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No, no, no, there's no such thing as an 'activist' judge

Read the Clerk on Judge Gertner. I'd pay good money to see a debate between him and Chris on this one. Whatever one may think about her being right on the result, read all the way to the end: the Clerk seems to have her pinned to the mat with the law on this one:

However, it appears that Judge Gertner simply ignored Massachusetts law in this case. On May 18, 2004, some ten days before Judge Gertner issued her opinion, the Supreme Judicial Court of Massachusetts found that, under the state's law, a false accusation of homosexuality is actionable as defamation. Callahan v. First Congregational Church of Haverhill, 808 N.E.2d 301, 304, 314 n.19 (Mass. 2004). The fact that the Supreme Judicial Court of Massachusetts references cases that predate Lawrence and Goodridge in support of this contention demonstrates that Judge's Gertner's conviction that those cases alter the defamation calculus is not shared by the state's high court. See id. at 314 & n.19 (citing Gray v. Press Communications, LLC, 775 A.2d 678, 683-84 (N.J. 2001), which collects other cases). It could be that Judge Gertner just failed to note the recent Massachusetts decision, of course, but her opinion gives no indication that she ever looked. On this specific topic she notes only cases from "outside this jurisdiction" without ever stating that none existed from within and then discards them on the basis of Lawrence and Goodridge. Morever, the judge's specific language simply indicates that her own policy preferences are what is at work rather than her understanding of Massacusetts's law (e.g., "I reject the offensive implication of plaintiffs' argument . . . .").


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I think that if you go back and reread the Callahan case you will notice that the Mass Supreme Court said only that the court had jurisdiction to hear the defamation case. There was no judgement passed on the claim's validity. Furthermore, as society progresses in its social values, courts increasingly are turning away from the immediate assuption that accusation of homosexuality should be defamatory per se. A random sampling of recent decisions from across the country reflect the discrepencies in rulings and the change in beliefs. Especially after Lawrence v. Texas, 539 U.S. 558 (2003) eliminated a common basis for the support of homosexuality claims being defamatory (the criminalization of sodomy), it would appear that Gertner did not simply ignore caselaw when making her decision.

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