Op Ed

Hagedorn’s Views on Gay Rights Matter

Judge’s past criticism of key Supreme Court ruling suggests he could oppose rights of same-sex couples.

By - Feb 18th, 2019 11:35 am
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Brian Hagedorn. Photo courtesy of the Friends of Brian Hagedorn.

Brian Hagedorn. Photo courtesy of the Friends of Brian Hagedorn.

In 2003, Justice Anthony Kennedy, who was nominated to the United States Supreme Court by President Ronald Reagan, wrote one of the most important Supreme Court decisions on privacy and liberty in the history of the court. The court’s opinion in Lawrence v. Texas begins by noting the following fundamental principle of our country:

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. … Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct.”

The facts that led to the case of Lawrence v. Texas are worth noting. In 1998, police in Texas were dispatched to a residence in response to a weapons disturbance. Police entered the apartment of John Lawrence where they found Lawrence and another man engaging in sexual intercourse. Police arrested Lawrence and his acquaintance, not for anything having to do with weapons, but rather for the crime of engaging in sexual intercourse in the privacy of Lawrence’s residence.

The two men were charged with crimes for violating Texas’ anti-sodomy law, which criminalized certain adult, consensual sexual conduct between two people of the same sex.

Lawrence and his acquaintance were convicted. They appealed their convictions, and the case ultimately made its way to the United States Supreme Court.

The Supreme Court ruled that the Texas anti-sodomy law was unconstitutional because it violated the due process clause of the 14th Amendment to the United States Constitution.

In its opinion, the United States Supreme Court discussed the unconstitutional notion of denying liberty to same-sex people by criminalizing those who “choose to enter upon relationships in the confines of their homes and their own private lives.” The court wrote that same-sex couples must “retain their dignity as free persons” and that “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” The court found the Texas law furthers no legitimate state interest that can justify its intrusion into the personal and private lives of two consenting adults.

Wisconsin Court of Appeals Judge Hagedorn is running for a seat on the Wisconsin Supreme Court. Therefore, it is important to know what he believes about liberty interests, particularly on constitutional issues, whether they are federal or state constitutional matters.

Milwaukee Journal Sentinel columnist Dan Bice recently wrote a column about Hagedorn’s blog posts. In a bizarre blog post from December 2005, Hagedorn mentioned Lawrence v. Texas, lambasting the landmark United States Supreme Court decision and suggesting it could lead to the legalization of bestiality in the United States:

“What if the dog liked it and frequently initiated it? Shouldn’t the ACLU come to the rescue of the man for having sex in the privacy of his home (or here, his own doghouse)? Doesn’t the idiotic attempt at reasoning, or more properly, the sweeping, grandiose, unsupported generalizations about ‘liberty’ that was Lawrence v. Texas cover precisely this sort of thing?”

In another blog post from October 2005, Hagedorn called the Supreme Court’s decision in Lawrence v. Texas a “travesty” and wrote, “the idea that homosexual behavior is different than bestiality as a constitutional matter is unjustifiable.”

Beyond the obvious absurdity and offensive notion of comparing consensual sex between two adults with bestiality, Hagedorn’s seeming concern about the legalization of bestiality has not come to fruition since the Supreme Court’s 2003 decision.

This week, another story about Hagedorn surfaced, relating to Hagedorn having founded a kindergarten through eighth-grade private school in 2016 that bans faculty, students and parents of students from being in same-sex relationships. The school’s code of conduct bans “immoral sexual activity,” which the school defines as “any form of touching or nudity for the purpose of evoking sexual arousal apart from the context of marriage between one man and one woman.”

Casey Hoff is a criminal defense attorney based in Sheboygan.

Categories: Op-Ed, Politics

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