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    June 03, 2008

    California's dissenting lesbian

    Posted by: Chris

    NOTE: I want to add one caveat to this post. Re-reading the item from the Daily News about Justice Corrigan, I noticed that there's not any supporting information for the claim she is gay. I didn't see anything definitive on the web either. I don't know if the Daily News columnist is outing Corrigan or speculating or if she is open about it.

    Also in response to a couple of comments, I did not say that being gay she had to vote with the majority to overturn the marriage law. I analyzed her reasoning in some detail and found her arguments completely circular. That suggests to me, for the reasons I outlined, if she is gay she was simply squeamish to act because of her baggage.

    Carolcorrigan Remember the dissenting justice in the California marriage ruling who made a point of saying she personally favored gay marriage, even if she didn't feel the California Constitution compelled it? Well, it turns out that Justice Carol Corrigan is a lesbian herself:

    Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent.

    To reach that conclusion, Corrigan had to oversimplify the complicated case into a simple question of names: marriage or not. But it was always more complicated than that. As the majority made clear, California has created two separate legal institutions, not simply two names, for straight and gay couples -- and separate can never be equal.

    Corrigan's reasoning in the case is almost entirely circular, which you would expect from someone afraid to go out on the limb for her own equality and looking for any reason not to. For example, she starts with her conclusion -- "domestic partnerships and marriage have the same legal standing" -- and works backward, concluding that "the same" is therefore "equal."

    Likewise, she claims "the legitimate purpose of the statutes defining marriage is to preserve the traditional understanding of the institution." A dog could chase its tail for an hour and progress no further than Justice Corrigan in her analysis.

    In similar fashion, the claims that gay couples "seek both to join the institution of marriage and at the same time to alter its definition." That's because she defines marriage as the legal institution of a man and a woman, just as racists once defined it as a union of two people of the same race. She claims "the institution of marriage was not fundamentally changed by removing the racial restriction that formerly encumbered it," even though that is exactly what defenders of laws against interracial marriage vociferously argued in their day.

    I've stated before my own view that the majority overreached in several important ways, especially in ordering that gay couples be allowed to marry. Having concluded that the California Constitution requires one institution with one name for the legal recognition of gay and straight couples, the court should have left to the Legislature whether to (a) eliminate domestic partnerships and open marriage for all, or (b) eliminate marriage and open domestic partnerships for all.

    But for Justice Corrigan, "judicial restraint" was an excuse to duck and cover, and to argue herself into circles. It's symptomatic of something I call "the best damn lesbian" syndrome: first generation gay or lesbian professionals desperate for respect without regard to their sexual orientation, which they carry like emotional baggage.

    Like the lesbian partner at my first law firm, already successful and tenured in her position, but still completely in the closet. She defended that decision to me, an openly gay junior attorney in the early '90s, even though I hadn't even criticized it.

    "I just want to be thought of as 'the best damn regulatory lawyer in Washington,'" she said, "and not 'that lesbian lawyer who does regulatory work.'"

    Well, Justice Corrigan, you're certainly cementing how you'll be remembered.

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    Comments

    1. Hawyer on Jun 3, 2008 10:19:48 AM:

      Well Your Honor, Judge Corrigan, since you have twisted common sense into a pretzel, how about this bit of circular logic: making a career of not living up to the expectations of your peers (call it the Clarence Thomas syndrome) is not a crime; that is, unless you have chosen public service as your career.

      Carol honey, no doubt you have worked hard for comfortable seat in that tenured lifeboat of yours, but faced with the most important decision in your life, you ducked under that black robe like a two-year-old under her mother's skirt. To dismiss you as another self-loathing homosexual is way to much of a free pass.

      Instead of fortifying the landmark decision with a 5-2 ruling, you gamed the system and cast a gutless dissenting vote -- a shameful display of convoluted cowardice that beggars the imagination.

      You don't need scorn; you need therapy.

    1. Hawyer on Jun 3, 2008 10:37:21 AM:

      Well I guess I'm not done on Judge Corrigan. Her retreat into rank majoritarianism takes the judicial cake:

      "Californians should allow our gay and lesbian neighbors to call their unions marriages. But I, and this court, must acknowledge that a majority of Californians hold a different view, and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not. Therefore, I must dissent."

      Constitutional democracy - by definition - recognizes the need to insulate the rights of politically unpopular groups from the political majority. If this judicial hack truly believes that drivel, she is unqualified for the bench. If her statement is strictly a political stance, she should be disqualified from the bench.

    1. North Dallas Thirty on Jun 3, 2008 11:49:14 AM:

      "I just want to be thought of as 'the best damn regulatory lawyer in Washington,'" she said, "and not 'that lesbian lawyer who does regulatory work.'"

      Of course, the reason that attitude exists is because of posts and comments like this, which make it clear that one's decision-making should be based on the personal convenience to their minority status.

      Instead of doing what was popular, i.e. "living up to the expectations of her peers", Corrigan did what she felt was right. That shows a strength of character that goes far beyond the namecalling and mudslinging of this post and its comments.

    1. Geena on Jun 3, 2008 12:05:13 PM:

      I'm with North Dallas, Chris you're in political correct territory you despise. You state the majority overreached in several important ways, “should have left to the Legislature”. But she’s not a lesbian legislator; she's a lesbian judge and therefore should not have overreached and ruled differently.

      You also speculate that this judge carries "emotional baggage", and use a psychoanalytical quote from another lesbian to place the woman in a category you make up. She's entitled to her own jurisprudence, and criticisms of her ruling, not a critique of her ruling based on assumed personality.

      Is "best damn lesbian syndrome" in the DSM-IV?


    1. Strict Scrutiny on Jun 3, 2008 4:09:16 PM:

      At the risk of piling on, I have to agree with NDT and Geena. You implied that Corrigan should have voted with the majority simply on her identity as a lesbian. Why would you even try to go there? You know better -- that's not a judge's job. Corrigan is entitled to interpret the laws of this state in the manner she feels is correct.

      I have no problem with your criticism of her legal reasoning. That's legit. But your segue into her "psychological profile" is just a baseless, mean-spirited attempt to discredit her and/or her
      opinion.

    1. Hawyer on Jun 3, 2008 10:38:02 PM:

      North Dallas Thirty, Geena , Strict Scrutiny et al ...

      In your zeal to defend her "strength of character" - "entitlement to her own jurisprudence" - "entitlement to interpret the laws of CA in the manner she feels fit" --- one factoid remains undefended --- and that is the fact that she was and is dead wrong in her convoluted analysis --- and dead wrong in her majoritarian argument to go with the screaming-majority flow --- instead of coming down on the side of equal rights for fucking gays and lesbians -- of which she is one! What the shit?

    1. Strict Scrutiny on Jun 4, 2008 12:33:45 AM:

      Hawyer,

      I am not defending the rectitude Corrigan's decision; I do not agree with her legal analysis and am on record that I agree with the majority opinion.

      My problem with Chris's post and your comments above was you both went beyond a mere critique of Corrigan's opinion. You berated her as a coward and stated that she needs "therapy" because she didn't vote for gay equality. That's pretty weak. She's a judge and is charged with interpreting and applying the law irrespective of her personal views and opinions. If she made a legal error or didn't write persuasively, just say that. But don't insult her for performing her job the way she felt was correct and appropriate. It's not her job to advance gay rights; that's the job of Mark Leno, Carol Migden, and all other other gay legislators here in our state capital of Sacramento.

    1. Hawyer on Jun 4, 2008 10:38:39 AM:

      SS ---=


      In the light of day and having metabolized the 2-glasses of merlot in effect during my last post ...

      I sense that our disagreement probably arises in our conception of the judiciary. The conservative mantra of "strict constructionist" infers, to me at least, that the judiciary's sole purpose is a stenographer to the legislature --- dutifully rubber-stamping legislation, pausing only to correct the grammar, and clarify indefinite modifiers.

      Alternatively, the original intent of the judicial branch - yes BRANCH - of the government is an independent and unpoliticized body of long-term thinkers whose duty is to the constitution --- irrespective of the opinion of the legislature and their screaming constituents.

      Thusly understood, "judicial activism" becomes a critical component of a jurist's job description. So when I hear Judge Corrigan say, in essence: "Well I'd sure like to come down on the side of equal application of the law to all California citizens, but you know those darn voters don't think us queers have the human qualities to participate as full citizens in this state." --- I hear a judge who defaults on her obligation to the constitution.

      (Now the fly in the ointment -- I'll give you that --- is the whole issue of voter initiatives on human rights issues --- a concept that is patently anti-American and anti-constitutional --- and deployed as a tactic to intimidate the judiciary.)


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