Peter v. Atlasia

[opebo]

Two link the two questions posed above by my learned colleagues - is this ban more analogous to the exclusion of these same under-18s from bars, or is it more analogous to the prohibition against certain levels of severity of beatings of progeny by parents?

[opebo]

Two link the two questions posed above by my learned colleagues - is this ban more analogous to the exclusion of these same under-18s from bars, or is it more analogous to the prohibition against certain levels of severity of beatings of progeny by parents?

Justice opebo,

Again, I would suggest that this ban does not assume any motive on the part of the parents, and so I would have to submit the former, but rather than seeing it as analagous to banning under 18s from bars, I view it as banning bars from recruiting the under-18s. (Although obviously the analogy has the alcohol issue which does muddy the comparison somewhat).

How is motive relevant to the first analogy I suggested, Peter?

[opebo]

Justice Opebo,

Motive is massively relevant in your analogy - you are setting up the situation as either the child wanting to attend the institution or the parents forcing the child to attend the institution. The act does not mention the former at all.

Ah, I see the confusion.  I thought you were referring to the motives of the parents.

[opebo]

Many thanks to the Court for its thoughtful opionon and time.

Did opebo take part in your discussions?

While I think the dignity of the court requires that we justices not comment upon the internal politics of the Court, let me say that whether or not I were included in the discussions would, alas, not have materially effected the outcome of your case. 

Does he intend to file a dissent?

Of course, I do dissent, and will, in time, give a more detailed statement.  I have only just now read the decision.

[opebo]

I dissent.

I particularly disagree with section B of the Chief Justice's decision, regarding the presumption of a right of parents to rear their offspring as they see fit.  We already place a great many limits upon this rearing, and in this context the anti-gay institutes in question are nothing more organized entities for the abuse of children. 

Obviously the state has a clear interest in protecting its citizens, including and especially its minor citizens.  This interest is already established - including in common law - as superseding the right of parents to control their offspring.  We do not allow honor killings, for example, or any other form of prolicide.  In fact we do not even allow any serious physical injury to be inflicted by parents upon offspring.  Nor, for example, do we tolerate certain physical alterations upon their persons - for example we do consider male circumcision as acceptable, but female circumcision not so.  Thus we see the line as draw by community standards.

Not so long ago these standards would have accepted the precept that the gay should be beaten out of children, but thankfully this is no longer the case. 

So, leaving aside the issue of parental rights, there is little other incentive to judge the government's powers in this area narrowly.  Obviously there is a State incentive in protecting minors, oppressed minorities, and groups which are discriminated against as a matter of course, all of which are represented here by the group under attack (gay children). 

Regarding Article I, Section 5, Clause 7 it seems to me fraud has taken place not due to the failure of the 'treatment' or due to the inappropriateness of the treatment, but due to the harmfulness of the treatment.

Regarding the Court's finding that the attendance referenced is part of freedom of association under the speech clause:

In layman’s terms, freedom of association has been defined as the “individual right to come together with other individuals and collectively express, promote, pursue and defend common interests.” Furthermore, some scholars have chosen to define this right as “the freedom to live in a community or be part of an organization whose values or culture are closely related to one's preferences; or, on a more basic level, to associate with any individual one chooses.”  We accept and embrace both definitions as being applicable to those situations where, under Article VI, Section 1, associations are formed to express rights of free exercise of religion, speech, assembly and to petition the Government for redress of grievances.

I disagree that the above rights can apply to minors in the specific case where the State suspicions that they are in fact not exercising their own volition but merely that of their parents, and where said parental enforcement is deemed to be harmful to the minor.  Finally, while I disagree with the 'accept' portion of the decision bolded above, I take exception the use of the term 'embrace' as a matter of tone.  This usage suggests literally an 'embracement' of Judeo-Christian morality which the Court need not (and in the case of this Justice) does not engage.

Finally let me say that I take exception to certain elements of tone in the decision to which I dissent materially:

the Court questions the reach of a government interest in “attempted repression of sexual orientation” or even just “sexual orientation” to justify laws that affect private persons, entities and private behavior generally

and:

many religions, entities and individuals, including parents, continue to believe that homosexuality is an aberrant practice and use ex-gay institutions in an attempt to eliminate such thoughts.  Regardless of whether one supports or opposes this view, it is without question that this belief is justifiably founded in a reasonable historical tradition.

and in the context of the tone set above:

If the Senate wanted to pass legislation funding millions of dollars into research about whether homosexuality is a “medical disorder”, we would hold the law valid under Article I, Section 5, Clause 13.  To take this logic to the extreme, while ignoring other provisions of the Constitution for a moment, if the Senate wanted to pass legislation creating a sub-office of a Cabinet department which researched whether “belief that homosexuality is a mental disorder” is, in fact, a “medical disorder”, we would find the law valid under this Clause for the same reasons.

Firstly while I do find the point about 'attempted repression of sexual orientation' may have some merit - in that the State cannot wring every personal act denoting disapproval from society, it is not absolutely necessary to state that here.  The bolded portion, however, I take exception to - there is no basis for the court to hold that the State's interest is less in protecting its citizens upon this basis than others, such as race or gender.  Whether the State wishes to so protect orientation, based on already established constitutional bases validating protections against race or gender discrimination is entirely the prerogative of the legislature, not the court.


In the second quotation - there is no basis for stating that the tradition of intolerance referenced is 'justifiable' or 'reasonable'.  It is merely traditional and customary.  The court must be very careful in such cases to avoid any addition of even the most subtle form of offense upon the already so burdened oppressed and discriminated members of our society.  A very slight tone of disapproval coming from our august and learned chamber is far more rankling than the most blatant pejorative from a less authoritative source.

Lastly the second paragraph shows some examples which, while effectively illustrating the court's point, show an insensitivity.  The court need not entertain the possibility that any reasonable person could consider homosexuality a 'disorder' in illustrating its point.  Better examples would have been a study of whether or not homophobia was a 'mental disorder'.  These issues are only issues of tone but it is important for the court, wherever possible, at least not add to the problem.

With respect,
J. opebo