THE ROBING ROOM

Ill-informed as to what constitutes historically documented non-vanilla sexuality. Aware of *Lawrence* but ruled that it does not affirm a fundamental liberty of choice in consensual sexual conduct (Doe v. Rector & Visitors of George Mason Univ.), saying that BDSM lacks a history -- a parochial and ignorant misstatement of the actual precedent for such conduct. Of course, plaintiff misbehaved badly according to the standards of the BDSM community but deciding which party to a dispute is right and then constructing a reason for doing so ex post facto, while long accepted practice in rabbinical courts, seems wonky jurisprudence in a secular state. That his argument in Doe rests substantially on his citation of a Scalia dissent renders it particularly odious. Doe may have been a bad hat who egregiously violated the culture of his school, but he was entitled to due process all the same, and Judge Ellis, in gratuitously injecting his ill-informed fantasies about BDSM into the proceedings, seems to have indulged in the very sort of judicial activism' his fellow right-of-center jurists are do fond of decrying in their liberal colleagues, even as he overlooked possible lines of argument that might have produced a just remedy without resorting to establishing flawed precedent that will only have to be repaired later. Granted, there must always be someone who is the smartest man in the room unless one has a room entirely filled with clones; but if so, one must expect that man to have done his homework, which Judge Ellis clearly failed to do here. Perhaps it is time for him to collect his gold watch and go fly his beloved aeroplanes instead.