Friday, July 10, 2015


There’s a practice in the law known as Judicial Notice. Every trial Judge is familiar with it. Simply stated, Judicial Notice means that the trier of the fact be it a judge or jury, may consider certain things to be true without any evidence or testimony offered to prove them.

Things like history, science, matters of public record and ordinary common knowledge can be ‘noticed’ or taken as proven. The day of the week and date of the month, the pull of gravity, the number of feet in a mile, the name of the our first President and the popularity of the Super Bowl are examples of facts the Court will notice without evidence or proof.

In the United States Supreme Court, ever since Louis Brandeis filed his famous brief in the case of Muller v Oregon in 1908, it is common for briefs to argue facts and present statements and arguments which were never claimed or argued in the trial court, with the expectation that the Justices will simply take Judicial Notice of the conclusions claimed in the brief.

The recent case of Obergefell v Hodges presents an interesting issue concerning Judicial Notice. The majority opinion contains two references to homosexuality characterizing it as an “immutable” condition.

Interestingly, the opinion clearly states that, in the last century, homosexuality was generally regarded as a mental disorder. In spite of that concession, the opinion concludes that homosexuality is now considered an immutable normality. In support, the opinion cites an Amicus Curiae brief filed on behalf of various psychological and psychiatric associations.

While the cited brief asserts that most homosexuals feel they have ‘no choice’ and that interventions intended to change sexual orientation are generally unsuccessful, it nowhere describes homosexuality as an ‘immutable’ condition.

Indeed, the Amicus brief states that sexual orientation necessarily involves relationships in which sexual activities take place. In short, those experts insist that homosexuality is not merely a disposition. It is conduct.

The Supreme Court went beyond the very experts they quote to take judicial notice that same sex intimate relations are a consequence of an “immutable” urge, which the parties are physically and psychologically unable to control.
Even if the Amicus brief had been quoted correctly, its contention about homosexuality hardly amounts to a fact of which a court should take judicial notice. Homosexual activity is not universally accepted as normal behavior, even by social scientists, and its claimed normality is certainly not a matter of  common knowledge of which a court should take judicial notice.
What is common knowledge, and what can and should be noticed as factual by the Courts is that human beings are of two kinds: male and female; that their differing biological make up reflects their separate roles in the procreation of human beings; that males and females have natural biologic, physical and emotional dispositions which tend them toward the propagation of the human race.

Moreover, it is common knowledge that the sex drive is one of the most forceful human emotions. Human history is replete with tales of heroism, villainy,  death and achievement fueled by real or fancied sexual gratification. Certainly no testimony is needed to establish that organized governments commonly establish laws designed to direct the reproductive urge toward social desirable consequences.

Nor have the various abnormal sources of coital pleasure escaped the attention of mankind. Especially in those circumstances where males are denied the company of females, homosexual activity often prospers. That it has little to do with natural inclination or preference, and much to do with the circumstance of enforced abstinence is a matter of common knowledge noticeable by courts.

The conclusion is rather obvious. The majority in the Obergefell case subscribed to an undeniably political screed, based not on traditional legal principles, but founded entirely on the personal opinions and biases of the signatories.

The evil wrought by the Obergefell decision will descend on American society like an opaque curtain. Behind it will fester a myriad of unexpected and untoward consequences.

The slippery slope of Hedonism will be greased yet again, and our beloved nation will slide further toward Armageddon.



    Dear Judge Brennan,

    I'm sure you know what you're talking about when you criticize the shaky
    rationale for the Supreme Court's same sex marriage decision. But to my
    legally unsophisticated mind, most of the big decisions are supported by
    similarly arbitrary rationales. Mood, temperament and ideology seem to
    be way more important than they ought to be. But that's the way it is.
    Under the robes, the justices are just flawed, privileged people.

    The above article by Jesuit Fr. Thomas Reese might be of interest to
    you. (Warning: Reese is probably what you would call liberal.) Reese
    likens the current gay marriage controversy in the Catholic Church to
    the now-settled issue of divorce and remarriage.

    I had included this link in a comment I attempted to post on your blog,
    but I again hit the wrong button at the wrong time and lost my brilliant
    work in the ether. No matter.

    But I did want to bring Reese's essay to your attention.

    Also, I wanted to point out that faithful, loving marriage is probably
    the opposite of hedonism.

    Back in the 1970's before there was AIDS, when I lived in Brooklyn I
    used to have to drive up the west side of Manhattan past the abandoned
    steam-shjp piers on the Hudson River to get out of The City on weekends.
    This was near the West Village neighborhood, where many gays lived.
    West Street was crawling with gay men, many of them dressed like The
    Village People band characters and other gay stereotypes, cruising the
    street for hook-ups on the piers. They looked to me like an ant colony
    as they crawled through the holes in the pier fences.

    THAT was hedonism (and despicable hedonism at that).

    Marriage is the opposite, I think.

    Just sayin'.

    Al Cannistraro

  2. Al:
    As a graduate of Jesuit-run University of Detroit, I am well acquainted with Jesuit sophistry. Father Reese is wrong on many counts, not the least of which is acceptance of the Supreme Court usurpation of legislative authority. Like so many politicians in Washington, Reese touts the supine counsel that the way to get along is to go along.
    Truth will out. No lasting civilization can be built on defiance of the natural law.