Religion in Society

Pro-Family Groups Spotlight DOJ-Nominee David Ogden's Porn Ties

| by Baptist Press

WASHINGTON (BP) --- With the Senate in recess until Monday, pro-family groups are ratcheting up their opposition to Department of Justice nominee David Ogden, whose previous legal representation of pornographers and opposition to some child porn laws should make him unfit, they say, for the position.

In recent days the Alliance Defense Fund and Focus on the Family have sent out e-mails urging the defeat of Ogden, President Obama's nominee for the post of deputy attorney general, the No. 2 spot in the department. The Senate Judiciary Committee held a hearing Feb. 5 on Ogden's nomination but has yet to vote, and the groups are viewing the break as an opportunity to urge senators to oppose him.

Ogden, who some view as a possible future Supreme Court nominee, would help enforce the nation's anti-pornography laws.

Ogden told the committee during his oral and written testimony that his legal positions on controversial pornography-related cases represented the views of his clients and did not reflect his personal beliefs. But that hasn't been enough to appease opponents, who say that he could have turned down representing those clients if he found their positions so objectionable.

"That's a moral cop-out, and it's one reason why there are so many lawyer jokes," Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, told Baptist Press regarding Ogden's defense. "… A person's views on pornography are a window to a person's worldview, and this window shows a worldview that is inconsistent with what I want the American Justice Department to be."

The Alliance Defense Fund released a six-page memo to the Judiciary Committee Feb. 13, arguing against not only Ogden but also three other Obama nominees. Half of the memo pertained to Ogden.

Among Ogden's more controversial cases he:

-- filed a friend-of-the-court brief on behalf of the ACLU and two other groups in the early 1990s arguing that a child pornographer had been improperly prosecuted because the pornographer's material did not contain fully exposed views of genitalia.

-- submitted a friend-of-the court brief earlier this decade for more than a dozen library directors, urging the overturning of a law that required porn-blocking Internet filters be placed on public library computers if the libraries receive federal funds.

-- represented Playboy in a mid-1980s case when it was seeking to have the Library of Congress -- which had stopped such practices -- translate the magazine into Braille. He also represented Playboy several years later in a lawsuit targeting Puerto Rico's decision to remove obscene material from cable television.

-- represented PHE, Inc., one of the nation's largest distributors of hard-core pornography, in an early 1990s case.

His nomination has pornography supporters excited and opponents distressed. Colin Hardacre, a Los Angeles attorney who represents porn businesses, told a porn industry news website that "it is a nice change of pace to see the president choosing smart people with experience."

"This is a good sign for the adult industry," he said.

Pro-family leaders agree on that one point.

"Mr. Ogden's jurisprudential background is truly astounding," the Alliance Defense Fund wrote in its memo to Judiciary Committee members. "He has repeatedly been an advocate of sexually oriented businesses, including distributors of hard-core pornography."

Patrick Trueman, former chief of the Child Exploitation and Obscenity Section of the Justice Department, told Focus on the Family's CitizenLink that Ogden is "everything the pro-family movement has fought against."

Said Land, "In the Reagan administration, the Justice Department prosecuted pornographers, and the Obama administration has hired a man who defended pornographers to be the No. 2 man in the Justice Department. I can't think of a sharper contrast. It's sad and it's tragic and it should send all the wrong signals to all the right people about where the Obama administration's Justice Department is headed when it comes to the obscenity and pornography issue."

During his Senate testimony Ogden countered any criticism of his representation of pornographers by pointing to his work in the Clinton Department of Justice and his defense during that time of the nation's anti-porn laws. He served in three positions in the Clinton Justice Department, the last being as assistant attorney general for the department's civil division.

But Ogden's controversial positions don't stop with pornography.

On the issue of abortion, he filed a brief for the American Psychological Association in Planned Parenthood v. Casey (1992), arguing that "abortion rarely causes ... psychological or emotional problems" and that a post-abortive woman is "more likely to experience feelings of relief and happiness." He urged the court to strike down 24-hour waiting periods and spousal notification laws as unconstitutional. Several years earlier, he represented APA in urging the striking down of a parental-consent law.

On the issue of homosexuality, he represented several organizations in the late 1980s in arguing against the Army's exclusion of homosexuals in the military. He also represented the American Psychological Association earlier this decade in urging the U.S. Supreme Court to overturn anti-sodomy laws, writing that homosexuality is a "normal form of human sexuality." The Alliance Defense Fund says Ogden supports the use of "strict scrutiny" for equal-protection challenges brought by homosexual couples -- a legal doctrine that most courts have rejected.

"He has asserted that 'gay men and lesbians constitute a discrete and insular minority deserving strict equal protection scrutiny," ADF says. "... The only judicial opinion adopting that approach -- the California Supreme Court's decision ... has been resoundingly rejected by the people of California...."

Sen. Tom Coburn, a Republican from Oklahoma and a member of the Judiciary Committee, asked Ogden in written questions whether he personally believed there was a federal constitutional right to "same-sex marriage." Ogden, though, didn't budge.

"I have not studied this issue and therefore have not developed a personal view as to whether there is a constitutional right to same-sex marriage," Ogden wrote in reply.

Coburn also asked Ogden whether the nominee -- in light of his past legal positions -- would be able to defend the federal Defense of Marriage Act effectively in any theoretical court case. DOMA prevents the federal government from recognizing "gay marriage" and gives states the option of doing the same.

"As a general matter," Ogden wrote, "it is appropriate for the Department of Justice to enforce any law for which a reasonable argument can be made that it is constitutional. Under that standard, I would expect to be able to enforce DOMA."

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