Interesting little comment by the curmudgeonly clerk
on Justice Kennedy's supposed "180" on the right of homosexuals to be let alone. Everyone's favorite lunatic, Clayton Cramer (who apparently doesn't know how to spell his own last name) uses this as evidence of Kennedy's "180"
on sodomy laws:
"The Curmudgeony Clerk (a federal law clerk) points to another blogger's article about how Justice Kennedy went from a defender of sodomy laws (right after Bowers v. Hardwick
(1986) to writing the opinion in Lawrence
that overturned Bowers
Kennedy was not defending sodomy laws
, rather he was defending judicial restraint. Clayton obviously doesn't see the difference.
What's also surprising is neither the Curmudgeony Clerk, nor the person to whom he was reacting (some reactionary named Mark Trapp
) mention the fact that Justice Kennedy when he was a Judge on the Ninth Circuit, caught some flack from the right wing for the following comment in a case where he ultimately rejected a challenge by a person in the Navy who was discharged for engaging in homosexual conduct:
"The case before us lies somewhere between these two standards. We recognize, as we must, that there is substantial academic comment which argues that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual's right of privacy. See, e. g., L. Tribe, American Constitutional Law § 15-13 (1978 & Supp.1979) and authorities cited therein. . . . There is substantial authority to the contrary, however. The Supreme Court has issued a summary affirmance of a lower court decision denying a challenge to a state criminal statute prohibiting sodomy as applied to private consensual homosexual conduct. . . . In light of the above authorities, we can concede arguendo that the reasons which led the Court to protect certain private decisions intimately linked with one's personality, see, e. g., Roe, supra, and family living arrangements beyond the core nuclear family, see, e. g., Zablocki, supra, suggest that some kinds of government regulation of private consensual homosexual behavior may face substantial constitutional challenge." Beller v. Middendorf
, 632 F.2d 788, 809-10 (9th Cir. 1980) (Kennedy, J.) (emphasis added).
Guess the right wing was on notice that Kennedy would one day turn to the evil side. . . .