Bryan Fischer
Virtually impossible for open lesbian to make a good Supreme Court justice
By Bryan Fischer
May 9, 2009

As I wrote Thursday, Sen. Jeff Sessions, who is heading up the GOP response to Sen. Obama's pick to replace David Souter on the Supreme Court, is sending some alarming signals about his willingness to vote for someone who engages in non-normative sexual behavior and who believes it's okay to chop up babies in the womb.

Sessions has said he would consider voting for a nominee "who acknowledges that they (sic) have gay tendencies." Two open lesbians are being pushed on Obama by homosexual activists.

A Focus on the Family representative surprisingly said that a potential nominee's sexuality is "not even pertinent to the equation" and "should never come up."

Disastrously, Sessions has already said on Fox News that, with regard to the sanctity of life, "I don't believe in a litmus test. I believe a judge can have a different view on abortion than I have, and still receive my vote." When asked directly if a pro-choice nominee could win his vote, Sessions answered unequivocally, "Yes."

Unfortunately for Sessions, Obama will have a litmus test, and that will be unqualified support for abortion on demand. How is it possible for the GOP to mount any effective resistance to an abortion advocate when its leader has already surrendered the flag?

The problems with Sessions and Focus on the Family taking a complete pass on the sexual orientation of a potential nominee are serious and manifold, and likely would bring to an abrupt end any hope that the United States can continue to have laws based on moral standards and concepts.

As Rep. Henry Hyde famously and profoundly said, "Politics is the extension of ethics." In other words, everyone has a set of ethical standards, and when those standards are extended, they eventually intersect with the world of public policy. Thus an individual's personal ethical standards cannot help but have a profound impact on his view of politics and the law.

An open lesbian has obviously resolved the ethical questions about sexuality in favor of the legitimacy of aberrant sexual behavior, in favor of what historically has been known in U.S. law as an "infamous crime against nature."

It's one thing for a judge to keep his orientation a private matter. There is some evidence that perhaps two Supreme Court justices of the past were homosexuals themselves. But they concealed that from the public, accepted that the laws of the day considered homosexual sexual activity a felony offense, and did not use their platform on the bench to challenge society's sexual standards.

But a judge who is quite open about his (generic use) alternative sexuality is another matter entirely. It's hard to imagine any universe in which an open lesbian would uphold any pro-family law should it be challenged in her court.

It will be absolutely incumbent upon the GOP members of the Senate judiciary committee to ask probing questions of a lesbian nominee on a host of issues that are matters of legal and constitutional dispute.

The judge almost certainly will refuse to answer, taking the dodge that previous jurists have taken, but if a lesbian candidate will not answer such straightforward questions, it will be clear that the public cannot trust her with the culture-altering power of a Supreme Court position.

If the public ever had a right to know about anything, it most certainly has a right to know how a lesbian judge's view of sexual morality will affect her jurisprudence.

Here is just a sample of the questions that such a candidate must be asked:

  • Do you believe that the Defense of Marriage Act, which defines marriage under federal law as the union of a man and a woman and protects states from being forced to recognize lesbian marriages performed in other states, is constitutional?

  • Do you believe that state constitutional amendments which prohibit recognition of same-sex marriages are permitted under the federal Constitution?

  • Do you believe that organizations such as the Boy Scouts are constitutionally permitted to refuse the appointment of homosexual Scoutmasters, and that it is unconstitutional for them to be discriminated against because they do?

  • Do you believe it is constitutionally permissible for adoption privileges to be denied to lesbian couples, on the grounds that children need and deserve both a mother and a father?

  • Do you believe private businesses have a constitutional right to refuse to hire lesbians because such a hire would not be in keeping with the values they uphold and want to present to the community?

  • Do you believe that churches who teach that homosexuality is a sin should have the right to maintain their tax-exempt status?

  • Do you believe that Christian photographers, to use an example, have a right to decline to photograph lesbian commitment ceremonies, and should be exempt from judicial punishment if they do?

  • Do you believe that public schools have a constitutional right to teach their students that lesbianism should not be accepted as a normal and legitimate alternative to heterosexual marriage?

  • Or do you, on the other hand, believe that public schools have a constitutional obligation to teach students that lesbian behavior is both normal and acceptable?

  • Do you believe that polygamists have the constitutional right to marry as many spouses as they would like, on the grounds of the Constitution's guarantee of equal rights?

The list could be multiplied ad infinitum, but it is clear that the range of issues affected by a lesbian appointment are vast and immensely troublesome for those who believe, as John Adams, did, that, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

Further, justices are human beings and would certainly feel a strong pull to rule with a lesbian colleague on matters of sexuality just to avoid the awkwardness that otherwise would result.

I once approached an openly lesbian lawmaker, with whom I had differed on a number of prominent issues, to tell her that although we had pronounced differences on certain public policy matters, I had no personal animosity towards her and hoped that our differences would not keep our relationship from being a cordial one.

She told me quite directly that it would simply be impossible for her to have any kind of friendly relationship with me because of my views on homosexuality and public policy.

This same social dynamic on the Supreme Court would make all rulings on moral issues intensely personal and would likely take the eyes of the justices off the law and the Constitution and incline them toward injustice and immorality just to avoid giving offense to a co-worker.

Someone who denies that such pressures exist has a naïve and shallow understanding of human nature. In fact, the more "empathy" judges have, the more likely they are to allow personal feelings to influence their rulings, pushing the Court further away from objectively applying the law and towards rulings that are increasingly subjective, personal, and based on emotion rather than law.

Bottom line: the quickest way to shred what remains of America’s moral foundation may be to appoint an open lesbian to the Supreme Court. If the pro-family community does not want to get rolled on this issue, it had better speak up and speak up now.

Josh Gerstein's Blog: Is right softening on gay judges? —

The Hill's Blog Briefing Room » Sessions: I could support a pro-choice nominee

Sessions Open to "Gay Tendencies" | TPM

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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