law? For now, but so was slavery settled law at one time, so was male-only suffrage. What we have is law that has been decided by judges and Justices that have been ignorant of every salient fact about homosexuality, who are ignorant of the history of homosexual activism and of the fact that there would be no "homosexual rights" movement except for the actions of Harry Hay, a true believer Communist in the 1950s, who are ignorant of the infiltration of the American Psychiatric Association by Left-wing psychiatrists in the 1960s, ignorant of virtually all the research literature written by the founders of psychology over many years, ignorant of more recent work by organizations like NARTH, the National Association of Research and Therapy of Homosexuality, in few words, ignorant of everything that matters: All the while making binding law for everyone else and in the process destroying religious freedom for the sake of promoting a grievous and harmful sexual psychopathology. . We have on the bench, in almost every state, and in the Supreme Court, an irresponsible judiciary that has no moral right to the positions they now hold. There is such a thing as "independent judicial research," after all. That is, there is an implicit -possibly explicit- mandate for judges and Justices to do any research necessary prior to rendering decisions that deal with complex issues. This applies especially to scientific or technological matters like patent protection for sophisticated computer programs, and medicines of many descriptions, and the like, but it also applies -or should apply- to a complex psychological and sociological issue like homosexuality. . The principle applies to questions such as whether or not homosexuality is a mental illness -as generations of psychology professionals have said it is, starting with Sigmund Freud in his never retracted Introductory Lectures on Psychoanalysis, but including Irving Bieber, Sandor Rado, Erich Fromm, Karen Horney (hor-nye), and still others. The DSM, the "bible" of the American Psychiatric Association, classified homosexuality as a mental illness until the early 1970s and still characterized it as a pathology (not necessarily an illness per se) into the 1980s, and as an illness in all cases when homosexuals sought to cease being homosexual and disdained their same-sex interests, into the 1990s. There was even one type of homosexuality that was regarded as pathological into the early 2000s. . Not only this, but a good number of psychologists and psychiatrists have written about the way that the APA leadership in 1972-73 subverted the organization, shutting out critics of homosexuality from committee deliberations, from membership in relevant committees, and otherwise turned the APA into a sounding board for homosexual grievances. That is, especially after a mass exodus from the APA in the years after 1973 which cost the group at least one-third of its membership, the organization had lost all credibility as an honest source of information about homosexuality, it had become an advocacy cabal for homosexual interests, with people like the late Dr. John Money acting as shills for the same-sex crowd. . This being the case it is legitimate to ask whether the courts, any of them, ever questioned the competence of the APA to reclassify homosexuality as not being a mental illness, indeed, to progressively "normalize" it as time went on. To the best of my knowledge this never happened. The bench, every relevant bench, ignored the many serious questions about the legitimacy of the APA and acted on the assumption -which was what it was, an assumption- that the organization was authoritative on such matters. Nor did the Republicans in government -at different times, in the House, the Senate, or the White House- ever raise the issue. . How could they? The only argument they knew how to make was biblical, and even then their knowledge of the Bible on this question was abysmal, for example often saying that only 4 or 5 verses discussed the matter while research tells us that there are 15 verses in each testament, some extended, a minimum of 30 passages altogether, and hence one of the major themes in the holy book. Which is good to know if you are trying to make a case to fellow believers, to get them on board with the issue. Which, though, carries almost no weight in a pluralist democracy. . The point is that numerous cases at law involving homosexuality have been decided on false premises, as if the last word on the subject was provided by the APA, and as if "since" homosexuals supposedly are "normal," such cases should be determined strictly on legal grounds. . One huge problem has been self-serving legal precedent. You would suppose that in all cases where depth knowledge of an issue was important -without it how could a judge decide on the merits of a case?- judges would be required to do some research to 'get up to speed,' so to speak. However, you would be wrong to make that supposition. Au contraire, the Law has actively discouraged any such thing, and until recently, roughly the 1990s, judges were admonished not to carry out research. The one notable exception stemmed from the Frye decision of 1923 although it primarily only applied to such things as drug patents and medical technology. And all that Frye really did was allow expert testimony and a minimum of judicial research, just enough for a member of the bench to understand some basics. . The limitations of this became obvious by the time the Daubert case was adjudicated in 1993. At that time the Supreme Court ruled that a better standard than Frye was needed, one that adequately defined the role of judges as "gatekeepers" who should ensure that expert testimony really did rest on a foundation of proven science so that "dueling" experts could not falsify the data they were working with. . Yet the Daubert decision did not require any court to follow its lead, compliance would be voluntary. Hence the anomaly that half the states are still reliant on Frye, including populous giants like California, Pennsylvania, and Illinois. With the additional anomaly that the Supreme Court itself may choose to ignore Daubert which, according to critics of the high court, is commonplace among the most senior of the justices who may decide major cases involving computers, for example, despite the fact that they are basically clueless about how to use a computer, how computers operate, etc., not to mention such factors as computer networks or differences between Apple and Microsoft products. . Also relevant is a Rhode Island state court decision of 1959, the Etoile case, which stipulates that in all instances where hard evidence is crucial to a verdict or ruling, the opposition, not just the party advocating a view, is entitled to hear (or read) the evidence. But in possibly ALL cases concerning homosexuality Etoile has been a dead letter; there has been no meaningful discussion of expert testimony that casts substantive doubt on the credibility of the APA to render objective pronouncements about homosexuality. . Of course, it would help if conservatives knew what they were talking about.Few have any empirical knowledge of the issue and most habitually frame their arguments in terms of traditional (biblical) morality, or, perchance, on freedom-of-religion grounds -which, even if successful, which is hit-and-miss, still leave homosexual gains unchanged. . Indeed, conservative defenders of Christian-derived morality and of Christian opposition to homosexuality, sometimes are ridiculously out of their league. A case in point was the trial concerning the constitutionality of California's Proposition 8 of 2010 which was passed by the voters of the state by a clear majority. But the lawyer defending the Christian position, that marriage is between a man and a woman not something else, not incidentally still Barack Obama's position at the time, was -there is no kind way to say it- an idiot. . This begs the question about the presumed necessity for the judge, Vaughan Walker, to recuse himself. After all, Walker is a homosexual. You would hardly expect him to reach some other decision than one in favor of homosexual interests. Regardless, there was no challenge to the propriety of his presiding and the trial went ahead. . The Christian attorney then presented exactly one witness, who, it seems, was witless. Even Walker was astounded and asked if there might be additional testimony on behalf of the Christian view. There was not, apparently because the lawyer was of the opinion that his case was so 'obviously' right that no-one could refute it in open court. Which, if so, and no other explanation is available, would have been preposterous. After all, the homosexuals had just called a parade of so-called experts on their behalf during a period of two weeks. . The Christian rebuttal was pathetic. Not only was their witness dubious inasmuch as he was not an expert as required by Frye, his argument was ludicrous, namely, that the only justification for marriage is procreation. It simply did not occur to Charles Cooper that the strongest possible argument is that homosexuality is a demonstrable mental illness, that the Law is not intended to grant rights to the mentally impaired, nor is the Law meant to validate a lifestyle that furthers the spread of a mental illness throughout society and in the process undermining a plethora of social institutions while destroying all relevant case law since the founding of the nation, to a time when Thomas Jefferson, as governor of Virginia, wrote a statute that made sodomy a felony crime deserving death. . No, it all boiled down to procreation. Never mind that some couples cannot have children, that other couples who cannot do so nonetheless adopt children, that some marriages are between older men and women who are past child bearing age, and so forth. All that Cooper could think of, as you might expect of a certified imbecile, was an argument from procreation. . Still more amazed, Walker then asked: "What testimony in this case supports the position?" . Cooper's reply was: "You don't have to have evidence of this." . Guess not. And you don't have to win your case, either. After all, how does that vintage Disney song go? "Its great to be an idiot, its great to be an idiot, just like me." These may not be the exact words but if you're curious, just ask Cooper, I'm sure he has the lyrics memorized perfectly. . My experience in seeking to provide research help to Christians in other cases concerning homosexuality have led me to believe that Cooper is not an exception, he is the rule. Essentially most Christians don't know what in hell they are doing when it comes to the law, most are unwilling to do any meaningful research into the issue of homosexual psychopathology, and most are unable to frame a logical argument on social issues of almost any kind except in terms of the Bible, a book they don't really know all that well anyhow. . This is unfair to some Christians, there is no doubt about it, but as a generalization it holds up remarkably well. . In short, here is a case-in-point of my favorite axiom, "we have two parties in America, the Evil Party and the Stupid Party." To put it in alternative idiom: "Left-wingers have no conscience, Right-wingers have no brains." This is exactly what it amounts to. . However, the record of judges and Justices in deciding cases involving homosexual issues is even worse. There is no excuse for the kind of judicial irresponsibility we have seen in the years since 1973, especially in the 1980s and 1990s. Basically on this issue, members of the bench have swallowed whole whatever line of special pleading that homosexuals have wanted them to ingest. As far as I know, there has not been any independent judicial research on the issue, maybe a moot point for the eighties but highly relevant for all cases since 1993. That is, cases concerning homosexual demands, or citizen rejection of homosexual demands, have all been reached on the basis of ignorance. This is completely inexcusable. . Although not directly related to the issue of homosexual psychopathology, reference should be made to an outstanding article by Edward K. Cheng published in 2007 in the Duke Law Journal, "Independent Judicial Research in the Daubert Age." There is far too much important information in this article for it all to be cited here a few highlights should make the point: . While the bar is set high for admissible scientific evidence to be considered definitive in court, and clearly lawyers on the political Right may have difficulty in achieving any such thing, the same principle applies to the political Left, in this instance, homosexuals and advocates for homosexual interests, and attorneys representing a point-of-view congruent with APA (ersatz) findings can only have a much worse time of it due to the specious nature of the organization's research, Which is to say that of all the arguments I have read over the years, made by homosexuals and their supporters, all -all- is specious and indefensible if you actually know the subject. . Current law is consistent in prohibiting judges from employing outside consultants in order to become better informed about content -the facts of a specific case- but there is no rule against doing old-fashioned library study or reading articles in scholarly journals or in peer reviewed books based on diligent research. Few judges do any such thing but the argument to make is that they should, all of them should, or else we end up with an ill-informed judiciary. . The excuse made by many jurists, that the law requires them to approach cases as if their minds were tabula rasa is no argument at all. It is an excuse to be lazy, or to be biased, or to be ignorant. After all, every judge approaches every case with a 'memory bank account' filled with information of various kinds, his or her education does that not even counting private reading interests, and there is no such thing in reality as a blank slate. Far better on an issue like homosexuality for a judge to make genuine effort to learn as much reliable information as possible so that a decision is based on the best available current knowledge. Indeed, not to do so can be construed as dereliction of duty. . How can judges assess specialized knowledge or supposedly empirical claims with little or no knowledge of the field of study involved? This principle applies to chemistry and medicine, computer programming and high tech inventions, and so forth, and it applies just as much to a psychopathology such as homosexuality. . Although it can be argued that the law is defective inasmuch as a number of ambiguities remain which are unstated here, and Cheng makes a case for the need to reform legal procedures so that judges are clearly required to conduct independent judicial research, there are sufficient provisions of existing law to assert that without waiting for anything, such that any judge -and this includes Justices of the Supreme Court- should feel an obligation to do whatever research is necessary in order to understand a case no matter how technical or complicated, so that his or her decision will be based on the best current information or, in other instances, so that a judge will not allow use of dubious findings or false results. And to do so effectively also means that hard won knowledge is necessary. . As Cheng said, it is vital that cases should be decided on their merits regardless of the adversarial model in use generally. The "pro" vs. "con" formula should never be abandoned but it needs to be augmented so that the best -most plausible, most moral, most reliable- findings are reached. And, by the way, judges are allowed to question witnesses at will, which is important in many kinds of cases where establishing facts is difficult. Yet few judges use this freedom more than perfunctorily. This should also change -for the sake of decisions that serve citizens to best effect. To ask good questions requires a judge to know what he is talking about. . . There is much more in Cheng's well crafted and detailed article but this should be enough to get the idea across. Which is: . Several decades of decisions by the nation's courts on the issue of homosexuality should be thrown out as bad law. Apparently no judicial research was carried out in any of these cases, whether about homosexual so-called "rights" (a right to be mentally ill makes no sense whatsoever), about or so-called homosexual "marriage" or homosexual adoptions of children, or supposed homosexual rights to force religious believers to disobey their sacred scriptures, especially the Bible, the book that, more than any other, provides the foundation for our system of law. Concerning homosexuality, decisions by the courts of our country have almost all been tragic mistakes which need to be overturned. All judges and Justices who were parties to these miscarriages of justice should be removed from the bench and disbarred so that sanity on the issue of homosexuality can return to America. This is the point. -- -- Centroids: The Center of the Radical Centrist Community <RadicalCentrism@googlegroups.com> Google Group: http://groups.google.com/group/RadicalCentrism Radical Centrism website and blog: http://RadicalCentrism.org --- You received this message because you are subscribed to the Google Groups "Centroids: The Center of the Radical Centrist Community" group. To unsubscribe from this group and stop receiving emails from it, send an email to radicalcentrism+unsubscr...@googlegroups.com. For more options, visit https://groups.google.com/d/optout.
