With Donald Trump in the White House, it seems that hostility to LGBTQ equality is a ticket to a lifetime position as a federal judge. Kyle Duncan, Jeff Mateer, Matthew Kacsmaryk, Damien Schiff, Mark Norris, and Steve Grasz are among Trump’s nominees with records of opposing the equal treatment (and sometimes the basic humanity) of LGBTQ people.
Now we can add Wisconsin district court nominee Gordon Giampietro to this Hall of Shame. Buzzfeed reports that he has made terrible and offensive statements during radio interviews, media appearances that were unknown to the state nominations commission that recommended him to Sens. Ron Johnson and Tammy Baldwin.
They show a deep animus for LGBQ people. Critically, these were much more than conversations about religious beliefs. These conversations were indisputably about the law. Giampietro was expressing his strongly-held view that courts were deciding pro-equality cases wrongly.
Criticizing how a court ruled is, by definition, a criticism based on your view of the law and a statement of the factors that you believe the judge(s) should have considered.
On July 24, 2015, Giampietro did an interview with Lydia LoCoco to discuss the Supreme Court’s Obergefell ruling, which had just recently been decided. Some of the highlights:
Giampietro: Given this constitutional principle that the Court has laid down there really is no principled reason to say that polygamy isn’t the next thing to go. So the reality is as a constitutional matter you’re absolutely right Lydia. There’s no limiting principle here. There’s no reason why it couldn’t be these other arrangements.
…
Giampietro: The seeds for this problem go back decades, right? As soon as the contraceptive mentality set root, what is the articulation for why marriage should be with opposite-sex couples? There isn’t one! Unless society agrees that it has to do with the raising of children. And so we really are reaping what we sowed a few years ago.
Interviewer: So when my husband rants and raves about every problem in the world and his answer to everything is, “It was the pill! It was the pill!” He’s absolutely right. I mean, in a sense.
Giampietro: Yes, yes. Because that’s an assault on nature. And anytime you assault nature there’s going to be a backlash. And that’s what we’re seeing today. In all kinds of ways, not just with respect to contraception and marriage. Whenever you go against God’s plan, bad things are going to happen.
One of the major unanswered questions in constitutional law is the appropriate level of scrutiny to use when laws discriminate against LGBTQ people. Giampietro took a dim view of the Obama administration’s position, referring to the Obergefell oral arguments:
[The Obama] administration’s lawyer has admitted, they intend to treat same-sex marriage, or courts should treat same-sex marriage the way they treated civil rights. Race discrimination.
Giampietro also attacked equality proponents as “not at all tolerant” and claimed that “tolerance for the left is a one-way street.” Such “live and let live” framing is deceptive, since it erases from history that for decades, right wing groups have fought every effort to give LGBTQ people even the slightest societal acceptance or legal rights.
This was not the first time that Giampietro had discussed his views on LGBTQ equality with LoCoco. On July 4, 2014, a year before Obergefell but after the Defense of Marriage Act had been struck down as unconstitutional, he appeared on her Nazareth Project show. The interview revealed his clear and strong animus against LGBTQ people, and his extremely poor legal reasoning. Both factors make him unqualified for the bench.
Answering a question about religious liberty under the law, he hearkened back to
the general trend in our society about these very fundamental questions about homosexuality and gay marriage and contraception and now the free exercise of religion. It’s only been about 30 years. Let’s take the example of homosexuality. Thirty years ago it was constitutional for states to outlaw sodomy. Today we have a situation where it is a constitutional right—at least we’re heading in that direction—to require, to force states to recognize gay marriage. So what was a view of the human person was commonly accepted for thousands of years, within 30 years has changed dramatically.
So his “view of the human person” excludes non-heterosexuals. Since he brings this up as a reason he disagrees with court decisions striking down marriage bans, he clearly believes that this “view of the human person” should be a factor in judicial decisions regarding LGBTQ people. That means that his deeply offensive dehumanization of gays, lesbians, and bisexuals would likely be locked into his legal reasoning as a judge.
Giampietro has absolutely no understanding of what it is to be gay, lesbian, or bisexual. When the interviewer mischaracterized marriage for a same-sex couple as nothing more than “sexualized friendship,” he not only agreed, he also took it further:
Yeah, you touched on something that is exactly right. This new definition of marriage actually focuses marriage on the sex act. Because if it were simply that we wanted to honor the love of two people, we would allow sons to marry their mothers, brothers to marry their sisters, for example, to get them healthcare. Isn’t that a beautiful thing? Doesn’t society think that would be a great thing, if a sister could get her brother on healthcare?
…
[T]he only limit on [polygamy or sibling marriage], which is what the proponents of same-sex marriage would push, is some sort of verification that the two people are having sex. So we’ve reduced marriage to the sex act, which is incoherent. Society has never really had a concern about the sex act; it’s had a concern about the next generation. So it’s intimately involved with procreation.
Oh, that explains why we have always prohibited infertile couples from marrying!
In fact, marriage in our country has not been based on fertility, and it is not equality proponents who obsess about “the sex act.”
Giampietro’s animus runs so deep that he seems incapable of making even the most elementary legal analyses. Can he really not think of one legal argument applicable to polygamous marriages that would not apply to the marriage of two people? Does he really not understand that there are reasons to prohibit siblings from marrying each other that have absolutely nothing to do with allowing unrelated people to marry regardless of sex?
The interview also uncovers a bizarre understanding by Giampietro of constitutional law in the context of the Hobby Lobby case [which was actually based on a statute rather than the Constitution]:
My point is if the First Amendment fails to protect religious people [from providing employees contraceptive health coverage they – the employers – disapprove of for religious reasons], there is no other constitutional right that would protect a non-religious person from being coerced regarding any number of things. So, for example, if the government decides because of concerns about the climate, or overpopulation, that families can only have two kids—the government says, “If you’re pregnant with your third child, you must have an abortion.”
What constitutional right is that person going to say protects them from that legislation? There isn’t one. If the First Amendment’s been killed, there’s nothing else to protect those individuals.
This is hysterical, fear-mongering nonsense. It’s also a clear (and grossly inaccurate) statement of what the Constitution says. The Free Exercise Clause has never allowed individuals to use religion as a sword to harm others and deprive them of their legal rights, as in Hobby Lobby. But even if it did, that scenario does not occur in his pregnancy hypothetical.
It’s no wonder that Giampietro did not disclose these interviews to the screening commission that Sens. Johnson and Baldwin established. The commission members made their evaluations with woefully inadequate information, and the senators themselves should feel deceived.
Unfortunately, it is not uncommon for people to harbor animus against others. Nor is it uncommon for people’s animus to run so deep that their ability to reason is significantly compromised. It’s not even uncommon for a person applying for a job to hide their past from those (s)he wants a recommendation from.
But a person like that has no business being considered for a lifetime position as United States district court judge.
Both what was said, and the fact that it was not disclosed to the [Wisconsin Federal Nominating] Commission, raise serious questions about whether this nominee would be able to serve as a fair and impartial judge on a federal court.
As for the White House … Did they know about these interviews? If so, how can they justify nominating Giampietro anyway? And if they didn’t know, then it’s another sign that they simply don’t vet potential nominees for anything except ideology and willingness to be a rubber stamp for Donald Trump.
This nomination should be withdrawn.