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.