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Were Oregon Domestic Partnerships Put on Hold by an Activist Judge?

Timothy Kincaid

December 31st, 2007


mosman.jpgWhen courts find that constitutional protections include gay people, anti-gays often raise the cry of “Activist Judge”. It seems to matter little if the judge has a long history of conservative affiliation or careful judicial determination.

Well, it may be that in the latest judicial decision on the rights of same-sex couples there actually was an activist judge, an anti-gay activist judge.

This is not Judge Michael W. Mosman’s first words on gay couples and their right to equivalent treatment. An Oregonian article from April 21, 2003 (via provides us with some disturbing precedent.

Mosman, 46, emerged as the top candidate in January after Ray Baum, a lawyer for Smith’s family business, withdrew. But controversy erupted in March, when Basic Rights disclosed Mosman’s role in a pivotal 1986 case, Bowers V. Hardwick.

The group uncovered and presented to Smith two “bench memos” that Mosman had written as a clerk to Supreme Court Justice Lewis F. Powell Jr. Mosman urged Powell to uphold Georgia’s anti-sodomy law against a claim that police invaded a man’s privacy by arresting him in his home.

Powell, who was the tie-breaking vote, later regretting making the legal decision to deny the same constitutional protections to the sex life of gay couples that the Supreme Court granted to heterosexual couples. It would not be until Lawrence v. Texas in 2003 that gay persons would no longer be automatic criminals in many states.

It is unclear at this point whether Mosman’s advice to Powell was due to legal position or how much was due to his own religious idealogy. In a book referenced by the article he suggest that another legal argument might have been more convincing. However, the language used by Mosman in 1986 makes quite clear that at that time he did not include gay and lesbian families within even the broadest definition of “family relationship”.

“Without belaboring the point, I am convinced that the right of privacy as it relates to this case has been limited thus far to marriage and other family relationships,” Mosman wrote to Powell. “So limited, the right of privacy does not extend to protect ‘sexual freedom’ in the absence of fundamental values of family and procreation.”

Judge Mosman met with the Democratic Oregon Senator, Ron Wyden, at the time of his confimation and convinced him of his impartiality and that he was not an anti-gay advocate. I am wondering if Wyden regrets his support. For that matter, I wonder if Senator Gordon Smith, the Republican who nominated him is having second thoughts. Both are long time allies of the gay community with Senator Smith often leading Republican support in the Senate.

In the upcoming months we will see whether or not this judge is abusing his authority to impose on Oregonians his own personal values. I’m not encouraged that the judge found a new “fundamental right” where none had been before – what appears to be a “fundamental right” not to have your signature disqualified if it doesn’t meet the established decades-standing requirements that were known to all upon the distribution of petitions. Further he determined that allowing gay Oregonians to form domestic partnerships would do irreparible harm to the anti-gay activists in Arizona (or perhaps to local anti-gays, I’m not certain) that were fighting against any measure of equality and dignity for gay persons.

We will, of course, keep you updated.


Judge Mosman ruled for the state and for gay couples. Clearly my concerns were unwarranted.

It feels wonderful to be wrong about him.



January 2nd, 2008 | LINK

later regretting making the legal decision to deny the same constitutional protections to the sex life of gay couples that the Supreme Court granted to heterosexual couples. It would not be until Lawrence v. Texas in 2003 that gay persons would no longer be automatic criminals in many states.

Is this really true? I seem to remember a married Episcopal priest being arrested for asking an undercover cop to go back to his hotel room somewhere in North Carolina.

Sodomy itself may not be illegal in NC but “Solicitation to commit ‘crimes against nature'” is still enforced. Straight people can proposition others to have straight sex legally but gay people can’t evidently.

Timothy Kincaid
January 2nd, 2008 | LINK


can you please provide a reference?

January 3rd, 2008 | LINK


This is a blog entry but discusses the constitutional implications of his arrest including a statement from the ACLU.

Another toilet cruiser busted

You can google his name and other info and come up with other articles. It’s pretty disturbing that while Sodomy laws are off the books, there remains constitutional inequality when it comes to free speech. (And what the priest did was completely immoral. He cheated on his wife. But I am not sure it should be illegal.)

Timothy Kincaid
January 3rd, 2008 | LINK


Thanks for the link.

It is still illegal to engage in – or solicit for – public sex.

Some argue that this is discriminatory because they never seem to set up stings for heterosexuals. Others think that the stings are so poorly conducted that they entrap people who otherwise would not engage in public sex or that the falsely capture people who want to engage in sex but not at the park bathroom.

As seems to be the case in the story you referenced.

Clearly some officers in North Carolina think they have the right to arrest persons for solociting for “a crime against nature”. I find it highly likely that the priest could win this case but it’s not likely that he’ll try.

We’ll have to wait and see. That some officers or police departments flaunt the constitutional protections does not mean that they are not in place. But until victims fight back there’s little one can do about it.

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