Delegate Bob Marshall of Virginia created a lot of controversy last week when he challenged what should have been the procedural approval of Tracy Thorne-Begland to be a state district judge. Prior to Marshall’s disapproval, Thorne-Begland had bipartisan support.
Thorne-Begland’s credentials are impressive with years of solid legal work behind him and service as a decorated Navy fighter pilot. Thorne-Begland showed another element of his courage in 1992 when he announced that he was gay on “Nightline.” Thorne-Begland has played a critical role for gays and lesbians being accepted in the military.
The problem for Marshall is that Thorne-Begland is publicly gay. Marshall expressed in a press release his fear that Thorne-Begland would want to change the law:
We do not need more judges who want to use their position to remake the law in their own image. We must know that the person who embodies the authority of the Commonwealth in that courtroom has a judicial temperament – is an impartial decision maker.
Tracy Thorne-Begland is a nationally known advocate of homosexual rights, working with and leading groups such as the Human Rights Campaign and Equality Virginia, whose life’s passion it is to change the law. He has been quoted as being critical of the judicial system in Virginia for hostility to homosexual rights. There was widespread doubt in the General Assembly as to whether this candidate could swear the oath required of Virginia’s judges to abide by Virginia’s Constitution since he profoundly disagrees with the Virginia Marriage Amendment “that only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth.”
An important point is that Marshall is the author of the bill that Virginia only accepts marriage as between one man and one woman. The contention that Thorne-Begland could not take the oath required of judges to stand by the Virginia Constitution is a canard. There are plenty of judges throughout the country, both conservatives and liberals, who question parts of a state or even the federal Constitution. That does not mean they cannot take an oath to uphold the law. It is not dissimilar from a police officer who disagrees with a law continuing to enforce it. This is not a rare or unnusual occurrence.
Marshall has a history of controversial actions. In 2010, he suggested that women who have abortions risk the wrath of god in that their future children may have birth defects. Marshall quickly backtracked and apologized, referring to research that he had done showing that an abortion leads to birth defects and other health problems.
There is another relevant point in this matter. Marshall is running for the U.S. Senate. His opponent for the Republican nomination is George Allen. Marshall is not doing as well in the polls as he would like. Hence, there is nothing like a little gay bashing to stir up the party faithful.
Marshall added to the controversy with the statement “sodomy is not a civil right.” That points more to the fact that Marshall does not like an outspoken gay man becoming judge than protecting the state of Virginia’s constitution. Marshall’s statement only points out that he is not a legal expert.
Actually, sodomy is a civil right. In 2003, the Supreme Court overturned Texas’ sodomy law in Lawrence v. Texas decision. This means that laws against anal or oral sex are unconstitutional throughout the nation. This is not just a protection for homosexuals but heterosexuals too.
As William Eskridge, a Yale Law School professor, noted, Thurgood Marshall was a longtime advocate of civil rights, but that did not bar him from becoming a Supreme Court justice and taking on civil rights cases from that position.
Further evidence of Marshall’s lack of understanding how a judge operates if found on his senate campaign website. Marshall explained the problems with judges over the last 40 years:
Since 1973, federal courts, led by the U.S. Supreme Court, have demonstrated that they are ill suited to adjudicate controversies that touch on morals and human sexuality, ignoring both our common law traditions and our unalienable Creator-given rights proclaimed in our Declaration of Independence.
First of all, the Declaration of Independence may be a finely written document by Thomas Jefferson, but it has no legal bearing on the Constitution. The “unalienable Creator-given rights” of the Declaration are words to rally around but any judge who writes a decision on that should be kicked from the bench.
Second, Marshall seems to think that legal disputes over morality and human sexuality should not come before judges because they cannot be trusted to make the right decisions. Legal disputes are supposed to be resolved in the courts, federal and state. Leaving it to legislatures and Congress to interpret their own laws upsets the entire principle of checks and balances. Besides, how are those disputes going to be settled? With panels of politicians deciding on their constitutionality?
Even letting the state courts decide on federal issues turns the Constitution upside down. It flips the entire concept of federalism instituted at this country’s founding. Marshall’s position makes no sense.
Marshall is a staunch pro-life advocate. He has taken the position that the jurisdiction of federal courts should be removed from interfering with state laws that protect pre-born children. That is a dubious assertion that would probably require a Constitutional amendment. That only emphasizes that Marshall’s real intent is not protecting constitutions but advocating his own agenda.
Thorne-Begland became an easy target for Marshall for purely political reasons. Marshall questioned Thorne-Begland’s credential to be impartial while at the same time creating a politically charged environment that politicized the judiciary. Anyway that is looked at, it is a foolish proposition that does nothing to promote the impartiality that Marshall fears will be lost with Thorne-Begland becoming a judge. In fact, it does the exact opposite.