Wednesday, October 24, 2007

Tomorrow in Utah: judicial intemperance day ("mind-warped queers" redux)

It has been called "the most intemperate judicial opinion of all time." It is cited as an example of what not to do in The Judicial Opinion Writing Handbook. It's one of the most notorious judicial opinions ever issued in this country, it's from Utah, and tomorrow is its 30th Anniversary.

Salt Lake City v. Piepenburg, 571 P.2d 1299 (Oct. 28, 1977), involved a theater owner convicted of showing an obscene movie. Writing for the Utah Supreme Court, Chief Justice A. H. Ellett acknowledged that the U. S. Supreme Court had set forth a minimum constitutional standard required to find material obscene, i.e., that the material, “when taken as a whole, lacks serious literary, artistic, political, or scientific value.” Some state courts, "acting the part of sycophants," were actually following that standard, Ellett wrote disgustedly:
It would appear that such an argument ought only to be advanced by depraved, mentally deficient, mind-warped queers. Judges who seek to find technical excuses to permit such pictures to be shown under the pretense of finding some intrinsic value to it are reminiscent of a dog that returns to his vomit in search of some morsel in the filth which may have some redeeming value to his own taste.
It wa also OK for the prosecutor to call the bishops of prospective jurors and ask if they went to church regularly, Ellett ruled. "One can be sure that the defense attorney (if he was a good lawyer) would have made inquiry among the pimps, prostitutes, homosexuals, and other members of the pornographic community to see if any prospective jurors might be favorably inclined to protect one accused of showing pornographic films."

Although the Utah Supreme Court disavowed both the language and rationale of Piepenburg in 1983, Justice Ellett remained proud of his opinion. It's one of several entertaining stories in his autobiography that lend new meaning to the concept of judicial activism.


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