Michael Gaynor
Wendy Long supports traditional marriage and constitutional fidelity, not same-sex marriage and judicial activism
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By Michael Gaynor
June 1, 2012

Long was not dissuaded by the advice of those friends concerned that she would be slimed and chose to run to set an example for her children. Those friends were insightful, but Long was right.

In Lawrence v. Texas, 539 U.S. 558 (2003), the United States Supreme Court struck down the application of a Texas sodomy statute, 6 to 3, as lacking any rational basis and overruled its prior decision in Bowers v. Hartwick, 478 U.S. 186 (1986) in the process.

Justice Scalia, in a dissenting opinion joined by both Chief Justice Rehnquist and Justice Thomas, explained: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.... The impossibility of distinguishing homosexuality from other traditional 'morals' offenses is precisely why Bowers rejected the rational-basis challenge. 'The law,' it said, 'is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.'"

Justice Scalia further stated that "the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack" is a "proposition...so out of accord with our jurisprudence — indeed, with the jurisprudence of any society we know — that it requires little discussion."

That "little discussion" follows in its entirety.

"The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable,' Bowers, supra, at 196 — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, 'furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,' ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that 'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,' ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."

Talk radio star Laura Ingraham and current candidate for United States Senator from New York Wendy Long are Dartmouth graduates, friends and former law clerks to Justice Thomas and in 2010 Ingraham interviewed Long about the California litigation seeking to establish a constitutional right to same-sex marriage, shortly after Chief District Court Judge Vaughn Walker had ruled that California's Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

Ingraham asked Long whether she was surprised by the ruling and Long replied: "...sadly I'm not. This has been a slow motion train wreck that has been unfolding for years, as you said. Go back to Lawrence v. Texas, even before then. It has been unfolding in ugly and graphic detail and it keeps replaying in my mind. We knew this was coming; we've tried to warn of it for years as we've had presidents appointing more and more liberal activist judges to the federal bench. We've seen it coming down the pike, and here we are now, really on the precipice of losing not only a fundamental building block of a stable society — that is, one man, one woman marriage — but we are also on the precipice frankly of losing our right and privilege of self-government that has been ours for 234 years."

Long described the ruling as "the classic, prime example of judicial tyranny...and...a classic example of a revolution devouring its own children."

Long continued: "These are all wrapped in these beautiful principles of the American Revolution, and then the things you talk about and recall in the Obama diaries about Reagan saying that this is a shining city on a hill, it's the best example of freedom in the history of the world, and this American republic, this great experiment, is really being crushed in the name of its principles, just like in France, where we get the expression of the revolution devouring its own children. Because these gay rights activists are invoking these scenes of fairness and trying to crush all opposition, the way these elites do, crush all opposition, its not fair, its not objective."

Long proceeded to explain that the trial had been as flawed as the ruling.

"What's incredible to me Ted Olsen [attorney challenging Proposition 8] says that these are wonderful witnesses, and in the clip you played that the court carefully analyzed the wonderful evidence. It was a sham. This was a sham trial, and I'm shocked to hear Ted say that. We already knew that he had betrayed the Constitution in the side that he took in this litigation, but what's incredible to me is he's now betrayed even the ideals, the high ideals of good litigation, because the witnesses that he put on weren't neutral, scientific experts, they were all hard core culture warriors in the battle for gay rights. They weren't neutral experts, and Judge Walker, as many of your listeners probably know, is not a neutral judge. He is an openly gay jurist who is in a long-term committed relationship and stands to profit both personally and financially from the outcome of this decision. Everything about it, from the witnesses to the judges to the way that this is being presented is completely wrong, and not surprisingly, on its merit as a judicial decision, the opinion is just laughable."

To a constitutional scholar and former Justice Thomas law clerk who believes in the rule of law instead of judicial activism like Long, the opinion was "laughable" ("laughable as a judicial matter" as she elaborated later in the interview) as well as wrong.

Long then commented as follows on the specifics of the decision.

"Judge Walker said, first of all, that there is a fundamental right to same-sex marriage, and there is no rational basis, none at all, not even a shred of the tiniest rational basis, that's the lowest test in the law for constitutional scrutiny, no rational basis to support the law. He's clearly wrong.

"First of all, on the fundamental rights point, fundamental rights are rights that are deeply rooted in our nation's history and traditions. Same-sex marriage is not, it just isn't. I think that we have to approach this issue on both sides with sensitivity and care, and be really accurate. I mean there are people, you and I both have friends and loved ones who are gay and care a lot about this. We owe it to everybody on all sides of this to be honest and fair and accurate. Same-sex marriage is not deeply rooted in our nation's history and traditions. It just isn't a fundamental right. And so he has ripped this important policy question about the structure and meaning of marriage from the hands of the people who in our democracy for 221 years have decided it for themselves and he has completely turned his back on millennia of all organized religions and morality who say that this is wrong. Suddenly it's completely fundamental to the American republic to have same-sex marriage. It's just laughable; it's not good legal analysis.

"The other thing he said was that there is no rational basis to support it. What he said was, 'The evidence shows conclusively that moral and religious views form the only basis for belief that same-sex couples are different from opposite-sex couples.' Moral and religious views. He's saying that moral and religious views can't possibly be rational. That's what he's saying. It's just unthinkable, it's crazy. And what's amazing is that somebody like Ted Olsen can come out there and say that this is a respectable judicial decision."

Long deemed the decision "obviously biased and irrational" and Ingraham then asked, "is there anything that you see after going through this 100-plus page opinion that would prevent others in the future, if this ultimately is upheld, from others arguing for other forms of marriage whether it's polygamy, or marrying the Eiffel Tower, as one woman did a couple of years ago, or marrying yourself. I declared myself marriage, by the way, at the beginning of the show. I'm married."

Long replied: "Laura, you've just asked the perfect question, and that should have been examined more as a legal matter. It wasn't, it's a serious question, it's not a joke. For example, when my mother was very ill, I couldn't get health insurance coverage for her. I would have, I love my mother deeply, I would have married her to get that health insurance coverage. Why can't I? Who says I can't marry my mother? You and I love our dogs. Who says we can't marry our dogs? The rationale — and it's not to cast any aspersions or to discredit my mother or the dog — it's simply saying there are no principle distinctions. There's no principle distinction to why you and I and five other people can't get married, if we wanted to form a commune and say we are married."

It's no joke when morality is dismissed as irrational and Long so rightly pointed out what Justice Scalia had pointed out — that morally based laws against incest and bestiality and polygamy were as susceptible to being ruled unconstitutional or unconstitutionally applied as the Texas sodomy statute.

In addition to being superbly qualified by education and experience to be a United States Senator, Long is a Catholic convert, a wife, a mother of two, a catechism teacher and a trustee of a Catholic college.

For obvious political purposes, those who cannot refute Long's (and Justice Scalia's) valid legal analysis have resorted to Alinskyite ridicule and charged or insinuated such things as Long yearned to marry her mother and/or her dog to try to discredit her. See the absurd and/or vile comments at www.huffingtonpost.com/2012/05/29/wendy-long-gop-senate-gay-marriage-new-york_n_1552636.html.

In her address to the New York State Conservative Party Convention last March, Long related that some of her closest friends had warned her against running, saying "Wendy, don't do it. Politics is a dirty business, and especially in New York. They'll try to ruin your reputation, and they'll make your children cry."

Long was not dissuaded by the advice of those friends concerned that she would be slimed and chose to run to set an example for her children. Those friends were insightful, but Long was right.

Long also is optimistic.

Long concluded that interview by opining as follows what would happen when the California case reached the United States Supreme Court.

"...obviously, the pivotal vote on this as always is going to be Anthony Kennedy, but I have some hope that he might do the right thing. There are some distinctions between this and the Lawrence case. I'm not as doom and gloom as some people about that, because here we have people coming to seek a benefit from society, and that's what distinguishes this from the Lawrence case.

What distinguishes Long are her traditional American values, brilliance and willingness to fight for those values instead of being intimidated.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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