JANUARY 18. 2008
northwest
Sorting Out Mosman
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Just Out examines the judge behind the ruling
by Julie Sabatier
hen Judge Michael Mosman ruled
Dec. 28,2007, to suspend Oregon’s
domestic partnership law, many in
the sexual minorities community
had a flashback to his controver
sial nomination in 2003.
Mosman put the new law on hold pending
a Feb. 1 hearing in the Lemons v. Bradbury case. Six
days later he granted a motion to intervene in the
case for Basic Rights Oregon, an organization with
which he became familiar in 2003 when President
Bush nominated him to the federal judiciary.
At that time, Mosman was U.S. attorney for
Oregon and Roey Thorpe was BRO’s executive
director. Following a tip from an anonymous source,
Thorpe uncovered some troubling bench memos
Mosman had written while working as-a law clerk
for then U.S. Supreme Court Justice Lewis F.
Powell in 1986.
W
Judge Michael Mosman will hear testimony on
Oregon's domestic partnership law Feb. 1.
The memos concerned Bowers v. Hardwick, a rul
ing that upheld the constitutionality of a Georgia
law criminalizing oral and anal sex conducted in
private between consenting adults. (The Supreme
Court reversed its position on sodomy in 2003’s
Lawrence v. Texas case.) Powell was considered the
deciding vote in the Bowers case, and the memos
Thorpe unveiled suggest Mosman played a key role
in that decision.
“The right of privacy does not extend to protect
‘sexual freedom’ in the absence of fundamental
values of family and procreation,” Mosman wrote to
Powell in the 12-page memo. “The kind of marriage
that our society has traditionally protected is
heterosexual, not homosexual.”
The memo went on to express Mosman’s concern
about granting same-sex relationships the same
constitutional status as heterosexual marriages. “You
would necessarily suggest that homosexuals have
a right to adopt and raise children,” he wrote.
“Further^states would have great difficulty justifying
other restrictions on homosexuality, such as no
avowed homosexual public school teachers.”
Thorpe, along with prominent gay rights
activist Terry Bean, demanded a meeting with
Mosman in 2003 to discuss the memos he penned
as Powell’s clerk. Thorpe and Bean agreed not to
"/ think it's insensitive
and almost cruel,
but my gut says
that it wasn't based
on homophobia."
—Terry Bean
*
reveal what was said in that meeting, but both of
them came out of it convinced that Mosman had
shifted his views on homosexuality. They decided
not to publicly oppose the nomination.
The U.S. Senate confirmed Mosman by a un
animous vote Sept. 25, 2003. This included Sens.
Ron Wyden, D-Ore., and Gordon Smith, R-Ore.,
who originally recommended Mosman, a fellow
Mormon, for the post.
“He has long served Oregon and the
nation with distinction, and I have the
utmost confidence that he will continue to
do so on the District Court,” Smith said at
the time.
Wyden added, “Mike has worked hard to
show his commitment to equal rights for all
Americans.”
Looking back on her meeting with
Mosman and Bean in 2003, Thorpe said, “1
believe that [Mosman] came to regret his role
in the Bowers v. Hardwick case.” She referred
to a personal story that Mosman shared in
the closed-door meeting. “We didn’t let him
off the hook, but by the same token, Terry
and 1 both believe in the possibility of
change, which is why we do the work that we
do. We listened to him. We asked him lots of
questions. We challenged him, and in the
end, we both believed him.”
Thorpe says she has thought a lot about that
meeting since Mosman’s ruling to put domestic part
nerships on hold. “I think [his ruling] speaks to the
kind of privilege that some people have that they
never examine,” she said. “Would he say to a hetero
sexual couple who wants to get married, who set
a wedding date, let’s just postpone this until I have
answered every question 1 have? No, he wouldn’t do
that. He would understand the pain that that would
cause. What he doesn’t seem to understand is the
pain that his decision has caused.”
Thorpe said that while Mosman’s decision is
both wrong and hurtful, she does not believe it is
rooted in homophobia. Bean shares Thorpe’s
perspective. “I think it’s insensitive and almost
cruel, but my gut says that it wasn’t based on homo
phobia,” he said. “My hope is that he hadn’t stud
ied the law well enough to understand it and erred
on the side of caution, but I think it was a huge
mistake and very callous.”
Both activists say they will wait until Feb. 1 to
re-evaluate their assessment of Mosman. “I never
thought that he was our best friend, but 1 did
believe that he would treat us fairly, and now that
remains to be seen,” said Thorpe. “I think he has
moved. The question is has he moved far
enough." ©
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