Does Judge Michael Mosman
hate gays? The question came up Friday when the U.S. District Court judge in Oregon issued a temporary injunction against HB 2007
, the law providing domestic partnership rights and benefits to gays and lesbians. It was to have gone into effect Wednesday, Jan. 2, but will now have to await the outcome of another hearing Feb. 1.
This isn't the first time that Mosman's name has come up around the issue of gay rights. Back in 2003, when Mosman was then just a candidate for U.S. District Court in Oregon, he had the support of U.S. Sen. Gordon Smith (R-Ore.), a fellow Mormon. But his candidacy concerned gay rights advocates at the time due to the fact that, earlier in his career, as a young conservative clerk for U.S. Supreme Court Justice Lewis Powell, Mosman was the driving force behind Justice Powell's controversial decision to flip his vote in Bowers v. Hardwick
(1986). The decision upheld Georgia's sodomy law in a case involving two men arrested in a private home for consensual sex.
In the spring of 2003, Mosman met privately with two of Oregon's most powerful voices in the gay rights arena—Roey Thorpe
(then Executive Director of Basic Rights Oregon) and Terry Bean
(co-founder of the Human Rights Campaign)—to discuss his written opinions regarding Bowers v. Hardwick
Although both parties agreed at the time to keep their conversation confidential, they talked to me separately on Monday, December 31, about their conversation in 2003 in light of Friday's ruling. They upheld their end of the bargain by not revealing details from the conversation.
Even though Bean believes Friday's ruling was a “huge error” and felt it was “insensitive to wait until the last minute,” he would like to meet with Mosman again to discuss his latest decision. As for their previous talk, Bean said via cell phone: “(Roey and I) grilled him hard for over two hours. After that meeting, I was convinced he was not a homophobe
. He apologized for what he called his past mistakes.”
Thorpe agreed with that characterization.
“I don't think he's a bad guy, even though he played such a horrible role [with the Bowers v. Hardwick
decision]." Although Thorpe would not share the details of their conversation, she did say that, “it was personal, emotional and convincing," concerning things that had happened to Mosman personally that led her to believe he was not anti-gay. "He seemed to care less about being appointed than what he was thought of as a person.”
“It's callous and makes me sick to think, with his current ruling, what he's done to gay and lesbian couples,” says Thorpe. “But I don't think he's personally opposed to domestic partnership. I just think he has a lack of understanding when it comes to Oregon's initiative and referendum laws."
Thorpe says the most telling aspect of the meeting in 2003 was that it happened at all. "Most of the appointees during the current presidential administration are not being held accountable for their past writings."
Thorpe, who stated a final decision still hasn't been made, said "[Mosman] is not a smooth politician. He's a lawyer and a judge. [After he was appointed], he called and told me that when this started out, he felt like he was the most persecuted person. But after it was done, it was of the best decisions of his career. It was a chance for him to clear the air and in some small way indicate his previous actions and opinions were wrong.”
One footnote: Mosman's decision doesn't turn on the validity of domestic partnerships. Instead, it focuses on the Oregon Secretary of State's signature verification process for intiative and referenda. He's based his preliminary opinion on a case in Idaho, which, according to Basic Rights Oregon attorney Margaret Olney, is not "controlling," or applicable in other words. "The idea that there is some individual vested right when you sign your name is wrong," Olney said. "It's equating a signature to a vote."