Bryan H. Wildenthal
Professor of Law
Welcome to my Professional Homepage. It includes some brief biographical
information, my courses and areas of scholarly interest,
links to various law-related websites that I find of
interest (and that you may also), and some of my favorite
quotations on law and public policy. Links to subpages within
my Homepage are also indicated below, and provide some additional
information.
I graduated from Stanford University
in 1986 and received my law degree in 1989 from Stanford Law School. After law
school I clerked for Judge Frank M. Johnson, Jr. of
the United States Court of Appeals for the Eleventh Circuit
in Montgomery, Alabama, and then for Chief Justice Michael F.
Cavanagh of the Michigan Supreme Court in Lansing, Michigan.
I practiced law for two years with Wilmer, Cutler & Pickering
(now known as WilmerHale) in Washington,
D.C., before joining the faculty of IIT Chicago-Kent College of Law for
a two-year visiting appointment. I then joined the faculty of Thomas
Jefferson School of Law (TJSL), in San Diego, in 1996.
At TJSL, I currently teach Constitutional Law, American Indian Law,
and Federal Courts & Jurisdiction. My scholarly interests
mainly focus on constitutional law (with an increasing interest
in legal history), American Indian law, and sexual identity law.
My first book was published in 2003 by ABC-CLIO:
Native American Sovereignty on Trial
(click
here for more information, but please note that Amazon.com is mistaken
in describing me only as the "editor"; the latter half of the book does
consist mostly of cases and other documentary materials that I edited,
but the first half is original text of which I am the sole author). This
book provides a legal and historical overview and analysis of the relationship
between the United States Government, the 50 state governments, and the
hundreds of American Indian Nation ("tribal") governments.
My second book, Nationalizing
the Bill of Rights: The Rise, Fall, and Rise of the Fourteenth
Amendment Incorporation Doctrine, remains a
longterm project. I have decided to first publish key parts of it as a
series of law review articles. This project, so far, consists of four major
articles, the first three published in the Ohio State Law Journal
in 2000 (available here and
here) and 2007 (available
here), and the fourth and latest
forthcoming in the Journal of Contemporary Legal Issues (available
here). All four analyze
aspects of the long historical process, from 1866 to the present
day, by which most liberties guaranteed in the Bill of Rights (ratified
in 1791 and originally applicable only to the U.S. federal government)
have been applied as limitations on state and local governments.
For more information about my professional background, writings, and activities,
see my vita or my Social Science Research Network (SSRN)
Author Page.
Among the proudest and most rewarding experiences of my life were my two
judicial clerkships. One of my law school professors,
John Hart Ely, commented in the dedication of his book Democracy
and Distrust, in reference to Chief Justice Earl Warren (for
whom he clerked), that "you don't need many heroes if you
choose carefully." I can only say the same with regard to Judge
Johnson and Justice Cavanagh. Following are links to some photos
and text relating to my clerkships with them.
If you want to explore "Law
on the Web," here are some useful legal research sources on
the Internet:
- FindLaw (the best all-around
legal resource on the Internet)
- Thomas (the
official on-line source for U.S. Congressional legislation and
legislative history, named, naturally, after Thomas Jefferson)
- Jurist (click your way to information
about law schools and the insights of legal scholars nationwide)
- Balkinization
(a great legal blog moderated by Yale Law School Professor Jack M. Balkin,
which has posted some of the most powerful critiques anywhere of the
former Bush regime's abuses of the rule of law and constitutional rights)
I'M ONE OF THE ORIGINAL FANS OF *THE* INTERNET SEARCH ENGINE!
Here are links to some law- and public policy-related organizations whose
goals I generally support:
Finally, here are some of my favorite quotations on matters of
law and public policy:
"Under our constitutional system, courts stand against any winds
that blow as havens of refuge for those who might otherwise
suffer because they are helpless, weak, outnumbered, or
because they are non-conforming victims of prejudice and
public excitement. ... No higher duty, no more solemn responsibility,
rests upon this Court, than that of translating into living
law and maintaining this constitutional shield deliberately
planned and inscribed for the benefit of every human being subject
to our Constitution---of whatever race, creed or persuasion."
Justice Hugo L. Black, for the
U.S. Supreme Court, in Chambers v. Florida (1940)
(throwing out the "sunrise confession" of an African-American
man interrogated by police all night long without food or sleep)
"Originally the Indian tribes
were separate nations within what is now the United States.
Through conquest and treaties they were induced to give up complete
independence and the right to go to war in exchange for federal
protection, aid, and grants of land. ... Around 1830 the Georgia
Legislature extended its laws to the Cherokee Reservation despite
federal treaties with the Indians which set aside this land for them.
... Rendering one of his most courageous and eloquent opinions, Chief
Justice [John] Marshall held [in Worcester v. Georgia (1832)]
that Georgia's assertion of power was invalid. ... Despite bitter
criticism and the defiance of Georgia which refused to obey this Court's
mandate ... the broad principles of that decision came to be accepted
as law. ... Congress has ... acted consistently upon the assumption
that the States have no power to regulate the affairs of Indians on
a reservation. ... The cases in this Court have consistently
guarded the authority of Indian governments over their reservations.
Congress recognized this authority in the Navajos in the [Navajo-U.S.]
Treaty of 1868, and has done so ever since."
Justice Hugo L. Black, for the
U.S. Supreme Court, in Williams v. Lee (1959) (rejecting
Arizona state jurisdiction over a civil lawsuit against
a Navajo Indian arising out of a dispute within the Navajo Nation)
"[I]t seems basic to our constitutional
principles that the extent of the right to assemble, demonstrate
and march peaceably along the highways and streets in
an orderly manner should be commensurate with the enormity
of the wrongs that are being protested and petitioned against.
In this case, the wrongs are enormous."
Judge Frank M. Johnson, Jr.,
in Williams v. Wallace (1965) (ordering Alabama Gov.
George Wallace, a law school classmate of Judge Johnson at
the University of Alabama, to allow the voting-rights march
from Selma to Montgomery by Rev. Martin Luther King, Jr. and thousands
of others)
"[T]he Fourteenth Amendment
means what it says: All persons within the jurisdiction
of a state are entitled to the equal protection of the laws
of that state. ... [Texas] ignore[s] the realities underlying
the plaintiff children's status as illegal aliens. The plaintiffs
undeniably stand in violation of federal law, but certainly they
have committed no moral wrong. As children they are under the actual
and legal control of their parents. To suggest that [they] are being
excluded from education for their own illegal actions places form
over substance."
Judge Frank M. Johnson, Jr.,
for the U.S. Court of Appeals, in Plyler v. Doe
(1980) (striking down as unconstitutional Texas's exclusion
of illegal immigrant children from the public schools; Judge
Johnson's ruling was upheld by the U.S. Supreme Court in 1982)
"The Georgia sodomy statute
infringes upon the fundamental constitutional rights
of Michael Hardwick. ... The Constitution prevents the states
from unduly interfering in certain individual decisions critical
to personal autonomy because those decisions are essentially
private and beyond the legitimate reach of a civilized society.
... [T]he marital relationship is ... significant because of the
unsurpassed opportunity for mutual support and self-expression
that it provides. ... For some, the sexual activity in question
here serves the same purpose as the intimacy of marriage. ... The
activity [Michael Hardwick] hopes to engage in is quintessentially
private and lies at the heart of an intimate association beyond the
proper reach of state regulation."
Judge Frank M. Johnson, Jr.,
for the U.S. Court of Appeals, in Bowers v. Hardwick
(1985) (subjecting to strict scrutiny, thus effectively striking
down as unconstitutional, a Georgia law criminalizing certain
forms of lovemaking between consenting adults; Judge Johnson's
ruling was reversed on appeal, 5-4, by the U.S. Supreme Court
in 1986, but the Supreme Court later overruled itself in Lawrence
v. Texas (2003), quoted below; sadly, Judge Johnson did not live
to see this vindication of his 1985 ruling, since he died in 1999)
"Although judges and lawyers
may understand and appreciate the subtle distinctions
between the Fifth and Sixth Amendment rights to counsel, the
average person does not. When an accused requests an attorney,
either before a police officer or a magistrate, he does not
know which constitutional right he is invoking .... It makes little
sense to afford relief from further [police] interrogation to a
defendant who asks a police officer for an attorney, but permit
further [police] interrogation of a defendant who makes an identical
request to a judge. The simple fact that defendant has requested
an attorney indicates that he does not believe that he is sufficiently
capable of dealing with his adversaries singlehandedly. ... The
police cannot simply ignore a defendant's unequivocal request for
counsel."
Justice Michael F. Cavanagh,
for the Michigan Supreme Court, in Michigan v. Bladel
and Jackson (1984) (holding that police cannot persist
in questioning a criminal suspect once he has invoked his Sixth
Amendment right to counsel; the U.S. Supreme Court affirmed Justice
Cavanagh's ruling in 1986, quoting with approval his words quoted
above; in 2009, however, in an outrageous 5-4 ruling, the U.S. Supreme Court
overruled its 1986 decision, thus seriously undermining the constitutional
right to counsel)
"It is time to heal America.
... [L]ook beyond the stereotypes that blind us. We
need each other. All of us, we need each other. We don't have
a person to waste. And yet, for too long, politicians have told
the most of us that are doing all right that what's really wrong
with America is the rest of us. 'Them.' 'Them' the minorities,
'them' the liberals, 'them' the poor, 'them' the homeless, 'them'
the people with disabilities, 'them' the gays. We've gotten to
where we've nearly 'themmed' ourselves to death. ... But this is
America. There is no 'them.' There is only us."
Arkansas Governor Bill Clinton
(July 16, 1992) (accepting the Democratic nomination
for President of the United States)
"I want to make it very clear
that I oppose the ... so-called compromise ... also known
as the 'don't ask, don't tell, don't pursue policy.' [It]
is not a compromise at all, but rather ... a blind capitulation
to our most base fears. ... I ask you, what could be more
of a risk to the armed forces' high standards of morale, good
order, discipline, and unit cohesion than its own valuable and
otherwise loyal service members forced by it to lie in order to
serve, forced to hide to live a full life, forced to undermine
a system totally dependent upon trust in order to preserve their
dignity?"
Senator Russell Feingold,
Democrat of Wisconsin (September 9, 1993) (speaking on
the Senate floor against codification of the ban on gays in the
military)
"There are gays in the military
today. There will be gays in the future. They have fought
with distinction and served with distinction all through
the past. They are in every institution in America. They are part
of the class of American society. What Congress will do by codifying
[the military gay ban] is to, in effect, deny them the full measure
of their citizenship."
Senator John F. Kerry,
Democrat of Massachusetts and decorated combat veteran of the Vietnam
War (September 9, 1993) (speaking on the Senate floor against
codification of the ban on gays in the military)
"This bill seeks to divide
our nation, turn Americans against Americans, sow the
seeds of fear, hatred, and intolerance. ... This bill
is a slap in the face of the Declaration of Independence.
It denies gay men and women the right to liberty and the pursuit
of happiness. Marriage is a basic human right. You cannot tell
people they cannot fall in love. Dr. Martin Luther King, Jr. used
to say when people talked about interracial marriage and I quote, 'Races
do not fall in love and get married. Individuals fall in love and
get married.' Why do you not want your fellow men and women, your
fellow Americans, to be happy? Why do you attack them? Why do you
want to destroy the love they hold in their hearts? Why do you want to
crush their hopes, their dreams, their longings, their aspirations?
We are talking about human beings, people like you, people who want to
get married, buy a house, and spend their lives with the one they love.
They have done no wrong. I will not turn my back on another American.
I will not oppress my fellow human being. I have fought too hard and too
long against discrimination based on race and color not to stand up against
discrimination based on sexual orientation. ... I have known racism.
I have known bigotry. This bill stinks of the same fear, hatred, and
intolerance. ... I urge my colleagues to oppose this bill, to have the
courage to do what is right. ... Let us come together and create one
nation, one people, one family, one house, the American house, the American
nation."
Representative John Lewis,
Democrat of Georgia (July 11, 1996) (speaking on the House
floor against the so-called "Defense of Marriage Act," later
signed into law by President Clinton, which denies federal recognition,
and authorizes any state to deny recognition, to any same-sex
marriage; Congressman Lewis, an African-American hero of the
civil rights movement, repeatedly endured violent physical assault
while peacefully pursuing the cause of racial justice during
such historic events as the "Freedom Rides" of 1961 and the "Bloody
Sunday" voting rights march in Selma in 1965; he has never forgotten
the lessons he learned in that struggle, and he continues to show grace
and courage in working for equal rights and justice for all)
"[W]e cannot accept the view
that [Colorado's anti-gay] Amendment 2's prohibition
on specific legal protections [for gays and lesbians] does
no more than deprive homosexuals of special rights. To the contrary,
the amendment imposes a special disability upon those persons
alone. ... We find nothing special in the protections Amendment
2 withholds. These are protections taken for granted by most
people either because they already have them or do not need them;
these are protections against exclusion from an almost limitless
number of transactions and endeavors that constitute ordinary
civic life in a free society. ... Amendment 2, ... in making a general
announcement that gays and lesbians shall not have any particular
protections from the law, inflicts on them immediate, continuing,
and real injuries that outrun and belie any legitimate justifications
that may be claimed for it. ... A state cannot so deem a class of persons
a stranger to its laws."
Justice Anthony M. Kennedy,
for the U.S. Supreme Court, in Romer v. Evans (1996)
"Vermont's history
as an independent republic and as a state is one of equal treatment
and respect for all Vermonters. This tradition is embodied
in the Common Benefits Clause of the Vermont Constitution,
Chapter I, Article 7th. ... The state's interest in civil marriage
is to encourage close and caring families .... The state has a
strong interest in promoting stable and lasting families, including
families based upon a same-sex couple. ... Without the legal
protections, benefits and responsibilities associated with civil
marriage, same-sex couples suffer numerous obstacles and hardships.
... Despite longstanding social and economic discrimination, many
gay and lesbian Vermonters have formed lasting, committed, caring,
and faithful relationships with persons of their same sex. These couples
live together, participate in their communities together, and
some raise children and care for family members together, just as
do couples who are married under Vermont law. ... While a system of
civil unions does not bestow the status of civil marriage, it does satisfy
the requirements of the Common Benefits Clause. ... The purpose
of this act is to ... provide eligible same-sex couples the opportunity
to obtain the same benefits and protections afforded by Vermont
law to married opposite-sex couples as required by Chapter I, Article
7th of the Vermont Constitution."
H.
847, "An Act Relating to Civil Unions," enacted by the Vermont General
Assembly and signed into law by Governor Howard Dean (April 26, 2000) (Vermont,
in a logical culmination of this groundbreaking law, recognized full marriage
rights for gay couples in 2009)
"We seek the great restoration of American
values and the restoration of our nation's traditional purpose
in the world. ... This campaign is about more than issue differences
on health care, tax cuts, national security, jobs, the environment,
and our economy. It is about something as important as our children.
It's about who we are as Americans. Here are the words of John Winthrop:
'We shall be as one. We must delight in each other, make others' conditions
our own; rejoice together, mourn together, labor and suffer together,
always living before our eyes our commission and community in our
work.' It is that ideal, the ideal of the American community, that we
seek to restore. ... [W]e stand today in common purpose to take our
country back."
Vermont Governor Howard Dean (June 23, 2003) (declaring his
candidacy for President of the United States)
"[W]hen I was a junior in high school, John
Kennedy called my generation to service. It was the beginning of
a great journey, a time to march for civil rights, for voting rights,
for the environment, for women, and for peace. We believed we could
change the world. And you know what? We did. But we're not finished.
The journey isn't complete. The march isn't over. The promise isn't
perfected. Tonight, we're setting out again. ... So much promise
stretches before us. Americans have always reached for the impossible,
looked to the next horizon, and asked: What if? ... A young president
asked: What if we could go to the moon in ten years? And now we're exploring
the solar system and the stars themselves. ... And now it's our time
to ask: What if?"
Senator John F. Kerry
(July 29, 2004) (accepting the Democratic nomination for President of the
United States)
[O]ur laws and tradition afford constitutional protection
to personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education. ... 'These
matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human
life. ...' Persons in a homosexual relationship may seek autonomy
for these purposes, just as heterosexual persons do. The decision
in Bowers [see above] would deny them this right. ... Bowers
was not correct when it was decided, and it is not correct today. It
ought not to remain binding precedent. Bowers v. Hardwick should
be and now is overruled. ... The petitioners [two gay men] are entitled
to respect for their private lives. The State cannot demean their
existence or control their destiny by making their private sexual
conduct a crime."
Justice Anthony M. Kennedy, for the U.S. Supreme Court, in
Lawrence v. Texas (June 26, 2003)
"Marriage is a vital social institution.
The exclusive commitment of two individuals to each other
nurtures love and mutual support; it brings stability to our
society. For those who choose to marry, and for their children, marriage
provides an abundance of legal, financial, and social benefits.
In return it imposes weighty legal, financial, and social obligations.
The question before us is whether, consistent with the Massachusetts
Constitution, the Commonwealth [of Massachusetts] may deny the protections,
benefits, and obligations conferred by civil marriage to two individuals
of the same sex who wish to marry. We conclude that it may not. The
Massachusetts Constitution affirms the dignity and equality of all
individuals. It forbids the creation of second-class citizens....
[Massachusetts] has failed to identify any constitutionally adequate
reason for denying civil marriage to same-sex couples."
Chief Justice Margaret Marshall, for the Massachusetts Supreme
Judicial Court, in Goodridge v. Massachusetts Department
of Public Health (November 18, 2003)
"[R]etaining the designation of marriage exclusively for opposite-sex couples and providing
only a separate and distinct designation ['domestic partnership'] for same-sex
couples may well have the effect of perpetuating a more general premise---now
emphatically rejected by this state---that gay individuals and same-sex
couples are in some respects 'second-class citizens' who may, under the
law, be treated differently from, and less favorably than, heterosexual
individuals or opposite-sex couples. Under these circumstances,
we cannot find that retention of the traditional definition of marriage constitutes a compelling state
interest. Accordingly, we conclude that to the extent the current California
statutory provisions limit marriage
to opposite-sex couples, these statutes are unconstitutional. ... There
can be no question but that, in recent decades, there has been a fundamental
and dramatic transformation in this state's understanding and legal treatment
of gay individuals and gay couples. California has repudiated past practices
and policies that were based on a once common viewpoint that denigrated the
general character and morals of gay individuals, and at one time even characterized
homosexuality as a mental illness rather than as simply one of the numerous
variables of our common and diverse humanity."
Chief Justice Ronald M. George, for the California Supreme Court,
in In re Marriage Cases (May 15, 2008)
"The Conscience of the Constitution":
"¶ 50. The studies conducted in different parts of the world including
India show that the criminalisation of same-sex conduct has a negative impact
on the lives of [gay] people. Even when the penal provisions are not enforced,
they reduce gay men or women to ... 'unapprehended felons,' thus entrenching
stigma and encouraging discrimination in different spheres of life. Apart
from misery and fear, a few of the more obvious consequences are harassment,
blackmail, extortion and discrimination. ... We may quote [a] glaring example.
During [the] Colonial period in India, eunuchs (hijras) were criminalised
by virtue of their identity.... While th[e] [1871 Colonial] Act has been
repealed, the attachment of criminality to the hijra community still
continues."
"¶ 52. The criminalisation of homosexuality condemns in perpetuity a
sizable section of society and forces them to live their lives in the shadow
of harassment, exploitation, humiliation, [and] cruel and degrading treatment
at the hands of the law enforcement machinery. ... Section 377 IPC [Indian
Penal Code] grossly violates [gay, lesbian, and transgender people's] right
to privacy and liberty embodied in Article 21 [of the Constitution of India]
insofar as it criminalises consensual sexual acts between adults in private.
These fundamental rights had their roots deep in the struggle for independence
and, as pointed out by Granville Austin in The Indian Constitution: Cornerstone
of a Nation, 'they were included in the Constitution in the hope and
expectation that one day the tree of true liberty would bloom in India.'
In the words of Justice V.R. Krishna Iyer, 'these rights are cardinal to
a decent human order and protected by constitutional armour. ...'"
"¶ 67. There is almost unanimous medical and psychiatric opinion that
homosexuality is not a disease or a disorder and is just another expression
of human sexuality. ..."
"¶ 79. The popular morality or public disapproval of certain acts is
not a valid justification for restriction of the fundamental rights under
Article 21. ... If there is any type of 'morality' that can pass the test
of compelling state interest, it must be 'constitutional' morality and not
public morality. This aspect of constitutional morality was strongly insisted
upon by Dr. [Bhimrao Ramji] Ambedkar in the Constituent Assembly [that framed
the Constitution of India in 1948]. ... Dr. Ambedkar quoted Grote, the historian
of Greece, who had said: 'The diffusion of constitutional morality, not merely
among the majority of any community but throughout the whole, is an indispensable
condition of government at once free and peaceable ....' ... Dr. Ambedkar
added: '... Constitutional morality is not a natural sentiment. It has to
be cultivated. We must realise that our people have yet to learn it. ...'"
"¶ 80. Granville Austin in his treatise The Indian Constitution:
Cornerstone of a Nation had said that the Indian Constitution is first
and foremost a social document. The majority of its provisions are either
directly aimed at furthering the goals of the social revolution or attempt
to foster this revolution by establishing the conditions necessary for its
achievement. The core of the commitments to the social revolution lies ...
in the Fundamental Rights and in the Directive Principles of State Policy.
These are the conscience of the Constitution. [emphasis added] The
Fundamental Rights, therefore, were to foster the social revolution by creating
a society egalitarian to the extent that all citizens were to be equally
free from coercion or restriction by the state, or by society privately;
liberty was no longer to be the privilege of the few. The Constitution of
India recognises, protects and celebrates diversity. To stigmatise or to
criminalise homosexuals only on account of their sexual orientation would
be against the constitutional morality."
"¶ 98. The inevitable conclusion is that the discrimination caused to
... [the] gay community [by Section 377] is unfair and unreasonable and,
therefore, in breach of Article 14 of the Constitution of India."
"¶ 104. We hold that sexual orientation is a ground analogous to sex
and that discrimination on the basis of sexual orientation is not permitted
by Article 15 [of the Constitution of India]. ..."
"¶ 111. ... [A] measure that disadvantages a vulnerable group defined
on the basis of a characteristic that relates to personal autonomy [such
as sex or sexual orientation] must be subject to strict scrutiny [under Article
15 of the Constitution of India]."
"¶ 113. ... [I]f a law discriminates on any of the prohibited grounds
[such as sex or sexual orientation], it needs to be tested not merely against
'reasonableness' under Article 14 but be subject to 'strict scrutiny' [under
Article 15]. ... Section 377 IPC criminalises the acts of sexual minorities[,]
particularly ... gay men. It disproportionately impacts them solely on the
basis of their sexual orientation. The provision runs counter to the constitutional
values and the notion of human dignity which is considered to be the cornerstone
of our Constitution. ... A provision of law branding one section of people
as criminal based wholly on the State's moral disapproval of that class goes
counter to the equality guaranteed under Articles 14 and 15 under any standard
of review."
"¶ 125. ... The judiciary is constituted as the ultimate interpreter
of the Constitution and to it is assigned the delicate task of determining
what is the extent and scope of the power conferred on each branch of government,
what are the limits on the exercise of such power under the Constitution
and whether any action of any branch transgresses such limits. The role of
the judiciary is to protect the fundamental rights. A modern democracy[,]
while based on the principle of majority rule[,] implicitly recognises the
need to protect the fundamental rights of those who may dissent or deviate
from the majoritarian view. It is the job of the judiciary to balance the
principles ensuring that the government on the basis of number does not override
fundamental rights. After the enunciation of the basic structure doctrine,
full judicial review is an integral part of the constitutional scheme. ..."
"¶ 129. The notion of equality in the Indian Constitution flows from
the 'Objective Resolution' moved by Pandit Jawaharlal Nehru [India's Founding
Prime Minister] on December 13, 1946 [in the Lok Sabha, India's House of
Representatives]. Nehru ... wished that the House should consider the Resolution
not in a spirit of narrow legal wording, but rather look at the spirit behind
that Resolution. He said, 'Words are magic things often enough, but even
the magic of words sometimes cannot convey the magic of the human spirit
and of a Nation's passion ....'"
"¶ 130. If there is one constitutional tenet that can be said to be
the underlying theme of the Indian Constitution, it is that of 'inclusiveness.'
This Court believes that [the] Indian Constitution reflects this value deeply
ingrained in Indian society, nurtured over several generations. The inclusiveness
that Indian society traditionally displayed, literally in every aspect of
life, is manifest in recognising a role in society for everyone. Those perceived
by the majority as 'deviants' or 'different' are not on that score excluded
or ostracised."
"¶131. Where society can display inclusiveness and understanding, such
persons can be assured of a life of dignity and non-discrimination. This
was the 'spirit behind the Resolution' of which Nehru spoke so passionately.
In our view, Indian Constitutional law does not permit the statutory criminal
law to be held captive by the popular misconceptions of who the LGBTs are.
It cannot be forgotten that discrimination is [the] antithesis of equality
and that it is the recognition of equality which will foster the dignity
of every individual."
"¶ 132. We declare that Section 377 IPC, insofar [as] it criminalises
consensual sexual acts of adults in private, is violative of Articles 21,
14 and 15 of the Constitution. ..."
Chief Justice Ajit Prakash Shah, for the Delhi High Court, striking
down as a violation of India's Constitution a law criminalizing gay sex that
was a relic of the colonial era of the British Raj, in Naz Foundation
v. Government of the National Capital Territory of Delhi (July 2, 2009)
"Who can give law to lovers? Love is a greater law to itself."
Anicius Manlius Severinus Boethius
(A.D. 480-524), in De Consolatione Philosophia
Excerpts from former Vice-President Al
Gore's speech at New York University on May 26, 2004:
The Delusion of Dominance
"[F]rom its earliest days in power, th[e] administration
[of President George W. Bush] sought to radically destroy the
foreign policy consensus that had guided America since the end
of World War II. The long successful strategy of containment was
abandoned in favor of the new strategy of 'preemption.' And what
they meant by preemption was not the inherent right of any nation
to act preemptively against an imminent threat to its national
security, but rather an exotic new approach that asserted a unique
and unilateral U.S. right to ignore international law wherever it
wished to do so and take military action against any nation, even in
circumstances where there was no imminent threat....
"More disturbing still was their frequent use
of the word 'dominance' to describe their strategic goal, because
an American policy of dominance is as repugnant to the rest of
the world as the ugly dominance of the helpless, naked Iraqi prisoners
has been to the American people. Dominance is as dominance does.
...
"The same dark spirit of domination has led them
to---for the first time in American history---imprison American
citizens with no charges, no right to see a lawyer, no right to
notify their family, no right to know of what they are accused, and
no right to gain access to any court to present an appeal of any sort.
... They have launched an unprecedented assault on civil liberties,
on the right of the courts to review their actions, on the right of the
Congress to have information on how they are spending the public's money,
and the right of the news media to have information about the policies they
are pursuing. ...
"Our world is unconquerable because the human
spirit is unconquerable, and any national strategy based on pursuing
the goal of domination is doomed to fail because it generates its
own opposition, and in the process, creates enemies for the would-be
dominator. A policy based on domination of the rest of the world not
only creates enemies for the United States and creates recruits for
Al Qaeda, it also undermines the international cooperation that is essential
to defeating [terrorism]. ..."
The Rule of Law
"[W]hat makes the United States special in the
history of nations is our commitment to the rule of law and
our carefully constructed system of checks and balances. ... Our
founders were insightful students of human nature. They feared the
abuse of power because they understood that every human being has
not only 'better angels' in his nature, but also an innate vulnerability
to temptation, especially the temptation to abuse power over others.
...
"Private Lynndie England did not make the decision
that the United States would not observe the Geneva Conventions.
Specialist Charles Graner was not the one who approved a policy
of establishing an American Gulag of dark rooms with naked prisoners
to be 'stressed' and even---we must use the word---tortured---to
force them to say things that legal procedures might not induce them
to say. These policies were designed and insisted upon by the Bush
White House. ... As many as 37 prisoners may have been murdered
while in captivity, though the numbers are difficult to rely upon
because in many cases involving violent death, there were no autopsies.
...
"How dare the incompetent and willful members
of this Bush-Cheney Administration humiliate our nation and our
people in the eyes of the world and in the conscience of our own
people! How dare they subject us to such dishonor and disgrace! How
dare they drag the good name of the United States of America through the
mud of Saddam Hussein's torture prison!"
Conclusion
"Th[e] [Bush] administration has shamed America
and deeply damaged the cause of freedom and human rights everywhere,
thus undermining the core message of America to the world. President
Bush offered a brief and half-hearted apology to the Arab world,
but he should apologize to the American people for abandoning the
Geneva Conventions. He also owes an apology to [our armed forces] for
cavalierly sending them into harm's way while ignoring the best advice
of their commanders. Perhaps most importantly of all, he should apologize
to all those men and women throughout our world who have held the ideal
of the United States of America as a shining goal, to inspire their hopeful
efforts to bring about justice under a rule of law in their own lands.
...
"So today, I want to speak on behalf of those Americans
who feel that President Bush has betrayed our nation's trust,
those who are horrified at what has been done in our name, and all
those who want the rest of the world to know that we Americans see
the abuses that occurred in the prisons of Iraq, Afghanistan, Guantanamo,
and secret locations as yet undisclosed, as completely out of keeping
with the character and basic nature of the American people and at
odds with the principles on which America stands.
"I believe we have a duty to hold President Bush
accountable---and I believe we will. As [President Abraham] Lincoln
said at our time of greatest trial, 'We, even we here, hold the power,
and bear the responsibility.'"
Former Vice-President Al Gore (May 26, 2004)
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