07.03b. "Homosexual dominance of the legal system";"Swedish pastor sentenced to one month's jail for offending homosexuals," How would we judge whether it is true or false that homosexuals dominate a legal system? Eugene Volokh says (click his link to, with some difficulty, find Clayton Cramer's short reply):

"Homosexual dominance of the legal system":

Yup, that's what Clayton Cramer is noticing. Two to three percent of the population, and it turns out that they dominate the legal system. It's not just that a lot of heterosexuals happen to agree (rightly or wrongly) with the gay rights movement, so that heterosexuals dominate the legal system but happen to take many pro-gay-rights views. No, it's homosexual dominance.

Cramer is a very smart guy, who has done a lot of work that I admire for its accuracy and thoughtfulness (chiefly on guns). I link to him on many occasions, because he often makes good points. (UPDATE: For instance, the post I criticize also correctly condemns the Swedish legal system's punishment of antigay speech.) But if I am to condemn spurious claims of Jewish control of this or that institution-- for instance, fantasies of Jewish or Israeli control of U.S. foreign policy, extrapolated from the fact that non-Jewish U.S. leaders have been persuaded that they should support Israel -- I can't let this sort of stuff pass.

Thus, what "homosexual dominance of the legal system" might mean is that homosexuals would control the disposition of most cases they cared about. Presumably, these would be cases about homosexuality, a small fraction of the total-- much less than 1%. How many judges are homosexuals, or how many voters were homosexuals, would be irrelevant to dominance, just as how many judges were Sicilian would be irrelevant to Al Capone's dominance.

Thus, it does seem plausible, though by no means proven from this one example, that the Swedish legal system is dominated by homosexuals. Someone who spoke out against homosexuality is jailed; someone who speaks out in favor is not (I presume). And this applies even to someone speaking to members of his group rather than to the public at large-- it is as if someone speaking to a liberal political club had spoken out in favor of homosexuality, something which as far as I know was never remotely illegal in the United States, even when homosexuality itself was illegal.

This does not mean that the power of homosexuals is unlimited. Again, think about Al Capone. I doubt that he was able to use the legal system to execute opponents, even if, perhaps, he had enough power to stop the legal system from objecting to his own private executions. In the same way, the Swedish legal system did not execute the pastor; it merely jailed him for a month, at least for this first offense.

I can think of two problems with this way of thinking about dominance of a legal system, though: multiple dominances, and the question of means of dominance.

First, consider multiple dominance. Under my definition, it is possible for a given legal system to be dominated by more than one group. Homosexuals might get their way on every homosexuality case in Sweden, but lumber companies (to pick an arbitrary possibility) might get their way on every lumber case. It doesn't seem right to say that two groups can simultaneously dominate a legal system, though. If we are being more precise, we should use different terminology and say that homosexuals dominate the Swedish legal system when it comes to homosexuality cases. We should expect this to be the normal situation: it would be a wasteful expenditure of political power for any group to try to control outcomes it doesn't care about.

Second, what are the means of dominance? "Homosexuals" is a looser term than either "Al Capone" or "lumber companies"-- or "trial lawyers" for Texas, or even "The Liberal Democratic Party" for Japan (to allude to my own research). Homosexuals are perhaps an interest group, and there are even many organized homosexual lobbies-- getting closer to the other examples, if not all the way to Al Capone. But it is not clear that it is the homosexual lobbying groups that determine the outcomes in the legal system in the same way as Al Capone, or even by lobbying, donations, and electioneering. That might be the case, but it is equally plausible that, as Professor Volokh suggests, the judges are liberal and favor homosexual positions. To call this "homosexual dominance" seems wrong, because it is really "liberal dominance". If liberal thought changed on homosexual issues, the judges would change too. Alternatively, if all homosexual activism stopped, the judges would still issue rulings in favor of homosexuals.

Thus, while it is not outrageous to say that homosexuals dominate the Swedish or American legal systems, or the Roman Catholic Church (and okay, if a bit sloppy, in a throwaway comment like Mr. Cramer's), it is probably wrong. [permalink: 04.07.03b.htm]

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