Judge: I wasn’t so articulate with anti-gay rhetoric

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Michael Boggs, once a bigoted south Georgia lawmaker now up for a federal judgeship, says he's really sorry about helping to ban gay marriage and isn't sure why he touted his anti-gay marriage stance in a judicial campaign.

But still, he really really wants that new job. The Georgia Court of Appeals judge is up for a seat on the U.S. District Court for the Northern District of Georgia thanks to a nomination from President Obama and a deal cut with Republican senators. The nomination caused an uprising among Democratic lawmakers and progressives, who seized on his support of a 2004 gay marriage ban, increased abortion restrictions and the Confederate flag. He's even spoken out against "homosexual Boy Scout leaders." Georgia Equality has called on its supporters to rally against Boggs' nomination. So did HRC.

Senators grilled Boggs during a May 13 hearing in which he tried to soften his anti-gay rants of the past. Now, in 74 pages, he responds in even greater detail about his controversial positions.

"I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally, and with respect and dignity," Boggs writes.

After all, he did once approve an adoption by a lesbian couple.

The highlights:

On calling gay marriage ban 'good values'

 

In 2004, while a member of the Georgia legislature, you spoke on the floor in support of a resolution calling for a state constitutional amendment banning same-sex marriages. During your speech, you stated that lawmakers should be able to come together because such a ban was “commonsensical [and] premised on good conservative Christian values.” You also suggested that the significant step of amending the state constitution was warranted to protect against “the dangers we face with respect to activist judges.”

Who do you consider to be an “activist judge”?

Response: It would be inappropriate for me, as a sitting judge of the Court of Appeals of Georgia and a nominee for a federal district court judgeship, to express my personal opinion about whether any particular judge is “activist.” Respectfully, when I talked about activist judges in that floor speech ten years ago as a state legislator, I was referring generally to the possibility of a judge ruling that same-sex marriage was constitutional. This issue looked different to me ten years ago when I was serving in a very different role as a state legislator than it looks now, especially after having been a judge for the last ten years. Federal judges have an obligation to apply precedent and uphold the Constitution, and if confirmed, I am committed to faithfully apply precedent whether it be United States v. Windsor, 133 S. Ct. 2675 (2013), Lawrence v. Texas, 539 U.S. 558 (2003), Romer v. Evans, 517 U.S. 620 (1996), or any other decision of the United States Supreme Court or the Eleventh Circuit Court of Appeals. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly.

Was Justice Kennedy an “activist” when he wrote the majority opinions in Lawrence v. Texas, 539 U.S. 558 (2003) or United States v. Windsor, 570 US 12 (2013)?

Response: These cases are binding precedent, and if confirmed as United States District Court Judge, I would apply these precedents and the binding precedent of all cases of the United States Supreme Court and the Eleventh Circuit Court of Appeals fairly and impartially. During the entirety of my ten-year judicial career I have faithfully followed binding precedent.

On gay adoption

 

At your nomination hearing, you testified about a case when you were a trial court judge, wherein the lawyer on the case told you that he had presented the case to your circuit’s chief judge who refused to hear it. The case involved a woman who identified herself as a lesbian in chambers on the question of approving her adoption of a child from foster care. You testified that you heard the case and approved the adoption. Understanding that an adoption case may be sealed, I do not expect you to provide any identifying details on this case. However, can you provide me with the name and contact information of any person who can personally verify the facts of the matter as you testified to the Committee?

Response: Due to privacy concerns, this answer was provided confidentially to the chair and ranking member.

On throwing out federal Defense of Marriage Act

 

Every nominee who comes before this Committee assures me that he or she will follow all applicable precedent and give them full force and effect, regardless of whether he or she personally agrees or disagrees with that precedent. With this in mind, I have several questions regarding your commitment to the precedent established in United States v. Windsor. Please take any time you need to familiarize yourself with the case before providing your answers. Please provide separate answers to each subpart. In the penultimate sentence of the Court’s opinion, Justice Kennedy wrote, “This opinion and its holding are confined to those lawful marriages.”

Do you understand this statement to be part of the holding in Windsor? If not, please explain.

Response: Yes.

What is your understanding of the set of marriages to which Justice Kennedy refers when he writes “lawful marriages”?

Response: It is my understanding that he is referring to same-sex marriages that a State has recognized as lawful.

Is it your understanding that this holding and precedent is limited only to those circumstances in which states have legalized or permitted same-sex marriage?

Response: Yes. As I understand the holding in Windsor, it applies to Section 3 of the Defense of Marriage Act’s prohibition against federal recognition of same-sex marriages that a State has recognized as lawful.

Are you committed to upholding this precedent?

Response: If confirmed, I would faithfully follow Windsor, and any other relevant precedent from the United States Supreme Court and Eleventh Circuit Court of Appeals, on this issue as with any issue.

Throughout the Majority opinion, Justice Kennedy went to great lengths to recite the history and precedent establishing the authority of the separate States to regulate marriage. For instance, near the beginning, he wrote, “By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate
States.”

Do you understand this portion of the Court’s opinion to be binding Supreme Court precedent entitled to full force and effect by the lower courts? If not, please explain.

Response: Yes. The entirety of all majority opinions of the Supreme Court are binding precedent and should be faithfully followed by lower court judges unless specifically overruled by later Supreme Court decisions.

Justice Kennedy also wrote, “The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.”

Do you understand this portion of the Court’s opinion to be binding Supreme Court precedent entitled to full force and effect by the lower courts? If not, please explain.

Response: Yes. The entirety of all majority opinions of the United States Supreme Court are binding precedent and should be faithfully followed by lower court judges unless specifically overruled by later United States Supreme Court decisions.

Justice Kennedy wrote, “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’"

Do you understand this portion of the Court’s opinion to be binding Supreme Court precedent entitled to full force and effect by the lower courts? If not, please explain.

Response: Yes. The entirety of all majority opinions of the Supreme Court are binding precedent and should be faithfully followed by lower court judges unless specifically overruled by later Supreme Court decisions.

On backing Georgia's gay marriage ban

 

When a state constitutional amendment to ban same-sex marriage came before the Georgia House in February 2004, you were the first to rise and speak in support.

Why did you vote for this amendment?

Response: When I voted in favor of this amendment over ten years ago as a Democratic state legislator, I was personally opposed to same-sex marriages. The overwhelming majority of my constituents agreed with this position at that time as evidenced by the fact that when the Constitutional Amendment was presented to the public for a vote in November of 2004, 90% of the constituents from my legislative district who voted, voted in favor of the proposed Amendment. This issue looked different to me ten years ago when I was serving in a very different role as a state legislator than it looks now, especially after having been a judge for the last ten years.

Why did you choose to speak on it and to be the first speaker to rise in support of the measure, given that, as reflected in your questionnaire responses, you rarely spoke on the House floor?

Response: I spoke on this resolution because the Democratic Speaker of the House asked me to speak on it, just prior to the call of the resolution for debate. Absent this request, I would not have spoken on the resolution. The Speaker indicated to me that he decided to ask me to speak and to call me as the first speaker to demonstrate that there was support for this resolution within the state from among rural Democrats. Forty-eight House Democrats supported the resolution. It passed by three votes.

On 'activist judges' and gay marriage

 

In your remarks, you said: “I want to stand before you today and tell you that it’s my opinion, both as a Christian, as a lawyer, and as a member of this House that it’s our opportunity to stand up in support of this resolution. I think it’s important to recognize the dangers that we face with respect to activist judges, with respect to mayors who are operating in derogation of current state law.”

The Supreme Court in United States v. Windsor, 133 S. Ct. 2675 (2013), found Section 3 of the federal Defense of Marriage Act unconstitutional. Do you believe the Supreme Court majority in Windsor was “activist”?

Response: Judges have an obligation to apply precedent and uphold the Constitution, and if confirmed, I am committed to faithfully applying precedent whether it be United States v. Windsor, 570 U.S. 12 (2013), Lawrence v. Texas, 539 U.S. 558 (2003), Romer v. Evans, 517 U.S. 620 (1996), or any other decisions of the United States Supreme Court or the Eleventh Circuit Court of Appeals. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally, and with respect and dignity.

Numerous courts have applied Windsor to conclude that states’ bans on same-sex marriage or on recognition of same-sex marriages from other states are unconstitutional. Do you believe that any judge who decides, under the Constitution of a state or the United States, that gay and lesbian Americans have a right to marry or to have a marriage recognized is an “activist judge”?

Response: I would define “judicial activism” as the act of judges who decide cases based on their own personal public policy preferences or who decide cases without regard to strict compliance with the law and precedent. I have no reason to believe that any judge who decides, under the Constitution of a state or the United States, that gay and lesbian Americans have a right to marry or to have a marriage recognized is “activist.” Judges have an obligation to apply precedent and uphold the Constitution, and if confirmed, I am committed to faithfully applying precedent whether it be United States v. Windsor, 570 U.S. 12 (2013), Lawrence v. Texas, 539 U.S. 558 (2003), Romer v. Evans, 517 U.S. 620 (1996), or any other decisions of the United States Supreme Court or the Eleventh Circuit Court of Appeals. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally and with respect and dignity.

On decision striking down Georgia's sodomy law

 

In your remarks, you said: “In 1998, the Georgia Supreme Court [in Powell v. State, 510 S.E.2d 18 (1998)] struck down Georgia’s sodomy laws and I found it interesting that the lone dissent in that case by Justice Carley speaking with respect to the state regulating the private sexual conduct of consenting adults, that Justice Carley indicated quote that ‘just because, that, because this right is not in the context of, or in the text of the Constitution, its boundaries are necessarily unclear.’”

Did you believe in 2004 that the six Georgia Supreme Court Justices in the majority in Powell were “activist judges”? Do you believe that today?

Response: When I made these statements as a state legislator in 2004, I disagreed with the opinion. The Powell decision is binding precedent. As a Judge of the Court of Appeals, I would faithfully apply the Powell majority decision. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally, and with respect and dignity.

In 2004, did you agree with Justice Carley’s dissent in Powell? Do you still agree with it today?

Response: The Powell decision is binding precedent. As a Judge of the Court of Appeals, I would faithfully apply the Powell majority decision. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally and with respect and dignity.

On sodomy, Georgia and Texas

 

Justice Carley’s dissent quoted from and repeatedly cited Bowers v. Hardwick, 478 U.S. 186 (1986). Prior to your remarks, Supreme Court decided Lawrence v. Texas, 539 U.S. 558 (2003), which found: “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.”

In 2004, did you believe that Bowers was rightly decided? Do you believe that today?

Response: Regardless of my views then or now, I would be bound by the majority opinion in Lawrence. It would be inappropriate for me, as a sitting judge of the Court of Appeals of Georgia and a nominee for district court judge, to express my personal opinion about whether Bowers was rightly decided in 2004 or whether I believe that today. Judges have an obligation to apply precedent and uphold the Constitution, and if confirmed, I am committed to faithfully applying precedent. Lawrence v. Texas, 539 U.S. 558 (2003) is binding precedent and if confirmed, I would faithfully follow this decision of the United States Supreme Court and any decision of the Eleventh Circuit Court of Appeals on this, or any other issue. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally and with respect and dignity.

Why did you rely on a dissent that itself repeatedly relied on a decision that since had been overruled?

Response: Respectfully, when I made this floor speech ten years ago in my capacity as a state legislator, the issue of same-sex marriage looked different to me than it does today in my capacity as a judge who is and would continue to be bound by precedent when deciding cases. If confirmed, I am committed to faithfully applying precedent whether it be United States v. Windsor, 570 U.S. 12 (2013), Lawrence v. Texas, 539 U.S. 558 (2003), Romer v. Evans, 517 U.S. 620 (1996), or any other decisions of the United States Supreme Court or the Eleventh Circuit Court of Appeals. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally, and with respect and dignity.

Have you ever believed, and do you believe today, that Justice Scalia’s dissent in Lawrence was correct?

Response: Judges have an obligation to apply precedent and uphold the Constitution, and if confirmed, I am committed to faithfully applying precedent. The majority opinion in Lawrence v. Texas, 539 U.S. 558 (2003) is binding precedent and if confirmed, I would faithfully follow this decision. I believe that my record as a state court judge for ten years demonstrates my commitment to precedent and to treating all litigants who appear before me fairly, equally, and with respect and dignity.

On campaigning against gay marriage

 

Your questionnaire supplemental documents include an article in the Waycross Journal-Herald dated July 8, 2004. This article recounts a forum in which you spoke as a judicial candidate. According to the article, you stated: “I was born in Ware County and have tried in my career to improve the community. I ask you to reflect on my career. I have worked for the community because I care about it. I believe you should elect judges who are active in the community. I am proud of my record. You don't have to guess where I stand – I oppose same-sex marriages ... I have a record that tells you exactly what I stand for. I believe in separation of powers and believe making laws should be left to the legislature."

Was conveying your position on an issue in this sort of manner during a judicial campaign a frequent practice for you in 2004? What about during your later judicial campaigns?

Response: No. Making statements such as this was not a frequent practice for me in 2004 and was not a practice at all in my later judicial campaigns and I regret these comments. These comments were made when I was still a state legislator, but running for judicial office, and I believe that I could and should have done a better job separating the roles of each as the job of a judge is wholly different than the job of a legislator.

For what reason did you convey your position on the issue of same-sex marriage to voters when you were campaigning for judicial office?

Response: I have no idea why I would have said that other than, like any other candidate for public office, I was running based on my record of community and legislative service. Given the jurisdiction of the court for which I was seeking office, this issue was not likely to come before me. Looking back, I regret that I was not more articulate and wish that I had better explained myself and the role of the office which I was seeking more artfully. This comment was made while I was running for judge, but also while I was still a state legislator, and I should have done a better job of separating the roles of each as the job of a judge is wholly different than the job of a legislator.

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