Last edited: January 27, 2005

Smith’s Pick Stirs Gay-Rights Controversy

The Oregonian, April 21, 2003
1320 SW Broadway, Portland, OR 97201
Fax: 503-294-4193

By Jim Barnett

WASHINGTON—What once seemed like a slam-dunk nomination for the federal judiciary in Oregon could turn into a test of political wills for Oregon’s two senators, Republican Gordon Smith and Democrat Ron Wyden.

Michael Mosman, the U.S. attorney in Portland, is Smith’s choice for a vacant district judgeship and is still regarded as a favorite of the Bush White House. But recent revelations of Mosman’s views on gay rights, first expressed in 1986, have delayed his selection and what otherwise would likely be easy Senate confirmation.

Now, gay-rights groups are demanding explanations from Mosman, putting Smith’s carefully crafted reputation as a friend to the homosexual community on the line. Wyden, meanwhile, could be the only defense against a filibuster by the Senate’s increasingly restive Democratic minority if he chooses to support Mosman’s nomination.

The senators have cooperated in filling the vacancy created when U.S. District Judge Robert E. Jones took senior status in 2000. But they could face rough going if national gay-rights groups actively oppose Mosman’s nomination.

“If the gay-rights community makes this nomination a litmus test, then quite frankly, they’re in the middle of it and they’re going to have to take sides,” said Jim Moore, an independent political analyst in Portland.

It’s unclear whether that will happen. But gay-rights activists say they’re still waiting for answers from Mosman.

“What I want him to show is that he has come to understand that relationships need to be judged on their quality, not whether they are gay or straight,” said Roey Thorpe, executive director of Basic Rights Oregon, an advocacy group in Portland.

Mosman, 46, emerged as the top candidate in January after Ray Baum, a lawyer for Smith’s family business, withdrew. But controversy erupted in March, when Basic Rights disclosed Mosman’s role in a pivotal 1986 case, Bowers V. Hardwick.

The group uncovered and presented to Smith two “bench memos” that Mosman had written as a clerk to Supreme Court Justice Lewis F. Powell Jr. Mosman urged Powell to uphold Georgia’s anti-sodomy law against a claim that police invaded a man’s privacy by arresting him in his home.

Memos to court’s tie-breaker

Mosman prepared the memos in March and June 1986, as it became clear Powell would be the court’s tie-breaking vote. He wrote that striking down the Georgia law would lead to an unwarranted expansion of privacy rights under due process.

Such a ruling would leave “no limiting principle” against prosecution of other sex crimes such as prostitution, Mosman wrote. It also would jeopardize rights that society previously had reserved to heterosexuals.

“Without belaboring the point, I am convinced that the right of privacy as it relates to this case has been limited thus far to marriage and other family relationships,” Mosman wrote to Powell. “So limited, the right of privacy does not extend to protect ‘sexual freedom’ in the absence of fundamental values of family and procreation.”

Mosman has declined requests by The Oregonian to discuss the memos. But in a recent book about gay rights and the Supreme Court, Mosman is quoted as saying that his feelings about homosexuality were secondary to his concerns about the law.

“The battle was really about . . . what direction the court was taking on due process,” Mosman said in “Courting Justice: Gay Men and Lesbians v. the Supreme Court.

Mosman added: “The (sodomy) issue could have come to the court as an equal protection case and would have had a better hearing. I would have been more receptive to it.”

It’s unclear exactly what impact the memos had on Powell’s decision. Powell joined a 5-4 majority in upholding the Georgia law, but later expressed regret. Gay-rights groups still regard the case as a devastating defeat for their cause.

Nevertheless, Thorpe and other advocates said they are willing to give Mosman an opportunity to update his views.

In the years since the Hardwick case, they note, society has become more accepting of homosexuals: Most states have repealed anti-sodomy laws, gay marriages and adoptions have become more widely accepted, and the court is debating a Texas case that could reverse its opinion in the Hardwick decision.

“He needs to clarify what his views are,” said Winnie Stachelberg, political director for Human Rights Campaign, an advocacy group in Washington. “These are issues he will face not in the 1986 context but in the context of 2003 and beyond.”

Added Thorpe: “We believe in change here. It wouldn’t be right to not leave room for people to change.”

Much is at stake for both Smith and Wyden, and both want Mosman to succeed.

Test on Smith’s rights stand

For Smith, the nomination could become a test of his credibility as an advocate for gay rights within the Republican Party. Smith won an important endorsement from Human Rights Campaign after supporting hate-crimes legislation, helping his re-election last year.

In a recent interview, Smith downplayed the significance of the Powell memos and suggested that given the opportunity, Mosman could explain himself to the satisfaction of critics.

“This is a decision that was rendered in 1986,” Smith said. “Isn’t it possible that Mike Mosman could also have an evolving view on these issues? I think Mosman is an outstanding legal scholar and an extraordinary U.S. attorney for Oregon.”

The stakes could be higher for Wyden. Although his party controls neither the White House nor the Senate, Democrats are regarded as the chief defenders of gay rights. If Wyden endorses Mosman, his decision could be second-guessed by colleagues, including a handful of Democratic senators running for president in 2004.

Democrats have threatened to filibuster high-profile nominees, and they might be emboldened to take on others if they succeed, said Moore, the analyst. In that case, Mosman’s nomination also could be held hostage to political concerns.

“It depends on what happens with the other filibusters going on,” he said.

Wyden hopes to avoid a national controversy over the nomination, said Josh Kardon, his chief of staff. But first, the senator plans to meet with Mosman to discuss the concerns raised by Basic Rights and decide whether to support him.

“Mike Mosman is someone Senator Wyden has supported in the past and someone he would like to support for the federal bench,” Kardon said. “But legitimate questions have been raised that require thorough consideration.”

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