Alex Blaze

John McCain promises to re-criminalize homosexuality

Filed By Alex Blaze | August 19, 2008 5:00 PM | comments

Filed in: Fundie Watch, Marriage Equality, Politics
Tags: John McCain, judges, Lawrence, Rick Warren, sodomy laws, Supreme Court

This deserves its own post separate from the one I wrote on Rick Warren's presidential forum earlier. No, he doesn't say that in so many words, but that's exactly what would happen:

Neither candidate shied away from a question about which current Supreme Court justice they would not have nominated.

Obama's reply: Clarence Thomas.

"I don't think he was a strong enough jurist or a legal thinker at the time for that. I profoundly disagree with his interpretation" of the Constitution, he said.

McCain said he would have never nominated Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens.

"This nomination should be based on the criteria on a proven record of strictly adhering to the Constitution and not legislating from the bench," McCain added.

Those are the exact people sitting on the bench, minus Kennedy, who voted in favor of the Lawrence v. Texas decision that banned sodomy laws. He pretty much said that he wants to recriminalize homosexuality.

There isn't much better code to speak in here. The very fundies that he was speaking to at that forum were exactly the people who thought that Lawrence, along with Roe and Griswold, was an extreme case of judicial activism:

In 2003, in Lawrence v. Texas, the court threw out all bans on sex acts between homosexuals, saying, according to Barron, "The right to privacy also included the right for same-sex couples to engage in same-sex sexual acts."

And later in 2003, when Massachusetts legalized same-sex marriage in Goodridge v. Department of Public Health, it cited Lawrence v. Texas as justification.

Sekulow sees these rights expounded in Goodridge and Lawrence going straight back to Griswold.

"If you see a decision out of the Supreme Court that says same-sex marriage is required -- if that were to happen, I think they will find it primarily...originally...in Griswold, and bring it forward," Sekulow observed.

While it seems like the media doesn't really want to catch this goal (gay rights discourse is focused on marriage, and Lawrence seemed like a final decision to almost everyone), but McCain was talking to the exact audience that would want that case overturned, who agree with his reasoning, and he named almost every justice in that majority in his hit list.

Besides, whether he ever talks about wanting to reinstate sodomy laws or not, this is the most effective, direct, and, well, only way for sodomy laws to come back. And he's made it a central talking point when addressing fundamentalist audiences.

We shouldn't forget how easy it would be for that case to be overturned and to go back to the days when we were criminals just for loving.

Update: This is also a major flip-flop:

McCain wasn't a senator when Stevens was nominated, but why did he nevertheless vote to confirm Ginsburg, Breyer, and Souter?

It seems he was for them before he was against them.

Will anyone pick up on this and ask him? Doubtful.

But even if he is flip-flopping here, I see no reason to doubt him. He only cares about killing people and getting money, so it's unlikely that he was lying here but that he'll nominate decent human beings to the Supreme Court. He'll do whatever the Religious Right wants on judicial nominations because he just doesn't care.


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This a real - not hypothetical - danger. The right has successfully changed the lexicon.

"Legislating from the Bench" means a judicial decision that the Christian Right doesn't like. Similarly, "activist judges" are those who make a decision that the Christian Right doesn't like.

In fact, activist judges are those who do not respect res judicata like Scalia. That is legislating from the bench.

McCain is just a simplistic panderer. He's reading whatever crap they hand him on 3x5 cards. He just wants to be elected.

McCain is just a simplistic panderer. He's reading whatever crap they hand him on 3x5 cards. He just wants to be elected.

You said a mouthful there...

Excellent point, Alex; to which I will amplify by reminding everyone that the same legal principle by which the sodomy laws were overturned - the right of privacy - is the same one which allowed the *legal sale* of birth control, as well as safe, legal, abortions. Conservative judges do NOT believe there is a right to privacy in the US Constitution.

I had this exact conversation with some family members last night who don't understand the legal history of Roe v. Wade. People are so honed in on the abortion issue (which is important), that they don't *get* that if Roe is overturned, so will Grunwald and Lawrence.

Thanks, Alex... you've made a perfect point.

The reversal of Lawrence is critical to the Right. You cannot marry people whose sexual orientation has been criminalised. A Republican majority with a Republican President and a Conservatiev Court can make this happen on the federal level..

Alex - I do not think you have a strong argument on the flip-flop issue. Asking whom one would nominate if he were President is not at all the same as asking whom a senator would vote to confirm.

That said, I agree that McCain is pandering to the theo-fascist right and appealing to their worst instincts.

And I agree with you, Rory and Davkd that 'Lawrence v. Texas' is in real danger if McCain is elected. Justice Scalia has waged an unrelenting campaign to overturn Lawrence since the day it was decided. He sees it, probably correctly, as precedent for a similar decision on same sex marriage; so it has to go. And he already has three reliable SC allies in his determination to erase the right to privacy and all it entails.

In my analysis of this situation, it seems to me that you need three things in order for sodomy laws to be re-enacted: (1) a Constitution (i.e., a US SUpreme Court ruling) that allows it; (2) a state legislature that is willing to re-pass it; and (3) a state population that will tolerate it.

Even given (1), there are many states whose legislatures might think twice before re-enacting sodomy laws --- keep in mind that there is a whole new generation under 30 that they will have to contend with. Even given (2), there are several states where I doubt the new law would be allowed to stand: I expect that states that rescinded their sodomy laws before Lawrence would often be unlikely to re-enact them. Of course, some of the more draconian states, such as Georgia or Texas, might try it.

Those of us who are openly GLBT have been given a window in history in which to exercise our freedom, and it is up to us to keep that window open. The reality of democracy is that History might call us in any era to do whatever it takes. As is said more generally, "freedom isn't free" --- it doesn't come, nor is it maintained, without its costs.

Am I afrid that sodomy laws will be re-enacted? Well, I openly helped organize protests against them before, and if needed I can openly protest them again.

I think reversal of 'Lawrence' would automatically reinstate anti-sodomy laws in the 16 states that had them at the time of the original decision. That's most of the South plus three of Mitt Romney's faves - Idaho, Utah and Michigan. Unless some of them rescinded the laws in the meanwhile.

It's not too farfetched to be concerned that a McCain victory (2-1 probability, I'd say) plus passage of the anti-marriage initiatives in FL, AZ and CA would be seen as giving the theofascists the 'mandate' they want to 'roll back the gay agenda.'

Bill Perdue Bill Perdue | August 20, 2008 12:51 AM

The Democrats are showing definite signs of panic at the widespread, angry reaction to Obama’s lovefest with the bigots in Orange County on Sunday.

Perhaps that explains why Alex, donning the ecclesiastical robes of Cotton Mather, is trying to scare the bejezus out of us with his fanciful threats of fire and brimstone if we don't honor the Word of Obama come Election Day.

Are we really dangling like a spider on a web over the firepits of hell? Will we burn in eternity if we don’t vote for the Democrats? Probably not. It still looks like the Democrats will win the Congress handily and probably snare the White House. Although with supporters of judicial bigots like Feinstein in the Senate and Quisling Frank in the House, that’s not exactly good news.

On the courts: if my count is correct seven of the nine Supremes who passed Lawrence were appointed by Republicans, and the majorities who passed the California and Massachusetts same sex marriage rulings were Republican. This hysteria over the courts is a non-issue, a scare tactic. We win in the courts and the legislatures only when we build mass sentiment for our agenda and direct our movement towards mass action to compel them to see it our way.

In the GLBT communities the truth is beginning to sink in, people are beginning to add it all up:
o – Obama’s bigot lovefest with bigots in Orange County
o - Obama’s incessant reminders that his dogmatic christist prejudice is why he opposes same sex marriage
o - Obama’s history of camouflaging southern-style christist revival meetings featuring swine like Donnie McClurkin and Mary Mary
o - Obama’s infamous endorsement of bribing pulpit pimps with donations to their faith based ‘charities (read new manse, a luxocar, lots of drugs and a hustler and or mistress.)
o – Obama’s obedient towing of the line on the war and extending it, NAFTA, taxing the rich while cutting entitlements, socialized medicine, his support for gutting the Fourth Amendment etc. etc.

We’re seeing the growth of the awareness that these aren’t isolated events. They’re Obama’s strategyn not his tactics. And that in turn is fueling the sentiment that Obama may not be the lesser of two bigots after all.

Obama’s already won the bigot vote with his strategy of pandering to them. That’s a done deal. If the bigots elect Obama they’ll own him. Ask George Bush. Ask Bill Clinton. But don’t be silly enough to ask any of them to do us any favors. That’s not going to happen. Not now, not ever. We’ll just have to get used to fighting for our rights instead of depending on sellouts to give them to us.

Perhaps that explains why Alex, donning the ecclesiastical robes of Cotton Mather, is trying to scare the bejezus out of us with his fanciful threats of fire and brimstone if we don't honor the Word of Obama come Election Day.

I love it!

And honor the Word of Obama? I was just critical of him two posts below. This is real. Clinton, no matter what he did in office in terms of policy, nominated Bader Ginsberg, the most reliable voice of the left on the Supreme Court.

Bill Perdue Bill Perdue | August 20, 2008 9:25 PM

I thought you'd like the Cotton Mather thing, and yes, I both see and admire that you and several other people at Bilerico can still criticize Obama. That’s not easy when election frenzy reaches high tide.

But we do draw different conclusions about what it means. I'm sure that opinions about Obama change dramatically after he's elected. That’s assuming the Republican and Clintonite swift boaters and racists haven’t made him unelectable and I honestly don’t think we’ll know until November 4th. Today’s LA times says "More striking than the head-to-head matchup, however, is the drop in Obama's favorable rating" which "has sunk to 48% from 59%... At the same time, his negative rating has risen to 35% from 27%." The worst news for Obama is that race baiting and islamophobic racism are having an effect. The Times goes on to say "Most voters say they know at least some people who feel uneasy about electing a black president; 17% say the country is not ready to do so."

As for the courts, it could be composed of Bader Ginsberg and eight clones but if we didn't have a powerful and pushy movement noting good would ever come out of the court. As it is with a seven to two Republican majority we still got Lawrence, and it was a magnificent victory. Bet we won it because of all the long hard years of struggle since Barbara Gittings and Frank Kameny began trudging back and forth in front of the White House in the 1950's.

It certainly wasn't because those judges like us; it was because they're afraid of the destabilizing effects of big, pushy movements.


Robert Ganshorn Robert Ganshorn | August 20, 2008 2:28 AM

I would think that good manners alone would prevent either candidate from suggesting which justice (with lifetime appointment so it is a moot point)they would not have nominated. This is more a means of an aspiring candidate to blame the courts for rulings they are too chickenhearted to have made themselves.

I fault McCain more for this than Obama as he is not a legal scholar and Obama would have an educated opinion as a former Editor and President of the Harvard Law Review and magna Cum laude graduate.

This question also weakens the court and the confidence of the public in it which is a pathway to disintegration. I would not like to see a fully inclusive rights amendment handed down by a weakened court.

I agree that the question was impolite. Really, it doesn't do anything to help us understand the candidates that couldn't have been discussed with a more abstract discussion of judicial philosophy.

I wouldn't call them impolite for answering, though, if they had each picked one. They're up on stage, there's a lot of pressure, and they're going to try to answer the question directly. But did McCain have to pick 4? That's seems a bit gratuitous since he was asked for one name.

Very well argued point

Though we should also not forget that this is also about abortion. Each of those four justices that were on the bench in 1993 voted to uphold Roe in Planned Parenthood v. Casey, and the other two would be solid votes in favor. If McCain is elected, Roe will survive only as long as John Paul Stevens does (he's 88 today).

The McCain campaign announced that it is returning the money. It's like an O. Henry story. The guy lost his job over the contribution, and his candidate didn't even want it.

I was rather surprised that either would name Supreme Court Justices that they wouldn't have supported. I bet the policy aides on both sides were cringing at that question, and cringing harder at the answers. After all, the Supremes decided the election in 2000, and would it surprise anyone if that happened again in 2008? I would have answered that there were Justices I agreed with more often than others, but that I respected all of them. However, I am not running for President, so i can say what I think.

That stated, if you ever needed to know why you should vote for Obama and not McCain, then judge them on who they don't think belongs on the Court. There is no doubt that Clarence Thomas is intellectually unfit to serve, and should never have been confirmed. Antonin Scalia is an archconservative throwback to the mid-1800s, and Alito and Roberts are corporatist hacks. I think it's clear that Obama will nominate more Stephen Breyers, not more Scalias, and with Ginsburg being a multiple cancer survivor, Roberts being prone to seizures, and Stevens being nearly 90 years old, you know the next President will be making a couple of Supreme Court nominations. If McCain makes those appointments, you can kiss GLBT rights goodbye.

"Legislating from the bench" works both ways, and the GOP will do it when they get the chance. The biggest legislators from the bench I've ever seen are Scalia and Thomas. I hope Antonin the Reptile continutes to go hunting frequently with Dick Cheney, in the hopes Duellin' Dicky might shoot Scalia's ugly face off one of these weekends.

"I would not like to see a fully inclusive rights amendment handed down by a weakened court."

Robert G. - you lost me here. What sort of 'amendment' could the Supreme Court hand down? The SC renders decisions on specific cases. They can be narrow in scope, or fairly broad - but 'fully inclusive'?

And given that the next two, if not 3 or 4, justices to leave the court are the most 'liberal,' even in the unlikely event that Obama is the next President there is unlikely to be any sort of gay-friendly or 'privacy-oriented' majority on the SC for the next decade or more.

Robert Ganshorn Robert Ganshorn | August 21, 2008 4:05 AM

Sorry, amend my sentence to read "decision."

Nobody is shocked over this are they? I mean really, ask yourselves if you did not already sense this about McoldFuck?

I don't mean his age either. Remmember that Obama explained the PIG as the same old republican ideas that are endlessly repeated.