Oetken sidesteps questions on brief in sodomy case

Paul Oetken

Gay court nominee says arguments in brief he wrote for Lawrence v. Texas expressed his client’s views, not necessarily his

LISA KEEN  |  Keen News Service
lisakeen@mac.com

When openly gay federal district court nominee Paul Oetken went before the U.S. Senate Judiciary Committee in March, Sen. Charles Grassley was the only Republican who showed up.

 

He introduced Oetken, who was born in his home state of Iowa, but had no questions.

But not all questioning takes place in front of cameras. Some takes place on paper, and that’s where Grassley grilled Oetken over his positions on gay-related issues, and Oetken responded in a way that might make some LGBT activists cringe.

“Do you personally believe that government classifications based on sexual orientation deserve a heightened level of scrutiny?” asked Grassley, in one of 17 questions to Oetken.
Grassley’s question concerned a brief Oetken wrote for the National Gay and Lesbian Bar Association and submitted to the U.S. Supreme Court in support of overturning laws prohibiting same-sex sexual relations.

The case was Lawrence v. Texas and, in 2003, a majority of the Supreme Court did overturn such laws. Oetken’s brief argued that the courts should use the strictest form of scrutiny when examining laws that treat gay people differently.

In responding to Grassley, Oetken put some distance between himself and the brief, saying, “I have not expressed a personal view on this subject. The arguments in the amicus brief that I co-authored in Lawrence v. Texas were arguments made on behalf of clients.”

“Although I believed that there was a good faith basis in Supreme Court precedent for making those arguments [in the brief], they do not necessarily reflect how I would approach these issues as a district judge,” wrote Oetken.

Oetken also put some distance between his brief and the Supreme Court’s decision, noting that, “The Supreme Court in Lawrence v. Texas did not decide that case under the Equal Protection Clause, but rather under the Due Process Clause, and it therefore did not decide the issues addressed in my amicus brief in that case.”

Oetken also said, “If confirmed as a district judge, I would apply the applicable precedents of the Supreme Court and the Second Circuit.”

Republican Sen. Jeff Sessions also submitted written questions about Oetken’s brief in Lawrence. Sessions noted that Oetken had argued that the issue of physician-assisted suicide should be decided by each state legislature.

He quoted Oetken saying, the issue of physician-assisted suicide “should stay where it belongs, in the legislatures” because the states’ “varied approaches to the issue may, over time, aid in forming a national consensus, making it possible for Congress to resolve it through national legislation.”

But Sessions was interested in how Oetken could argue, in 2002, to leave the suicide issue to the states and then argue, in 2003, “that Texas’ anti-sodomy law was something that warranted federal intervention. …”

Oetken, again, noted that the Lawrence brief included “arguments made on behalf of clients.”

His argument to leave the suicide issue to the states, he said, was appropriate given that there was no federal legislation addressing it.

Oetken’s nomination was reported out of committee on April 7 and is awaiting a vote by the full Senate.

© 2011 Keen News Service. All rights reserved.

—  John Wright

Bill would ease sexting penalties, but consensual gay sex can still be a felony for teens in Texas

Attorney General Greg Abbott

Texas Attorney General Greg Abbott is endorsing legislation that would ease criminal penalties for teens who are convicted of sexting — transmitting explicit photos of themselves or other minors using computers and mobile devices.

Currently, teens who send or receive photos of someone who is underage can be charged with third-degree felony child pornography, punishable by up to 10 years in prison, and forced to register as sex offenders for the rest of their lives.

Under SB 408, which was filed today, sexting would become a class-C misdemeanor for first-time violators who are under 18.

“Studies show that teenage students are increasingly taking, sending and receiving explicit pictures of themselves on their mobile telephones,” Abbott said in a press release. “This dangerous trend is harmful to young Texans. We are joining with Sen. Kirk Watson to address the growing problem of sexting and educate – not criminalize – young Texans who make the unwise decision to participate in it.”

For once we agree with Abbott here. This bill makes sense for both straight and LGBTQ teens, and perhaps especially for gay teens in the age of Grindr, etc.

But if our attorney general truly supports the concept of not criminalizing teens, he should also support efforts to fix the state’s discriminatory age-of-consent laws, commonly referred to as “Romeo and Juliet” provisions.

As we’ve noted before, if a 17-year-old MALE has consensual sexual contact with a 16-year-old MALE in Texas, the older individual can be charged with a second-degree felony and sentenced to up to 20 years in prison. On the other hand, if the older individual is MALE and the younger person is FEMALE (or vice versa), the older person can argue an “affirmative defense” and have the charge dismissed on that basis.

In other words, while SB 408 would make sexting a class-C misdemeanor, gay teens who have consensual sex, unlike their straight peers, have no defense against a charge of indecency with a minor.

Rep. Garnet Coleman, D-Houston, has introduced bills in previous sessions that would fix this discriminatory law, but there’s no word on whether he plans to do so this year.

Even if he does, don’t expect Abbott to support it.

UPDATE: Coleman’s office confims that he does plan to file the bill again this year.

—  John Wright

This is what happens when people like State Rep. Sally Kern condone heterosexual bestiality

Believe it or not, anti-gay Oklahoma State Rep. Sally Kern once suggested that she believes bestiality is OK as long as it’s heterosexual. It’s true: She made the statement during an interview with Sirius XM Radio’s Michelangelo Signorile about Kern’s book-banning campaign way back in 2005 — long before she became such a famous bigot.

In a column published by The Windy City Times, Signorile wrote that he asked Kern whether she shouldn’t try to ban Snow White and the Seven Dwarfs, since Snow White kisses a frog. “The difference there,” Kern responded, “is that that is still in the heterosexual lifestyle.”

Well, it appears as though five years later, one married heterosexual couple from Bethany, Okla. — which is in Kern’s district and backyard — may have taken her words to heart. The Oklahoman reports:

Edward James Double, 35, and his wife, Brandy Teresa Double, 35, were jailed Tuesday on complaints of bestiality, exhibition of obscene materials to minor children, maintaining a disorderly house, possession of illegal drugs and soliciting sexual conduct with a minor. Edward Double also faces a complaint of indecent exposure.

“We’ve recovered videotape of people having sex with animals,” Bethany Police Chief Phil Cole said. “It’s disgusting. And we pray that none of the kids have been molested.”

Cole said upon review of the video evidence, recordings were found of the Doubles having sexual relations with a canine. Investigators were able to determine the recordings were made in the master bedroom of the home. Investigators also found 6 grams of marijuana and paraphernalia in the home.

Three dogs were taken from the residence, Cole said.

The story doesn’t indicate the sex of the dogs, but as long as the marriage was between a man and a woman, right? Who knows, maybe Kern can try to get these fine upstanding heterosexuals a pardon.

—  John Wright

Texas Rep. Louie Gohmert: Homosexuality is adultery in the Ten Commandments

Discussing “don’t ask don’t tell” on the Family Research Council’s Washington Watch Weekly radio program on Friday, Congressman Louie Gohmert, R-Texas, offered his response to those who point out that the Bible — if you read it closely and all — doesn’t really appear to condemn homosexuality per se:

“Some people say, ‘Where is homosexuality in violation of the Ten Commandments?’ Well, it’s adultery. It’s sexual relations outside of marriage, a man and a woman. Of course there are other verses that reference these specific acts, men lusting after men, etc., but specifically for the military, when anyone, whether they’re homosexual or heterosexual, cannot control their hormones to the point that they are a distraction to the good order and discipline of the military, then they need to be removed from the military.”

Gohmert goes on to agree that if DADT is repealed, the military would have to change its policies to allow “heterosexual immorality.”

“Well of course it would,” he says. “Well, I say of course it would. You would think that. But of course we’ve already shown through Congress that homosexuality deserves a more precious and privileged position just by some of the laws that we’ve passed.”

Gohmert is likely referring to the Matthew Shepard and James Byrd Jr. Hate Crimes Act, which he suggested last year could lead to the legalization of things like pedophilia, necrophilia and bestiality.

—  John Wright