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Friday, August 13, 2010

Torturer's Apprentice John Yoo Says It's Constitutional to Ban Gay Marriage

Posted By on Fri, Aug 13, 2010 at 2:27 PM

click to enlarge John Yoo
  • John Yoo
You gotta hand it to John Yoo, the former Bush Administration attorney who provided a legal rationale for torturing prisoners of war. It must be tough being an anti-human-rights playa in the midst of Collectivist Berkeley, where Yoo is a professor of -- wait for it -- constitutional law.

But Yoo has never backed down from the poor legal reasoning that led him and other Justice Department officials to authorize inhumane treatment of prisoners, and he's now taken a provocative stand on another question of civil rights: gay marriage.

In an op-ed published this week in the Wall Street Journal, Yoo asserts that U.S. District Court Judge Vaughn Walker erred in his decision to overturn Proposition 8, the 2008 ballot initiative that amended California's constitution to ban same-sex marriage. While Yoo says he "supports gay marriage as a policy matter," he argues that Walker "short-circuited the Constitution's democratic process for the resolution of moral disagreements" and should have left the question of the right of gays to marry up to California voters.

If we understand Walker's eloquent ruling correctly, Yoo is missing the point -- the issue of same-sex marriage is not one of "moral disagreement," but a question of all citizens having access to the civil and secular benefits enjoyed by couples whose unions are recognized by the state and federal government. And that's not the only point Yoo misses. He goes on to scoff at the notion that Prop. 8 "only represented irrational contempt against gays by the people of California," arguing, "Anyone who lives in this bluest of blue states might be forgiven for laughing out loud at the charge of bigotry."

click to enlarge Ted Olson
  • Ted Olson
This statement demonstrates that Yoo's legal confusions are matched by a lack of political acumen -- California, as any politician, journalist, or activist could tell you, is no "bluest of blue states," but a left-leaning swathe of urbanized coastline joined with vast territories to the east, north, and south that blaze bright red. The idea that Californians have, as a whole, moved beyond prejudice toward gays and lesbians is, well, plain stupid.

Finally, we can't help wondering whether Yoo's proclamation on gay marriage is meant as a finger in the eye of one of his former higher-ups at the Bush Justice Department -- former Solicitor General Ted Olson, who represented the plaintiffs in Perry v. Schwarzenegger. Olson survived the Bush years with his reputation and integrity largely intact. Yoo did not, and he's certainly not helping himself by continuing to publish controversialist, prejudiced propaganda thinly veiled as legal reasoning.

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Peter Jamison

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