tag:blogger.com,1999:blog-67055900657396386492024-02-08T15:31:55.316+00:00Gay Equality and the LawThis blog is dedicated to promoting equality under the law, and in broader society, for gay and lesbian Americans. I write about issues impacting the gay and lesbian community, including analyses of US Supreme Court and appellate court opinions, analysis of state high court and appellate court decisions, local issues (e.g. decisions by Boards of Education to ban gay-themed books), and national issues...Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.comBlogger26125tag:blogger.com,1999:blog-6705590065739638649.post-71065480642721748272010-05-09T09:45:00.004+01:002010-05-09T10:04:41.702+01:00The Louder They Shout, The More They Want It<strong><span style="font-family:arial;color:#cc0000;">The Louder They Shout, The More They Want It</span></strong><br /><br /><br /><p><br />WRITTEN ON 7 MAY 2010<br /><br /><br />Professor George Rekers is a professor of Neuropsychiatry and Behavioural Science Emeritus at the University of South Carolina School of Medicine. He holds a Ph.D. in human developmental psychology from the University of California Los Angeles, a Th.D. from the University of South Africa (a correspondence-only university), and an MBA from Southern Wesleyan University. He is a prominent social and cultural conservative who has gone to great lengths to agitate in favour of the abrogation of the civil rights of gay and lesbian Americans, and he has made it clear on numerous occasions that he considers homosexuality to be a “sin”. Rekers has testified in court that he considers the Bible to be the infallible word of God. Nevertheless, he holds himself out to be a scientist and an expert in the field of homosexuality; he is on the board of the “<strong>National Association for Research and Therapy of Homosexuality</strong>” (<strong>NARTH</strong>), which touts itself as a source of legitimate scientific information about homosexuality, and which promotes “reparative therapy” – a form of psychological intervention intended to “convert” gay men and lesbians into heterosexuals. In fact, NARTH has been widely condemned by the scientific community, and the American Psychological Association has warned that so-called "reparative therapy" can be extremely dangerous (several gay persons have committed suicide whilst undergoing such "therapy").<br /><br />Rekers is also a co-founder (with James Dobson) of the “<strong>Family Research Council</strong>” (<strong>FRC</strong>), which is a virulently homophobic propaganda-spewing organization which called for the criminalization of homosexuality in the early months of 2010. The FRC issues numerous position papers in which it condemns homosexuality as a diseased “lifestyle” which is intentionally chosen by gay men and lesbians. In making this pronouncement, the FRC and the NARTH stand in isolation; almost every reputable scientific and medical organization which has studied homosexuality considers this to be a normal variant of human sexuality, in much the same way that left-handedness is considered to be a normal variant of laterality.<br /><br />Rekers has appeared in court on several occasions, to promote legislation intended to prevent gay men and lesbians from adopting or fostering children. He appeared as an expert witness in a 2004 case involving the trial of the constitutionality of an n Arkansas state statute which forbad gay men and lesbians from adopting children (this legislation went into force in 1999). Pulaski County Circuit Court judge Timothy Fox held the Arkansas statute to be unconstitutional, referring to Rekers’ testimony as “extremely suspect” and commenting that Rekers appeared to be testifying purely for the purpose of promoting “his own personal agenda” (<strong><em>Howard v. Child Welfare Agency</em></strong>, Case No. CV 1999-9881 (2004)). The Arkansas Supreme Court subsequently affirmed this ruling in <strong><em>Howard v. Arkansas</em></strong>, 348 Ark. 471, 79 S. W. 3d 273 (2006).<br /><br />Rekers was also called as an expert witness in a Florida case defending that state’s ban on gay adoption (<strong>Fla. Stat. §63.042(3)</strong>), which had been in place since 1977. In this case (<strong><em>in re Gill</em></strong> (2008)), Miami-Dade Circuit Court Judge Cindy Lederman wrote that "Dr. Rekers’ testimony was far from a neutral and unbiased recitation of the relevant scientific evidence. Dr. Rekers’ beliefs are motivated by his strong ideological and theological convictions that are not consistent with the science. Based on his testimony and demeanor at trial, the court can not consider his testimony to be credible nor worthy of forming the basis of public policy."<br /><br /><strong>Equality Florida</strong>, an organization dedicated to advancing equal rights for gay persons, reported on May 7 that Attorney General <strong>Bill McCollum</strong> wasted $120,000.00 of taxpayer money securing Rekers' testimony (double the amount originally reported), and also lavished an additional $36,000.00 on Rekers' cohort Walter Schumm. McCollum is scrambling to put distance between himself and his "star" witness, but records clearly show that this money was paid to Rekers by the "<strong>Office of Attorney General -- Finance and Accounting</strong>" (see <a href="http://flair.myfloridacfo.com/approot/dispub2/cvphsrch.htm">http://flair.myfloridacfo.com/approot/dispub2/cvphsrch.htm</a>, the link to view payments made to Florida vendors).<br /><br />In short, Rekers is an extreme cultural conservative who has allowed his religious beliefs to adulterate the relevant science. He is virulently homophobic, and recently published an article calling on the American Psychiatric Association (APA) to revisit its 1973 decision to remove homosexuality from the “<strong>Diagnostic and Statistical Manual of Mental Disorders</strong>” (now in its Fourth Edition (<strong>DSM-IV</strong>)). Wayne Besen, the Executive Director of the New York based organization “<strong>Truth Wins Out</strong>”, which investigates and documents the anti-gay movement, states that “While he keeps a low public profile, his fingerprints are on almost every anti-gay effort to demean and dehumanize LGBT people. His work is ubiquitously cited by lobby groups that work to deny equality to LGBT Americans. Rekers has caused a great deal of harm to gay and lesbian individuals."<br /><br />It was reported earlier this week that Rekers returned from a 10 day European vacation last month with a “travelling companion” who has been identified as a gay “rent boy” (prostitute). Rekers has been engaged in frantic and desperate attempts at damage control. He first stridently insisted that he had been unaware of the fact that his companion was a gay prostitute until half way through the vacation. However, his story has changed several times since it first broke and was picked up by the mainstream media.<br /><br />Let’s examine the facts. This Bible-thumper hired a gay male prostitute – a person who at least earns an honest living, which is more than can be said of people such as Rekers, who specialize in stirring up hatred of gay Americans – who advertised on the web site named <a href="http://www.rentboy.com/">http://www.rentboy.com/</a>, to accompany him on a 10-day vacation in Europe!<br /><br />First, Rekers claimed that he had hired the rent boy unwittingly, to help carry his luggage due to the fact that he suffered from a painful back condition which made it difficult for him to travel without assistance.<br /><br />Yes, I can see that – were I a heterosexual man dedicated to stirring up hatred of gay persons, harming the gay community, seeking to ban gay persons from adopting or fostering children, and doing everything in my power to prevent the enactment of gay marriage and civil unions, and were I in need of somebody to carry my luggage for me due to medical reasons, the very first place I would look to for a porter would be a web site named <a href="http://www.rentboy.com/">http://www.rentboy.com/</a>, advertising the services of gay male prostitutes (excuse me, “escorts”!). This web site is unambiguous in its advertizing, and the advertizement for this particular rent boy even included the size of his endowment!<br /><br />Upon returning to Miami from his 10-day romp with the rent boy, Rekers was photographed carrying his own luggage while the rent boy stood in the background, carrying nothing. Rekers then changed his story – he then claimed that he had hired the (barely legal) rent boy so as to be able to preach to this young man about the error of his “lifestyle”, and to “save” his soul from eternal damnation! (Come to Jesus, my son!)<br /><br />Hypocrisy is an expensive and unforgiving teacher. “Lucien”, the Puerto Rican rent boy hired by Rekers, gave an in-depth interview to the <strong><em>New Times Miami</em></strong> confirming the sexual nature of the relationship between the blond “escort” and the professional homophobe. Rekers particularly enjoyed what he referred to as the “long stroke” – a special nude massage which Lucien administered “down there” once a day. Following this interview, the FRC dropped Rekers from its web site. Rekers placed the following “explanation” on his Facebook page for his fans:</p><ul><li><span style="font-family:courier new;"><em>Like John the Baptist and Jesus, I have a loving Christian ministry to homosexuals and prostitutes in which I share the Good News of Jesus Christ with them (see I Corinthians 6:8-11). Contrary to false gossip, innuendo, and slander about me, I do not in any way “hate” homosexuals, but I seek to lovingly share two types of messages to them, as I did with the young man called “Lucien” in the news story: [1] It is possible to cease homosexual practices to avoid the unacceptable health risks associated with that behavior, and [2] the most important decision one can make is to establish a relationship with God for all eternity by trusting in Jesus Christ’s sacrifice on the cross for the forgiveness of your sins, including homosexual sins. If you talk with my travel assistant that the story called “Lucien,” you will find I spent a great deal of time sharing scientific information on the desirability of abandoning homosexual intercourse, and I shared the Gospel of Jesus Christ with him in great detail.</em></span> </li></ul><p>(The naked self-aggrandizement reflected in this man's comparison of himself to Jesus Christ and to John the Baptist disinvites comment, other than to shed light on the psychology of this man's massively overinflated ego and grandiose self-image.)<br /><br />Now isn’t that special? Rekers wasonly interested in trying to “witness” to the rent boy!<br /><br />This is horribly reminiscent of the fate of the erstwhile poster boy for the “ex-gay” movement, <strong>John Paulk</strong>, who worked for the FRC opposing homosexuality until he was photographed by a gay rights activist desperately trying to leave a gay pickup bar (Pete’s) on DuPont Circle without being identified. Paulk had been there for more than an hour, chatting up another gay male patron and asking for sex before the activist arrived with his camera. When questioned by his FRC handlers about his dalliance at this watering hole, Paulk first claimed that he had needed to use the men’s room. When it was pointed out to him that there were any number of rest rooms he could have used at other establishments much more conveniently located, Paulk changed his story and claimed that he was merely “curious” about the “lifestyle” which he had supposedly left, years ago. </p><p>This was too much even for an organization as bigoted and as despicable as the FRC to stomach, and Paulk was thrown out in disgrace, neck and crop, losing his job with the FRC and fading into ignominious obscurity.<br /><br />When all is said and done, what emerges from this sorry imbroglio is a portrait of a self-hating closet case who is prepared to go to any lengths, regardless of the extent to which he insults the intelligence of his handlers at the NARTH and the FRC, to lie, obfuscate, and disguise the fact that he hired this young man (whose endowment was prominently advertised on the web site in question) for the purposes of having, and enjoying, gay sex – period.<br /><br />The only speculation still worth addressing is whether this man, who is utterly bereft of any redeeming social value, engaged in any other sexual activities with "Lucien" (who, for legal reasons, may be holding back on the specifics), and if so, whether he was the "top" or the "bottom" in this pathetic relationship. And the only sympathy worth bestowing on anybody in this matter should be reserved for this young man, who had to shut up and pleasure this disgusting piece of slime for 10 whole days and nights.<br /><br /><br /><span style="font-family:courier new;"><strong>PHILIP CHANDLER</strong></span></p>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-83408130128193579862009-04-20T23:35:00.005+01:002009-04-21T12:31:55.180+01:00Gay Marriage and Religious Freedom -- Why the emphasis on male homosexuality?<div align="justify"> </div><div align="justify">An excellent article published in the <strong><em>New York Post</em></strong> on 20 April 2009 correctly observes that the vast majority of homophobes are obsessed not with lesbian sex, but with sex between men. In fact, many of the hardest-core homophobes secretly fantasize about lesbian sex; this is something that is all too well known to purveyors of heterosexual pornography, who take full advantage of the male preoccupation with the sexual activity of lesbians, and who crank out countless heterosexual porno movies depicting two or more women “getting it on” with each other.</div><div align="justify"><br />As a group, heterosexual women tend to be much more accepting of both male and female homosexuality than are men. Some women actually enjoy watching gay men kiss and cuddle.</div><div align="justify"><br />It is the image of two <strong><em>men</em></strong> having sex that turns so many otherwise reasonable men (in particular) into irrational bigots, who parlay their hatred of this image into political capital and who then seek to hide their hatred of such imagery behind laws prohibiting gay persons from marrying. Not long ago, such laws also prohibited gay persons from having sex, even in the privacy of their own bedrooms. No less an entity than the US Supreme Court fell victim to this mode of regressive analysis when it handed down the obscene decision of <strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986). The Court veered into flat-out nastiness when it ignored the due process challenge to the Georgia “sodomy” statute filed by a heterosexual couple, and concentrated only on the due process challenge filed by Michael Hardwick – the gay man who was arrested (but ultimately not prosecuted) when the police, admitted into his home in error by a houseguest, entered his bedroom and found him having consensual oral sex with another man. The Court went so far as to state that it expressed no opinion as to the constitutionality of the Georgia sodomy statute as applied to married couples, and then focused, obsessively, on this statute as applied to gay men. (The majority opinion crudely declared that “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.”) The Court repeatedly referred to “homosexual sodomy” (not gay sex, as later opinions have framed this issue).</div><div align="justify"><br />In 2003, the US Supreme Court, realizing that it had perpetrated a gross and continuing injustice against gay persons, expressly and bluntly overruled <strong><em>Bowers</em></strong>, in <strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003). The US Supreme Court almost never directly overrules itself, usually preferring to ignore cases with which it no longer agrees, and opening up new lines of constitutional analysis that undermine the analysis undergirding the old decision, <em>sub silentio</em>. Back in 1996, the Court handed down <strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996), in which decision the court invoked an equal protection analysis to strike down an amendment to the Colorado state constitution (known as “Amendment 2”) that effectively robbed gay persons in that state of the right to petition their legislature, at all levels of state government, for protection from discrimination, in both the public and private sectors. Many constitutional scholars believed that the Romer Court had intentionally and carefully undermined <strong><em>Bowers</em></strong> by 1) invoking the Equal Protection Clause of the Fourteenth Amendment to strike down Amendment 2, thereby completely ignoring the due process analysis it had used in Bowers to mock and belittle Michael Hardwick's assertion of a right to sexual privacy, and by 2) failing to so much as even mention Bowers, despite the fact that <strong><em>Bowers</em></strong> was the most prominent case dealing with the rights of gay Americans.</div><div align="justify"><br />The lower courts noted that the US Supreme Court had effectively crippled <strong><em>Bowers</em></strong> – the US Court of Appeals for the Seventh Circuit, in <strong><em>Nabozny v. Podlesny</em></strong>, 92 F.3d 446 (1996), noted that “Of course <strong><em>Bowers</em></strong> will soon be eclipsed in the area of equal protection by the Supreme Court’s holding in <strong><em>Romer v. Evans</em></strong>... <strong><em>Romer</em></strong>, which was decided following the oral argument in this case, struck down on equal protection grounds a Colorado constitutional amendment that discriminated against homosexuals. Although <strong><em>Romer</em></strong> bolsters our analysis in this case to some extent, we do not rely on it.”</div><div align="justify"><br />When the Court handed down <strong><em>Lawrence</em></strong>, it employed entirely different language and an entirely different tone, noting at the outset that “[this] statement [about “homosexual sodomy”], we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in <strong><em>Bowers</em></strong> was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in <strong><em>Bowers</em></strong> and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”</div><div align="justify"><br />The <strong><em>Lawrence</em></strong> Court then went on to overrule <strong><em>Bowers</em></strong>, bluntly declaring that “<strong><em>Bowers</em></strong> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <strong><em>Bowers v. Hardwick</em></strong> should be and now is overruled.”</div><div align="justify"><br />When this statement was read out by Associate Justice Kennedy (who delivered the majority opinion from the bench), many gay spectators, some of whom had slept outside the US Supreme Court building all night so as to improve their chances of being seated, silently but openly wept...</div><div align="justify"><br />The <strong><em>Lawrence</em></strong> majority conceded that it could have decided <strong><em>Lawrence</em></strong> by relying entirely on an equal protection analysis, but concluded that this would not have gone <em>far enough</em>. They wanted to ensure that anti-gay sex statutes would not be redrafted in such a manner as to apply to both gay and heterosexual couples, which would have preserved them from facial equal protection challenges and which would have made it necessary for gay plaintiffs to advance a "disparate impact" argument. This is indeed startling, in that the doctrine of avoidance counsels all Article III courts to decide cases before them on the narrowest possible grounds, and not to reach constitutional issues that do not have to be reached in order to resolve the instant case. This is closely related to the concept of measured constitutional steps; courts of equity generally decide cases as narrowly as possible, and defer questions of constitutional interpretation only to those cases that absolutely require such adjudication.</div><div align="justify"><br />Associate Justice Sandra Day O'Connor wrote a separate concurrence in <strong><em>Lawrence</em></strong>, arguing that an equal protection analysis would have been better suited to <strong><em>Lawrence</em></strong>; however, five of her colleagues insisted on striking the Texas sodomy statute (and, by extension, all other such statutes nationwide) by invoking the Due Process Clause of the Fourteenth Amendment. O'Connor noted that evenhanded enforcement of a facially neutral sodomy statute would not long be tolerated by a democratic society (heterosexual men and women would not take kindly to being arrested and convicted for engaging in oral sex), and also implied that uneven enforcement of a facially neutral sodomy statute would permit gay plaintiffs to advance a disparate impact analysis; however, her colleagues on the bench were determined to drive a stake through the heart of all such statutes.<br /><br />Judges sitting on the lower courts took note not just of the fact that <strong><em>Bowers</em></strong> had been overruled, but also of the tone employed by the US Supreme Court in <strong><em>Lawrence</em></strong>. The US Court of Appeals for the Seventh Circuit – considered by legal observers to be a conservative and scholarly appellate court – upheld the incest convictions of a brother and sister who had married each other (see <strong><em>Muth v. Frank</em></strong>, 412 F.3d 808 (7th Cir. 2005)), declining to extend the reach of <strong><em>Lawrence</em></strong> to cover and protect consensual adult incest (thereby dismissing Associate Justice Antonin Scalia’s rabid and embittered dissent in <strong><em>Lawrence</em></strong>, in which dissent Scalia had predicted that laws against incest would be vulnerable to constitutional attack). Although he agreed with his two colleagues on the three-judge panel that handed down <strong><em>Muth</em></strong>, Judge Evans refused to sign their opinion, stating that:</div><div align="justify"><br />“As I read the majority opinion, I sense a certain degree of unease, even disdain, for the majority opinion in <strong><em>Lawrence</em></strong>. The citations to Justice Scalia’s dissent in <strong><em>Lawrence</em></strong>, I submit, are unnecessary. I also don’t care for the repetitive (seven mentions in Part B) paraphrasings of the Texas law (which prohibited “engaging in consensual sexual activity with a person of the same sex”) as a law prohibiting “homosexual sodomy.” I realize that term is used twice in the majority opinion in <strong><em>Lawrence</em></strong>, but I think its use is ill-advised and outdated as well. As I see it, the term “homosexual sodomy” is pejorative. It should be scrubbed from court decisions in the future. For these reasons, I join the judgment of the court without embracing certain aspects of the majority opinion.”</div><div align="justify"><br />Again and again, we see that objections to gay sex (and gay marriage) almost invariably focus on gay <strong><em>men</em></strong>, as opposed to lesbians (I do not trivialize the abuse and cruelty heaped on lesbians by making this observation; in the 1990s, a lesbian woman named Sharon Bottoms lost custody of her son when a Virginia state court judge declared her to be an "unconvicted felon"). It is the thought of two <strong><em>men</em></strong> having sex that disturbs so many heterosexual men; more specifically, it is the thought of one man penetrating another that drives these people crazy.</div><div align="justify"><br />The <strong><em>New York Post</em></strong> article touches upon this relatively one-sided hatred, but does not adequately explain it.</div><div align="justify"><br />The bottom line is that we still live in a society in which gender roles and stereotypes are enforced, sometimes violently. In the eyes of homophobic heterosexual men, gay men are “sex traitors” who betray the masculine ideal by doing the one thing that men are never “supposed” to do – that is, letting other men penetrate them.</div><div align="justify"><br />That is the rub. Sadly, this form of gender stereotyping exists even in the gay male community; I know several gay men who refuse to “bottom” on the grounds that this is “the woman’s position”. This is, in and of itself, a form of homophobia, internalized by those who express it. Such men also rob themselves of sexual experiences that are without question extremely pleasurable to the majority of gay men...</div><div align="justify"><br />The <strong><em>New York Post</em></strong> article was eloquent and succinct when it declared that Christians will be required to surrender absolutely nothing once gay marriage becomes legal nationwide. Christians will remain free to teach their children that gay sex is evil, should they so desire. Churches will remain free to refuse to marry gay couples should such marriages fall afoul of their religious tenets. Other churches do recognize gay marriage, and will doubtless officiate at many millions of gay marriage ceremonies in years to come. Nobody will be prosecuted for preaching that gay people are evil and depraved. The US Supreme Court, in <strong><em>Brandenburg v. Ohio</em></strong>, 395 U.S. 444 (1969) made it very clear that even advocacy to break the law – even advocacy of terrorism – is protected by the First Amendment. Only when such advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” does it no longer enjoy First Amendment protection.</div><div align="justify"><br />But back to the article – I am truly amazed that the <strong><em>New York Post</em></strong> (which has a reputation for rabid homophobia) published this piece. Clearly, the message is getting through. Maggie Gallagher has not had it easy as of late – her disastrous Presidency of the “<strong>National Organization for Marriage</strong>” has collapsed in shambles amidst snickers and guffaws of laughter over the comical video “<strong>The Gathering Storm</strong>”. Instead of being taken seriously by those to whom this video was targeted, it has spawned countless parodies. It is, in and of itself, a parody of the fears of those who oppose gay marriage – although it certainly was not intended to be a parody! At the cost of about $1.5 million, this video ranks as one of the most amusing – and abject – <strong><em>failures</em></strong> of propaganda ever launched. Joseph Goebbels would have been better able to stir up fear and resentment than were the brain-dead actors who participated in this mockery.</div><div align="justify"><br />Five or 10 years from now, when gay marriage is legal throughout the nation, I believe that these actors will look back on their “contribution” to the discourse, and literally hang their heads in shame.</div><div align="justify"></div><div align="justify"><br />PHILIP CHANDLER</div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com1tag:blogger.com,1999:blog-6705590065739638649.post-2413204580015873892009-04-20T04:19:00.001+01:002009-04-20T11:24:02.597+01:00The Gathering Storm......<div align="justify"><strong><span style="font-size:130%;"></span></strong></div><div align="justify"><strong><span style="font-size:130%;">THE GATHERING STORM</span></strong></div><div align="justify"><strong><span style="font-size:130%;"></span></strong> </div><div align="justify"></div><div align="justify">On April 3, 2009, the Iowa Supreme Court handed down a unanimous decision (<strong><em>Varnum v. Brien</em></strong>, 07-1499) holding that the prohibition of gay marriage violated the equal protection guarantees of the Iowa State Constitution. This decision has been hailed as a model of clarity; the fact that it was also unanimous has gone a long way towards discrediting the notion that an “activist” court “found” a right to gay marriage that does not exist in the state constitution. In addition, the court held that gay persons comprise a “quasi-suspect” class for the purpose of state equal protection analysis, and that any law discriminating against gay persons much be subjected to “quasi-strict” scrutiny (or intermediate-level review). Quasi-strict scrutiny requires that any law impacting the group in question (in this case, gay persons) must be demonstrated, by the state, to be substantially related to an important government objective. This court followed the examples set by the state high courts of Massachusetts, California, and Connecticut in finding that the respective state constitutions prohibited the denial of marriage to gay couples (sadly, the California decision was reversed in November by a state constitutional amendment). Shortly after this decision was handed down, Vermont became the first state in the nation to legalize gay marriage as a result of legislative action (as opposed to prompting by a state high court); the state legislature of Vermont voted, overwhelmingly, to legalize gay marriage, overriding the Republican governor’s veto in the process.</div><div align="justify"><br />The states of Maine and New Hampshire are currently debating this issue, and it is clear to thinking persons that it is now only a matter of time before activists for marriage equality succeed in extending equal marriage rights to gay persons in other states. Other states where gay marriage is expected to be recognized in the near future include New York and New Mexico; New York governor David Patterson has just introduced a bill that would legalize gay marriage in that state. In addition, the District Council in Washington, DC voted to recognize the validity of gay marriages entered into in those jurisdictions where gay marriage is legal; this means that a gay couple who marry in Connecticut will be recognized as married should they move to Washington, DC.</div><div align="justify"><br />In response to this movement in the direction of marriage equality, those men and women who continue to argue that gay persons should not be permitted to marry have formed an organization named the “<strong>National Organization for Marriage</strong>” (a truly bizarre misnomer, given the fact that this organization’s remit is to <strong><em>prevent</em></strong> gay persons from marrying in those states where gay marriage is not yet recognized). Maggie Gallagher – a right-wing shill who has attacked gay marriage for many years now – sits as the President of this organization, which recently produced an advertisement named “<strong>The Gathering Storm</strong>”. This advertisement has been screened throughout New England (where gay rights activists are expending considerable energy in their campaign to legalize gay marriage), in the hope of swaying members of the public to pressure their elected representatives to vote against gay marriage.</div><div align="justify"><br />What is remarkable about this advertisement is its comical, over-the-top, desperate atmosphere. Instead of presenting the viewers with a sober assessment of the state of gay marriage at the present time, this advertisement literally shows lightning strikes in the background and massive purple clouds brewing in the sky, as ham actors, pretending to be members of the public, talk about how “afraid” they are of gay marriage, and about how their personal and private lives have been ruined as a direct result of the legalization of gay marriage! This advertisement is actually funny – which it most certainly was not intended to be by those who produced it! Even more amusing is the fact that this advertisement cost about $1.5 million to produce! Those viewers who have seen this advertisement on YouTube (where it has been featured for several days now) overwhelmingly mock, belittle, and laugh at this production. A quick sampling of the comments posted on YouTube reveal that at least 80% of the comments ridicule and denigrate this advertisement – surely not something that Maggie Gallagher and her cohorts intended! As if this weren’t bad enough, numerous spoofs of this advertisement have been produced on YouTube – spoofs that have literally caused activists for marriage equality to roll around on the floor with laughter!</div><div align="justify"><br />Frank Rich, writing in the <strong><em>New York Times</em></strong>, has pointed out that this advertisement represents the best and only effort of those who continue to oppose gay marriage; while Gallagher and her cronies try to attack gay couples with this inane joke, the mainstream media have pretty much ignored the developments in Iowa and Vermont, barely mentioning them in network newscasts. Those references to gay marriage that have been made by the mainstream media have largely been neutral, or even positive, in their description of these developments. A large number of actors have produced their own spoofs of “<strong>The Gathering Storm</strong>”, literally smothering this pathetic attempt at stoking the flames of bigotry and hatred with a blanket of cackling laughter.</div><div align="justify"><br />What is truly amazing about this advertisement is the fact that the "<strong>National Organization for Marriage</strong>" paid such a massive sum of money to produce such a ludicrous and amusing spectacle.</div><div align="justify"><br /><em>Maggie, Maggie, what has become of you?</em></div><em><div align="justify"><br /></em>As Frank Rich pointed out, this is truly “<strong>The Bigots Last Hurrah</strong>”. Rich notes that support for gay marriage and opposition to gay marriage are both largely generational – and it is the older generation that opposes gay marriage. Population dynamics make it clear that the number of supporters will continue to rise, just as the number of opponents will continue to fall. Put bluntly, older people die, whereas younger people grow up and replace older people, carrying forward their more enlightened attitudes and convictions.</div><div align="justify"><br />The movie “<strong>Searching for Bobby Fischer</strong>” contained a scene that is emblematic of the current state of gay marriage in the US. The protagonist, Joshua Waitzkin, plays against another child prodigy towards the end of the movie. Several moves deep into the game, Joshua’s opponent makes a fatal mistake, which is obvious only to those grandmasters who possess sufficient knowledge and insight into the game to appreciate the nature of this player’s mistake. Joshua spots the mistake, and offers his opponent a draw, telling him “You’ve already lost. You just don’t know it yet.”</div><div align="justify"><br />And so it is for the "<strong>National Organization for Marriage</strong>".</div><div align="justify"><br />The game is over. All that remains to be seen is whether those who continue to oppose gay marriage will insist on dragging their defeat and humiliation out for as long as possible, or whether they will acknowledge that they are beaten, and climb on board. All signs now are that the more intelligent and well-connected members of the right (including ex Presidential hopeful John McCain’s chief strategist) have already seen the end coming, and have decided to climb on board.</div><div align="justify"><br />Let us behave with a degree of class that they have not shown, and sincerely welcome them.</div><div align="justify"></div><div align="justify"><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-10620004748075800452009-03-06T15:40:00.004+00:002009-03-07T02:34:07.192+00:00Loving the "sinner" whilst hating the "sin"...<div align="justify"><span style="font-family:verdana;">When I last posted on a religious "Christian" thread at </span><a href="http://www.virtueonline.org/"><span style="font-family:verdana;">www.virtueonline.org</span></a><span style="font-family:verdana;">, my messages were deleted almost as fast as I could post them. This speaks volumes as to the willingness of the owner of that particular Web site to entertain ideas that run contrary to his particular worldview. I maintain my own blog, and have <strong><em>never</em></strong> deleted a message posted by any reader, because I believe that the free flow of information and ideas is central to the concept of civilized debate and discussion. However, some people have no hesitation in employing the gag and the jackboot whenever anybody posts messages that challenge their viewpoints.</span></div><div align="justify"><span style="font-family:Verdana;"></span><br /><span style="font-family:verdana;">One of the arguments made most frequently by homophobic bigots – particularly those who adduce their religious beliefs as justification for their special brand of hatred and obtuse morality – is that these people “love the sinner” whilst “hating the sin”. Given the depressing frequency with which this tired, trite, and hackneyed justification for cruelty, abuse, and moral condemnation is invoked, it is appropriate to examine the logical and semantic underpinnings behind this fallacious line of thinking.</span></div><div align="justify"><br /><span style="font-family:verdana;">Sexual orientation is not a matter of conscious moral choice, and it takes a special brand of wilful blindness to reach conclusions to the contrary. The <strong>American Psychiatric Association</strong> (<strong>APA</strong>) dropped homosexuality from the “<strong>Diagnostic and Statistical Manual of Mental Disorders</strong>” (<strong>DSM</strong>) back in 1973. This official position was later endorsed by the <strong>American Psychological Association</strong>, the <strong>Canadian Psychological Association</strong>, the <strong>Canadian Psychiatric Association</strong>, the <strong>American Medical Association</strong>, the <strong>World Health Organization</strong>, the <strong>American Academy of Pediatrics</strong>, the <strong>American Counselling Association,</strong> the <strong>American Association of School Administrators</strong>, the <strong>American Federation of Teachers</strong>, the <strong>American School Health Association</strong>, the Interfaith <strong>Alliance Foundation</strong>, the <strong>National Association of School Psychologists</strong>, the <strong>National Association of Social Workers</strong>, the <strong>National Education Association</strong>, and numerous other professional bodies. In response to this inconvenient truth, the hard right now asserts that the American Psychiatric Association was “forced” to drop homosexuality from the list of mental disorders by “militant homosexual activists” (I am always amazed to discover the full extent of the unbridled power that I possess, as a gay man). The cold truth remains that homosexuality was never reinstated as a mental disorder, notwithstanding the fact that the DSM has been revised and augmented extensively since the decision to declassify homosexuality as a mental disorder was made 36 years ago, and notwithstanding the efforts of a small but rabid minority of psychiatrists, psychologists, and other mental health professionals to remedicalize and recriminalize homosexuality.</span></div><div align="justify"><br /><span style="font-family:verdana;">Although some theologians and right-wing commentators maintain a distinction between homosexual sexual orientation and the physical expression of that orientation (homosexual conduct), this is, in the last analysis, a distinction without a practical difference. The so-called “sin” and the so-called “sinner” are inextricably intertwined; the so-called “sin” is a reflection of an <strong><em>aspect of personhood</em></strong> of the so-called “sinner” – entirely different from consciously chosen preferences, such as a person’s taste in clothing, food, or automobiles. Although many black Americans decry and resent comparisons between race and sexual orientation, the fact that these people dislike the comparison in no way renders it logically unavailing. Blaming a gay person for that person’s expression of his or her identity is morally obtuse, and does violence to notions of substantive fairness. Prominent psychologists, psychiatrists, and mental health professionals have concluded, almost without exception, that most gay men and lesbians are as well-adjusted and as emotionally healthy as are most heterosexuals. To the extent that gay people suffer increased rates of depression (and other emotional disorders), these problems are in fact reflections of the appalling abuse, mistreatment, and hostility directed towards gay people by American society.</span></div><div align="justify"><br /><span style="font-family:verdana;">Telling a gay person that one “loves the sinner” whilst “hating the sin” is analogous to telling a black person that one loves that person but hates the fact that he or she is black. Another pertinent analogy that has been invoked by scientists in the field of psychological assessment involves laterality; just as about 10% of the male population is left-handed, about 10% of men are predominantly or exclusively homosexual. The data pertaining to lesbians are not as clear-cut; many researchers have concluded that female sexuality is less clearly differentiated than male sexuality, and that female human sexuality is more fluid and malleable than male human sexuality.</span></div><div align="justify"><br /><span style="font-family:verdana;">The term “sexual preference” is a misnomer, and should be avoided when discussing the rights of gay people; this term implies that gay people consciously and deliberately <strong><em>choose</em></strong> with whom to fall in love, and that gay people <strong><em>choose</em></strong> to have sexual and emotional relationships with members of the same sex.</span></div><div align="justify"><br /><span style="font-family:verdana;">What is particularly disgusting and depressing about the attitude of homophobes is their tendency to reduce the complexities of gay relationships to the sum of a number of sex acts. Gay people are no less capable than heterosexual people of feeling love and emotional attachment – yet homophobes utterly dismiss the expression of such emotions, emphasizing only the sexual aspect of gay relationships. The “<strong>Family Research Council</strong>” (<strong>FRC</strong>) is notorious for this tendency – some time ago, the FRC referred to Elizabeth Birch’s companion as her “sex partner” when commenting on the fact that Birch and her lover had adopted a child (Birch is a prominent gay rights attorney). This crude form of biological reductionism is both insulting and dehumanizing. The Nazis invoked precisely this technique in the early stages of the Holocaust, dismissing Jewish people (as well as gay people, Gypsies, and political prisoners) as “untermensche” (lower forms of human life). By invoking this paradigm, the Nazis found it easier to insult, abuse, and ultimately attempt to exterminate an entire class of persons.</span></div><div align="justify"><span style="font-family:Verdana;"></span><br /><span style="font-family:verdana;">While the writer does not accuse homophobes of genocide (at the present time), it bears noting that no less a figure than Associate Justice Antonin Scalia – known for the contempt that he displays towards gay Americans – went so far as to complain about the homosexual “problem” in the State of Colorado (his dissent in <strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996) invoked standard and all too well known stereotypes about gay people). Scalia launched into a particularly ugly and vitriolic diatribe, the first sentence of which, through the choice of words employed, had many people wondering what could possibly have possessed him to allude (consciously or unconsciously) to the autobiography of a well-known German national, written several decades ago, in which the author described his <em>kampf</em> ("The Court has mistaken a <em>Kulturkampf</em> for a fit of spite...."). (Although Scalia was ostensibly referring to the influence of the Roman Catholic Church and German policies in relation to secularity enacted from 1871 to 1878 by Otto von Bismarck (Chancellor of the German Empire), the word "<em>Kulturkampf</em>" (literally meaning "culture struggle") has other connotations, and it is impossible for the writer to conclude that Scalia (whose tool, as a federal judge sitting on the highest court in the land, is the written word) did not understand or anticipate these connotations, particularly in view of the stereotypes and naked generalizations in which he indulged in the text that immediately followed his invocation of this term.)</span></div><div align="justify"><span style="font-family:Verdana;"></span><br /><span style="font-family:verdana;">Scalia worked himself up into a state of frenzy, accusing the Court of placing the prestige of that institution behind the proposition that "opposition to homosexuality is as reprehensible as racial or religious bias." In passages eerily reminiscent of writings and speeches all too well known to this world, Scalia inveighed against the homosexual "problem" faced by the citizens of Colorado, noting that gay men and lesbians tended "to reside in disproportionate numbers in certain communities", where they possessed "political power much greater than their numbers, both locally and statewide". He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay men and lesbians, and railed against the fact that gay men and lesbians "care about homosexual rights issues much more ardently than the public at large", claiming that the perceived tendency on the part of gay Coloradans to invoke the democratic process more readily and with more vigor than their heterosexual counterparts constituted a distortion of that process in and of itself. (Does any of this sound depressingly familiar?) One wonders how it could have escaped Scalia's attention that, in a country where people vote their policy preferences into law under a "one man, one vote" system, members of any particular group of citizens can never, by definition, possess "disproportionate" political power, unless members of other groups of citizens choose to abdicate their own power. One also wonders whether Scalia would ever care to apply a similar analysis to the behavior of fundamentalist Christians, who certainly care about their issues (e.g., forcing mandatory school prayer down the throats of the rest of us, outlawing reproductive freedom for women) "much more ardently than the public at large". Perhaps one can be forgiven for harboring some degree of cynicism towards this analysis, given the selectivity of its application and the transparency of its logic.</span></div><div align="justify"><span style="font-family:Verdana;"></span><br /><span style="font-family:verdana;">Circuit Judge Stephen Reinhardt, sitting on the US Court of Appeals for the Ninth Circuit, eloquently exposed the false and discriminatory nature of the status versus conduct distinction as this distinction pertains to gay persons serving in the armed forces, in his dissent in <strong><em>Holmes v. California Army National Guard</em></strong>, 124 F.3d 1126 (1997). Reinhardt noted that:</span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">_______________________________________</span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><br /><span style="font-family:verdana;">“[…] the fact that conduct may be banned does not mean that speech may be also. Certainly, an admission of prohibited conduct, although speech, is an admission of an offense and may serve as the basis for discipline. However, admitting that one is homosexual is not admitting to an offense under the newly crafted and somewhat schizoid "Don't Ask, Don't Tell" policy. For, under that policy, homosexual status – being a homosexual – is not an offense. To the contrary, the military now purports to welcome into the service individuals who are homosexuals – but only so long as they don't engage in homosexual conduct. <strong><em>This might appropriately be analogized to welcoming Jews to be a part of society so long as they do not attend synagogue or pray publicly or privately to God.</em></strong> Nevertheless, it is the policy that the President and the Congress in their collective wisdom have agreed upon.</span></div><div align="justify"><br /><span style="font-family:verdana;">“The proponents of the status / conduct distinction seem to believe that classifications such as homosexual and heterosexual are based on something other than sexual conduct, perhaps one's taste in art, music, literature, dress, or the pursuit of a particular, if indefinable, "life-style." <strong><em>This argument confuses cause and effect. What makes a person a homosexual, or a heterosexual, is the abiding desire to engage in sexual conduct with persons of the same sex, or persons of the opposite sex.</em></strong> It is no secret, even to federal judges, that the sexual drive is a strong one. Sex is the elementary form of human activity and expression, and it provides the basis for the most important of human relationships, rivaled only by that of parent and child. It also provides the basis for distinguishing homosexuals from heterosexuals.</span></div><div align="justify"><br /><span style="font-family:verdana;">“The complications regarding sexual preferences involve questions such as whether one is born with a particular orientation or acquires it, and whether one may constitutionally be forced to lead a sexless life in order to serve one's country as a member of the military. Most persons are born with a particular sexual preference and in the vast majority of cases, it is heterosexual; a minority is born with homosexual preferences. In some cases, it may not be so clear what one's preferences are; in some cases there may be ambivalence; in some a preference for both sexes; and in some a complete lack of interest in sexual conduct. (The latter would appear to be the smallest group.) <strong><em>But the idea that persons should be compelled to surrender entirely the right to engage in sexual conduct if they wish to serve in the armed forces would seem to me clearly to conflict with the Constitution and in particular with substantive due process.</em></strong> Nevertheless, as I have acknowledged, that is not the current state of the law and I am bound to follow a view contrary to my own, pending a repudiation of <strong><em>Bowers</em></strong> by the Court or its issuance of an opinion construing <strong><em>Bowers</em></strong> to mean something other than what its authors intended.” [emphasis added]</span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">_____________________________________</span></div><div align="justify"><br /><span style="font-family:verdana;">(Fortunately, the obscene decision to which Reinhardt referred throughout his dissent (<strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986)) was explicitly and bluntly overruled by the US Supreme Court in <strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003). This reflects a sea change in the manner in which the federal judiciary treats gay Americans; <strong><em>Bowers</em></strong> upheld anti-gay state “sodomy” statutes, which were challenged as being violative of the substantive component of the Fourteenth Amendment’s Due Process Clause. The <strong><em>Lawrence</em></strong> Court implicitly apologized to the gay community for the manner in which it had demeaned and insulted gay Americans in <strong><em>Bowers</em></strong>, acknowledging that it had framed the constitutional issue at stake in that case far too narrowly. In overturning <strong><em>Bowers</em></strong>, the Court acknowledged that gay persons have every right to sexual privacy, and that the government has no business interfering with that right. The US Courts of Appeals for the First and Ninth Circuits recently analyzed <strong><em>Lawrence</em></strong> and concluded that the right to intimate sexual conduct between members of the same sex is afforded substantial constitutional protection by <strong><em>Lawrence</em></strong>, of a much higher order than that associated with traditional rational basis review.)</span></div><div align="justify"><br /><span style="font-family:verdana;">The lies told about gay people are particularly ugly. There is no truth whatsoever to the old canard that gay men were abused in childhood, or that overly dominant mothers are “responsible” for the sexual orientation of gay sons. These old “blame the mother” lies were bandied about up until the 1970s, when mental health professionals acknowledged that such theories were, for want of a better description, fanciful inventions. If overly protective mothers are responsible for male homosexuality, the percentage of the male population that is exclusively or predominantly gay would be much higher than current estimates (which range from 2% to 10%, depending on the manner in which homosexual orientation is defined and measured).</span></div><div align="justify"><br /><span style="font-family:verdana;">Social and cultural conservatives make much of the fact that the origins of homosexual sexual orientation have not yet been <strong><em>proved</em></strong> to have their roots in biology or genetics. Because no definitive proof has yet been adduced to the effect that homosexuality is biologically or genetically “hard-wired”, it must be assumed (according to this line of reasoning) that homosexuality is chosen. The logical fallacy undergirding such thinking is so egregious as to disinvite comment. Many human characteristics that were once assumed to have no basis in biology or genetics (laterality is once again a good example) are now known to have a biological basis. The frontal lobes of the human brain mediate psychological and behavioural attributes such as creativity, impulse control, the exercise of moral judgment, the sequencing of appropriate behavior, and social interaction. The fact that this was neither known nor understood prior to the second half of the 20th century does not rob current understanding of brain organization of its legitimacy, just as the fact that penicillin was not known to have antibiotic properties prior to the second half of the 20th century does not rob current understanding of the antibiotic properties of this drug of its legitimacy. It is entirely possible, if not probable, that male homosexuality has a strong genetic component; the fact that this component has not yet been identified definitively does <strong><em>not</em></strong> foreclose the future identification of a genetic basis of this phenomenon.</span></div><div align="justify"><br /><span style="font-family:verdana;">Indeed, the research data that does exist strongly supports the hypothesis that male homosexuality has a genetic component. The most compelling evidence of this component exists in the form of twin studies; in such studies, the sexual orientations of identical twins are compared, and the concordance rates for homosexuality in cotwin pairs are contrasted with those in fraternal twins and non-twin siblings. Psychologists <strong>Bailey and Pillard</strong> (of Northwestern University, Illinois) conducted such a study in 1991, and concluded that the concordance rate for homosexuality in monozygotic cotwins was 52%, as opposed to 22% of dizygotic (fraternal) cotwins, and 11% in adoptive brothers (the concordance rate for nontwin siblings was only 9.2%). These highly respected researchers, known for their caution in interpreting such contentious data, concluded that “[h]eritabilities were substantial under a wide range of assumptions about the population base rate of homosexuality and ascertainment bias.” (In other words, they concluded that there is strong evidence that male homosexuality is at least in part genetically determined, regardless of cultural bias and difficulties in determining the relative size of the gay male population.) The results of this study were written up in the highly regarded, peer-reviewed journal “<strong><em>Archives of General Psychiatry</em></strong>” (March 1993). <strong>Bailey and Pillard</strong> then studied lesbian twins and siblings, and obtained strikingly similar results, further reinforcing their conclusions.</span></div><div align="justify"><br /><span style="font-family:verdana;">Even more dramatic results were obtained in a 1952 study by <strong><em>Franz Kallman</em></strong>, who reported that 100% of the identical twins in his study were concordant for homosexual sexual orientation (in other words, the identical twin of every gay subject in his study was also gay). Differences between the <strong>Kallman</strong> data and the <strong>Bailey and Pillard</strong> data may well have been artifacts relating to the manner in which homosexual sexual orientation was assessed across the two studies, or artifacts relating to the manner in which subjects were selected across these studies.</span></div><div align="justify"><br /><span style="font-family:verdana;">These two studies are by no means the only studies that have examined sexual orientation as a function of genetics. <strong>Bailey</strong> conducted a larger study involving 5,000 subjects selected from the Australian Twin Registry, and arrived at similar results. In short, strong evidence exists to support the theory that gay sexual orientation is at least partially genetic in its origins.</span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:Verdana;"></span><br /><span style="font-family:verdana;">(Whether or not gay people should have to prove that homosexuality is not a matter of conscious moral choice is another issue. Certainly, it has been established that race and ethnicity are fimly rooted in genetics and biology – but this has in no way diminished the extent and depth of racism and ethnic stereotyping in American society. Should gay persons succeed in proving the existence of a genetic component to homosexuality, it is entirely possible – if not probable – that the hard right will announce that the "etiology" of homosexuality has been discovered, and that attempts will then be made to remedicalize and recriminalize homosexuality. Furthermore, religion is clearly a chosen behavior; yet religious belief is granted substantial constitutional protection by our political system, notwithstanding the fact that religious beliefs are chosen.)</span></div><div align="justify"><br /><span style="font-family:verdana;">Homophobes who adduce their religious beliefs as justification for their abusive, cruel, and discriminatory attempts to deprive gay Americans of the rights and privileges that they take for granted fly in the face of venerated constitutional principles such as the equal protection of the laws, and the wall of separation between church and state.</span></div><div align="justify"><br /><span style="font-family:verdana;">We do <strong><em>not</em></strong> live in a theocracy. We live in a constitutional democracy, in which the rights of minorities are protected by irrepealable constitutional law. Attempts to circumvent the law by making reference to religious dogma have no place in a society in which the liberty interests of all citizens are protected by such law. The US Supreme Court recognized this fundamental truth in <strong><em>Lawrence</em></strong> (supra), holding that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom”.</span></div><div align="justify"><br /><span style="font-family:verdana;">Long may those words stand for the proposition that religious bigotry cannot, and will not, undergird law and public policy in a free society.<br /></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"></div><div align="justify"><br /><span style="font-family:verdana;font-size:130%;"><strong>PHILIP CHANDLER</strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-91879165048289311492009-03-06T15:26:00.013+00:002009-03-07T02:55:02.482+00:00Mormons Meddle and Destroy Marriage...<div align="justify"><span style="font-family:verdana;">Almost four of every five dollars contributed to the campaign to eliminate gay marriage in the State of California was sent into this campaign from Mormons based in Utah. In total, the Church of Jesus Christ of Latter-day Saints (LDS) contributed more than 19 million dollars to this campaign. A prominent blogger summed up the actions of the Mormons with the following observation: "They just took marriage away from 20,000 couples and made their children bastards.”</span></div><div align="justify"><br /><span style="font-family:verdana;">Now the LDS has the effrontery – the unmitigated gall – to call upon the gay community for "healing" and “respect” following passage of Proposition 8 in California. Hell will freeze over before this happens.</span></div><div align="justify"><br /><span style="font-family:verdana;">Consider the following:</span></div><div align="justify"><br /><span style="font-family:verdana;">On May 15, 2008, the California Supreme Court handed down its decision in in <strong><em>re Marriage Cases</em></strong>, S147999. The court refused to stay its decision until the November 2008 elections, and this decision took effect on June 16, 2008. In this decision, the state high court held that all classifications on the basis of sexual orientation are "suspect," and mandated that gay persons be able to marry their spouses on the same terms as applies to heterosexual persons. Tens of thousands of gay couples obtained marriage licenses and were married before the elections of November 4, 2008. Because California has no residency requirement for marriage, and does not require that marriages performed in California be valid in the home states of non-residents, many couples travelled to California to exchange and solemnize their vows. Proposition 8 was enacted by a narrow margin of about 52% to 48%, and has the effect of overriding the state high court’s decision, thus prohibiting the recognition of gay marriages in the State of California.</span></div><div align="justify"><br /><span style="font-family:verdana;">California continues to offer “domestic partnerships” to gay couples; these partnerships are similar to “civil unions” offered by states such as Vermont and New Jersey, and grant to same-sex couples all of the state-level rights and privileges of marriage, in areas such as inheritance, insurance, state income tax, hospital visitation rights, etc.</span></div><div align="justify"><br /><span style="font-family:verdana;">Neither gay marriages nor domestic partnerships offer to gay couples the roughly 1,138 rights and benefits afforded heterosexual married couples under federal law, due to the restrictions on gay marriage imposed by the so-called “<strong>Defense of Marriage Act</strong>” (<strong>DOMA</strong>) of 1996. This measure prohibits the treatment of gay relationships as marriages for any purpose by the US federal government, even if such relationships are concluded or recognized as marriages by one or more of the states.</span></div><div align="justify"><br /><span style="font-family:verdana;">Some explanation of legal concepts is required in order to understand the meaning of the state high court’s determination.</span></div><div align="justify"><br /><span style="font-family:verdana;">Ordinarily, a statute that creates a classification (e.g., a statute that creates different classes of people, such as a statute that defines and provides for the punishment of murderers) enjoys the presumption of constitutionality. This is so because we live in a constitutional democracy. The courts generally accept the proposition that even improvident decisions will eventually be rectified by the democratic process. However, some forms of discrimination are so invidious and so destructive that any statute that creates classifications of this type (so-called “suspect” classifications) is subjected to "strict scrutiny." Strict scrutiny turns the presumption of constitutionality on its head – under this standard of review, a statute is presumed to be <strong><em>unconstitutional</em></strong> until the state proves, beyond a reasonable doubt, that the statute is <strong><em>not</em></strong> unconstitutional. Statutes that create racial classifications are the most well known statutes that proceed along suspect lines. It is widely recognized and understood that race is a characteristic that bears no relationship to the ability of people to contribute to society. Furthermore, racial minorities have been subjected to a long history of purposeful discrimination, and racial minorities have suffered a history of relative political powerlessness. This discrimination is triggered by a characteristic that is “immutable” (a person’s race cannot be changed).</span></div><div align="justify"><br /><span style="font-family:verdana;">Not all suspect classes involve “immutable” characteristics. The US Supreme Court recognizes four classifications that are suspect – race, alienage, national origin, and religion. Clearly, religion is not immutable; people can and do convert from one religion to another. Alienage is also a characteristic that can be changed; a resident alien can become a US citizen, and under some circumstances, a US citizen may surrender his or her citizenship and become an alien. Any classification that proceeds along suspect lines is presumed to be unconstitutional; when the state defends a statute that proceeds along suspect lines or that infringes on a “fundamental” constitutional right, the burden falls on the state to prove that such statutes serve a "compelling state interest" and that such statutes are "narrowly tailored" so as to promote that interest in the “least restrictive” manner possible (in terms of infringing on the rights of the group in question). Stated differently, the statute must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote the interest in question. The California Supreme Court recognizes additional suspect classes – sex has long been considered by the California state courts to be a suspect classification, and in handing down <strong><em>in re Marriage Cases</em></strong>, supra, the state supreme court held that classifications on the basis of sexual orientation are also suspect. Furthermore, any statute that infringes a "fundamental right" is automatically subjected to strict scrutiny, regardless of whether the group impacted by the statute in question is considered to be a suspect class. For example, a statute that infringes on First Amendment rights is a statute that infringes on a fundamental right; it will be subjected to strict scrutiny regardless of whether or not the group impacted by the statute in question comprises a suspect class (see <strong><em>Chicago v. Morales</em></strong>, 527 U.S. 41 (1999), in which case the US Supreme Court invalidated Chicago’s “Gang Congregation Ordinance,” declaring this ordinance to be facially unconstitutional).</span></div><div align="justify"><br /><span style="font-family:verdana;">(A state supreme court, interpreting a state constitution, can grant to its citizens rights over and above the rights recognized in federal equal protection jurisprudence; this is a bedrock principle in our system of judicial federalism. Thus, although the US Supreme Court has been very reluctant to expand the number of classifications considered to be suspect, many state supreme courts have adduced additional suspect classes. The California Supreme Court, for example, considers sex to be a suspect classification, whereas the US Supreme Court still considers sex to be only a "quasi-suspect" classification. Under California case law, a statute will only survive strict scrutiny if the state proves that the statute promotes a compelling state interest and is necessary for the promotion of that state interest. A quasi-suspect classification is subjected to a slightly less demanding standard of review than strict scrutiny, referred to as "quasi-strict scrutiny." Under this standard of judicial review, the burden is again placed on the state, which must prove that the statute in question promotes an important state interest and is substantially related to the promotion of that interest. In <strong><em>Frontiero v. Richardson</em></strong>, 411 U.S. 677 (1973), the US Supreme Court articulated this standard of review as applied to statutes that classify on the basis of sex. The Court reformulated this standard of review in <strong><em>United States v. Virginia</em></strong>, 518 U.S. 515 (1996), holding that classifications on the basis of sex can only be sustained in the presence of an "exceedingly persuasive justification.”)</span></div><div align="justify"><br /><span style="font-family:verdana;">The California Supreme Court became the second state appellate court to conclude that classifications on the basis of sexual orientation are suspect (the Hawaii Supreme Court declared such classifications to be suspect in <strong><em>Baehr v. Miike</em></strong>, 87 Haw. 34, 950 P.2d 1234 (1997), noting that the framers of the state constitution in 1978 had expressly intended that a proscription against sexual orientation discrimination be subsumed under the textual proscription against discrimination on the basis of sex). The California Supreme Court is perhaps the most influential of the state high courts, and this court’s holding that sexual orientation is a suspect classification was not overturned by Proposition 8, and cannot be overturned by any act of the people or of the legislature.</span></div><div align="justify"><br /><span style="font-family:verdana;">In finding that the California state constitution grants to gay persons the same right to marry as that which is enjoyed by heterosexuals, the court held 1) that sexual orientation is a suspect classification, and 2) that marriage is a fundamental right. Sexual orientation bears no relationship to the ability of persons to contribute to society. Furthermore, gay persons have suffered a history of invidious discrimination based on their sexual orientation, and it is beyond doubt that sexual orientation is either immutable, or changeable only at unacceptable personal cost to members of the class in question. Notwithstanding the ugly and impassioned rant of US Supreme Court Justice Antonin Scalia in his dissent in <strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996) (in which dissent Scalia inveighed against the homosexual “problem” in the State of Colorado, asserting that gay persons possess “political power much greater than their numbers, both locally and statewide” and that gay persons possess “enormous influence in American media and politics”), gay persons are also relatively politically powerless. There are only two openly gay members of Congress; there has never been an openly gay person serving in a cabinet-level position; there has never been an openly gay person sitting on the US Supreme Court or on any of the US Courts of Appeals; and passage of Proposition 8 reveals, chillingly, that even with the support of Hollywood celebrities such as Brad Pitt, Angelina Jolie, and Steven Spielberg, gay persons cannot protect even a right so basic as their right to marry in what many analysts consider to be the most liberal state in the country.</span></div><div align="justify"><br /><span style="font-family:verdana;">Proposition 8 therefore serves to strip a suspect class of a fundamental right – something that is utterly impermissible under both due process jurisprudence and equal protection jurisprudence. It is bad enough that Proposition 8 strips an identifiable group of a fundamental right; here, the constitutional infirmity is compounded by the fact that the group so deprived also constitutes a suspect class. Regardless of the emotions involved, and regardless of whether or not jurists accept the morality of gay marriage, it is crucial to bear in mind at all times that, from a legal standpoint, Proposition 8 is no different from a measure that selectively withdraws the right to marry from black people only, or from Catholics only. Were any measures to be passed that strip the right to marry from either of these groups, there would quite understandably be widespread public outrage.</span></div><div align="justify"><br /><span style="font-family:verdana;">Any attempt to enforce Proposition 8 must be, and will be, met with unwavering resistance by the gay and lesbian community, both in California and across the nation. This measure will not be permitted to become law without vigorous opposition. At the time of writing, the mayor of San Francisco continues to issue marriage licenses to gay couples who wish to marry. The state Attorney General, Jerry Brown, insists that existing gay marriages will remain legal, and is also seeking that the state high court find Proposition 8 to be unconstitutional. Three lawsuits have already been filed in California state court, seeking a writ of mandate to enjoin enforcement of Proposition 8 and to instruct the state to continue to issue marriage licenses to gay couples until a full trial on the merits can be held to determine whether or not Proposition 8 is constitutional. These lawsuits assert that Proposition 8 works a profound change to the state constitution, striking at the heart of the equal protection provisions mandated by that constitution; if such a change is to be countenanced at all, it must be undertaken pursuant to the more deliberative constitutional revision process articulated in Article VXIII of the state constitution, which requires more than a mere majority of votes and which requires ratification by the state legislature. The brief submitted by the petitioners seeking a writ of mandate from the California Supreme Court is analytically brilliant, and the writer is hopeful that this brief will succeed in convincing the California Supreme Court that Proposition 8 was enacted in violation of Article XVIII of the California state constitution. The chief argument raised by the petitioners is that Proposition 8 works a change to the California constitution so fundamental as to require the more deliberative approach specified by Article XVIII. Specifically, Proposition 8 deprives one, and only one, class of Californians of a right deemed by the courts to be "fundamental". Furthermore, Proposition 8 proceeds along facially suspect lines. In short, Proposition 8 attempts to deprive a suspect class of a fundamental right, in violation of the underlying principles of due process and equality enshrined in the California state constitution. If left to stand, the amendment of the state constitution by Proposition 8 could be followed by subsequent amendments to the state constitution withdrawing additional fundamental rights from a suspect class in piecemeal fashion – turning the principle of equal protection on its head. The petitioners cited Pastor Niemoller's famous quote: "In Germany, they first came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me – and by that time no one was left to speak up." If left to stand, Proposition 8 would make it possible for other fundamental rights to be withdrawn from gay persons, or from members of any other group identified along suspect lines. By eliminating the requirement of equal protection from such a minority, Proposition 8 would remove an essential structural check on the exercise of majoritarian power. Had Proposition 8 sought to ban all marriages in the State of California, principles of equal protection would not have been offended; however, the selective identification of a group along suspect lines, followed by the withdrawal from that group of a fundamental right, is inconsistent with the constitution's mandate of equal protection. The petitioners cited <strong><em>Romer v. Evans</em></strong>, supra (in which the US Supreme Court invalidated a Colorado state constitutional amendment singling out gay persons and depriving them of protection from discrimination at all levels, in both the public and the private sectors) as authority for their position. When <strong><em>Romer</em></strong> was handed down in 1996, gay persons had not been identified as a suspect class by any state or federal appellate court; now, gay persons are considered to be a suspect class as a matter of law in the States of California and Hawaii. (Gay persons are considered to be a quasi-suspect class by the Connecticut Supreme Court, which handed down a decision legalizing gay marriage in that state on October 28, 2008 (<strong><em>Kerrigan v. Commissioner of Public Health</em></strong>, SC17716)).</span></div><div align="justify"><br /><span style="font-family:verdana;">Constitutional </span><span style="font-family:verdana;">amendments imply "...an addition or changes within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." This cannot be said of Proposition 8, which strikes at the heart of equal protection and which, if allowed to stand, would strip the state courts of their crucial role in preserving the rights of disfavored minorities. Changing the bedrock foundations of the state constitution must be done through the revision process, not the amendment process. In previous cases where the California Supreme Court has affirmed the modification of the constitution through the amendment process at the ballot, the substance of these amendments has never targeted a suspect class, or attempted to withdraw from that class a fundamental right. There is a profound difference between a measure intended to deprive all Californians of the right to marriage, and a measure intended to deprive only Catholics or Moslems of the right to marriage. Sexual orientation has been placed on the same plane as race and religion for the purposes of state equal protection analysis, rendering the deprivation of the right to marry from this group analogous to the deprivation of the right to marry from only Catholics, or only Moslems. It is the responsibility of the judiciary to enforce such principles as equal protection of the laws. The importance of the courts, in terms of their role in enforcing such principles, cannot be overstated. Proposition 8 would strike at heart of the courts' ability to exercise their essential constitutional authority to protect minorities from overreaching by majorities. While the legislature may, under some circumstances, eliminate a right for all Californians, it may not deprive a particular disfavored group, and only that particular group, of a fundamental right. Furthermore, Proposition 8 would also strike at the separation of powers doctrine, which requires that the courts employ heightened scrutiny under such circumstances. The key analogy drawn by the plaintiffs demonstrates just how pernicious this measure would be were it to be allowed to operate. Substitute black persons for gay persons, and you would again have a measure that infringes a fundamental constitutional right and that proceeds along suspect lines. Such a measure would never be permitted to take effect following the constitutional amendment procedure; if allowed to take effect at all (which is highly improbable), it could only do so following the deliberative process involved in a constitutional revision. For the purposes of illustration, this analogy is flawless. Both sex and race are suspect classes in California state constitutional jurisprudence, and the withdrawal of marriage from black persons is analogous to the withdrawal of marriage from gay persons. Classifications premised on sexual orientation are suspect, just as classifications premised on race are suspect. There is no hierarchy of suspectness; a suspect class is a suspect class. No suspect class is "more suspect" than any other suspect class. Thus, Proposition 8 is as offensive as would be a similar measure that singled out black people and prevented them from marrying. To take effect, such a measure would have to flow from the deliberative process associated with constitutional revisions, not from the simple majoritarian vote required for constitutional amendments (even then, such a measure would almost certainly run afoul of equal protection considerations). If one such measure, eliminating a fundamental right as enjoyed by a suspect class, is permitted to stand, then additional measures that strip away fundamental rights from this class must necessarily be permitted to stand. This would lead the state down the road identified by Pastor Niemoller in his prescient and poetic observation. Granting the writ of mandate would not have a deleterious impact on the status quo; to the contrary, it would permit the continued enjoyment of the right to marry by both gay and heterosexual couples. The state would suffer no irreparable harm should the court grant the writ. Heterosexual couples would remain free to marry should the court grant the writ. Conversely, failure to issue the writ would work irreparable harm on gay couples seeking marriage licenses. It is unfortunate that this issue has been tossed back to the state supreme court. Should the court agree that the amendment violates the procedure established by Article XVIII for constitutional revisions, we can expect loud and indignant braying from religious and social conservatives, and we will doubtless have to suffer outraged, sputtering accusations alleging interference with "the will of the people". What these persons fail to grasp is the fact that it is the <strong><em>duty</em></strong> of the courts to protect suspect classes with special vigilance. Should the court grant the writ, we will almost certainly prevail should the hard right attempt to ram this change through by using the constitutional revision process (which requires approval by a supermajority of the state legislature before the matter can proceed). This is therefore a crucial legal battle.</span></div><div align="justify"><br /><span style="font-family:verdana;">The LDS pumped literally millions of dollars into the State of California in support of Proposition 8. Leaders of the LDS now call upon the gay community to begin the healing process. The audacity of this demand is beyond belief. This religious sect reached out and tampered with the fundamental right of gay persons to marry in another state – now, this religious sect calls upon the victims of this political meddling to make peace with those who worked this injustice on the gay community and inscribed naked discrimination into the highest law of the state.</span></div><div align="justify"><br /><span style="font-family:verdana;">Some members of the LDS refer to gay people as "sore losers". The irony here is that the Mormons have been the target of invidious discrimination on several fronts (including marriage) in their history. Now they stand front and center in their attack on a group of law-abiding citizens who have done absolutely nothing to harm them – and they call on members of this group to accept this result and to "begin the healing process". I do not speak for the entire gay community – but I know that I speak for a sizeable number of gay persons when I tell leaders of this religion that we will be back, just two years from now, with another ballot initiative to restore the right to marry to gay Californians. There is precious little room in my heart for healing or forgiveness of those who forced their religious views upon our community. I will not roll over and accept such shabby treatment from any religious sect that does not appreciate and abide by the concept of separation of church and state.</span></div><div align="justify"><br /><span style="font-family:verdana;">They can rot.</span></div><div align="justify"><br /><span style="font-family:verdana;">Already, gay rights groups are calling for a boycott of Utah. This state’s tourism industry, and the star-studded Sundance Film Festival, are being targeted for a boycott by bloggers, gay rights activists, and others seeking to punish the Mormon Church for its aggressive promotion of California's ban on gay marriage. Tourism brings in six billion dollars annually, with world-class skiing, a spectacular red rock country, and the film festival founded by Robert Redford, among other popular tourist venues. The LDS encouraged its members to press for the passage of Proposition 8 by volunteering both time and money for the campaign. Thousands of Mormons worked as grass-roots volunteers, bringing in a total of almost 20 million dollars. Polls show that Proposition 8 was failing until the Mormons stepped in with their money and political clout. Outspoken blogger and gay rights activist, John Aravosis, did not mince words with the following declaration: "The main focus is going to be going after the Utah brand. At this point, honestly, we're going to destroy the Utah brand. It is a hate state."</span></div><div align="justify"><br /><span style="font-family:verdana;">This </span><span style="font-family:verdana;">may sound like an idle, or impotent, threat – but Aravosis is known for leading a successful and dramatic campaign against Dr. Laura Schlessinger’s TV show following her intemperate and ugly comments about gay Americans, and against Ford and Microsoft for their positions on gay rights. The Los Angeles Gay and Lesbian Center has mounted an effort to overturn Proposition 8, sending a postcard to the Mormon church president with each contribution made. Aravosis considers California to be the victim, and the Mormons to be the persecutors. Protests and rallies continue to take place in California, notwithstanding passage of the amendment; many gay activists insist that demonstrations will continue until Proposition 8 is overturned.</span></div><div align="justify"><br /><span style="font-family:verdana;">"We </span><span style="font-family:verdana;">had won this until they swept in. ... We need to send a message to Utah that they need to stop trying to inflict their way of life on every other state,” Aravosis asserts.</span></div><div align="justify"><br /><span style="font-family:verdana;">To Aravosis – long life, and success!</span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"> </div><div align="justify"><br /><a name="_MailAutoSig"><span style="font-family:verdana;font-size:130%;">PHILIP CHANDLER</span> </span></div></a>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-78064161673042203542009-03-06T08:25:00.011+00:002009-03-06T13:18:42.578+00:00Victory in Connecticut!<div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">On Friday, October 10, 2008, the Connecticut Supreme Court issued an analytically rich, eloquent, intricate, and detailed opinion (<em><strong>Kerrigan v. Commissioner of Public Health</strong></em>, Docket No. SC17716) holding that the prohibition of gay marriage violates the equal protection provisions of the state constitution. It should be noted at the outset that this court interpreted the <em><strong>state</strong></em> constitution, not the US Constitution; this is crucial, insofar as a state supreme court opinion resting entirely on state constitutional considerations may not be reviewed or reversed by the US Supreme Court (this is a well established principle of our judicial federalism).<br /><br />What follows is a detailed analysis of the state high court decision, rendering this post lengthy and somewhat technical.<br /><br />In reaching the conclusion that the prohibition of gay marriage violated the equal protection clause, the state supreme court held that gay men and lesbians constitute a "quasi-suspect class" for the purposes of equal protection analysis. The court followed principles outlined in a landmark case (<em><strong>State v. Geisler</strong></em>, 222 Con. 672, 685, 610 A.2d 1225 (1992)) to construe the contours of the state constitution, examining 1) the text of the constitutional provisions at issue, 2) holdings and dicta of the State Supreme Court and of the Appellate Court, 3) persuasive and relevant federal precedent, 4) persuasive and relevant sister state court decisions, 5) the history of the operative constitutional provisions, including debates of the framers, and 6) contemporary economic and sociological considerations.<br /><br />The term “suspect class” is employed by jurists to describe classes of persons entitled to a heightened level of protection when challenging a statute (or other form of legislative enactment) or executive policy on constitutional grounds. The Fourteenth Amendment was one of three Amendments enacted in the wake of the Civil War; this Amendment was crafted shortly after the Civil War ended. Section 1 of the Fourteenth Amendment includes three Clauses: the <em><strong>Due Process Clause</strong></em>, the <em><strong>Equal Protection Clause</strong></em>, and the <em><strong>Privileges or Immunities Clause</strong></em>. The Equal Protection Clause mandates that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” The framers of the Equal Protection Clause wished to stamp out the invidious forms of racial discrimination that remained following the abolition of slavery; this context must be considered when adjudicating challenges to legislation on equal protection grounds. The Connecticut state constitution contains a similar guarantee, codified at article first, Section 1 (“All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”) and at article first, Section 20 (as amended by article 5 and article 21) (“No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”).<br /><br />In federal constitutional jurisprudence, the gravamen of an equal protection challenge almost always lies in the assertion that two groups of people who are similarly situated in relation to the challenged legislation are treated differently, with resultant adverse impact to members of one of the groups in question (see <em><strong>Heller v. Doe</strong></em>, 509 U.S. 312 (1993)). In the majority of cases dealing with social and economic legislation, the federal courts apply the “rational basis” standard of review. With the exception of statutes that infringe on “fundamental” constitutional rights, and statutes that create “suspect” or “quasi-suspect” classifications, statutes generally enjoy the presumption of constitutionality (a statute is presumed to be constitutional until it is proved to be unconstitutional beyond a reasonable doubt (<em><strong>State v. McKenzie-Adams</strong></em>, 281 Con. 486, 500, 915 A.2d 822 (2007))). The rational basis standard of review is consistent with the presumption of constitutionality. When this standard is applied, the burden falls squarely on the plaintiff, who must demonstrate that the statute in question is <em><strong>not</strong></em> rationally related to a legitimate state interest. This standard of review has been referred to as a “paradigm of judicial restraint” (see <em><strong>FCC v. Beach Communications, Inc.</strong></em>, 508 U.S. 307 (1993)) due to its highly deferential nature. Provided the state can posit a rational relationship to a legitimate state interest, the statute will be sustained in the face of constitutional attack. The reviewing court can reach out, independently, and posit even <em>post hoc</em> justifications for the challenged statute.<br /><br />This standard of review is not completely toothless, however. In <em><strong>City of Cleburne, Texas v. Cleburne Living Ctr., Inc.</strong></em>., 473 U.S. 432 (1985), the Court struck down the City Council’s refusal to issue a “special use” permit to a home for mentally retarded, holding that there was no rational basis for requiring this permit, and noting that the City Council’s requirement of a “special use” permit appeared to rest on “irrational prejudice” against the mentally retarded.<br /><br />In <em><strong>United States Dept. of Agriculture v. Moreno</strong></em>, 413 U.S. 528 (1973), the Court struck down a prohibition against granting food stamps to any household containing an individual who is unrelated to any other household member (this measure was intended to discourage "hippies" from forming communal living relationships). In this decision, the Court held that “a bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”<br /><br />In <em><strong>Romer v. Evans</strong></em>, 517 U.S. 620 (1996), the US Supreme Court struck down an amendment (“Amendment 2”) to the Colorado state constitution that “fenced out” gay men and lesbians, and withdrew from this class of persons, and this class of persons alone, the right to petition the state legislature for redress of grievances (Amendment 2 repealed existing anti-discrimination ordinances to the extent that they protected gay people from discrimination at the hands of heterosexual people, and forbad the future enactment of any such measures). Although the Court employed language typically associated with traditional rational basis review, a three-judge panel of the US Court of Appeals for the Ninth Circuit recently noted that the Court appeared to have applied a much higher standard of review (see <em><strong>Witt v. Department of the Air Force</strong></em>, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Several prominent jurists have made the same observation. Regardless of the level of scrutiny actually employed, the <em><strong>Romer</strong></em> Court cited <em><strong>Moreno</strong></em> with approval, holding that Amendment 2 was so broad in its scope as to give rise, inevitably, to the inference that this measure was intended to reflect “animus” towards gay persons. The Court reiterated its holding that a bare desire to inflict harm upon members of a politically unpopular group can <em><strong>never</strong></em> constitute a legitimate state interest, striking down Amendment 2 in a 6 -- 3 opinion that was laced with strong and stark language.<br /><br />The Connecticut Supreme Court first determined, as a matter of law, that “civil unions” (which were created by the state legislature in 2005) are <em><strong>not</strong></em> the legal equivalent of marriages, holding that this statutory arrangement singled out gay relationships and implicitly relegated them to an inferior status, “in essence, declaring them to be unworthy of the institution of marriage.” Gay activists have repeatedly maintained that this is indeed so – while civil unions may grant to gay couples all of the substantive benefits and protections of heterosexual marriage, “the message [sent by the legislature] is that what same-sex couples have is not as important as or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage.” The court agreed with the plaintiffs that “[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage <em><strong>is</strong></em> the constitutional infirmity at issue.” The court compared civil unions to the “separate but equal” doctrine that animated the education of black versus white schoolchildren prior to the US Supreme Court’s landmark decision in <em><strong>Brown v. Board of Education of Topeka</strong></em>, 347 U.S. 483 (1954), and rejected the contention that civil unions are the constitutional equivalent of marriage (whilst recognizing the “truly laudable” efforts of the state legislature to grant gay couples the substantive rights of marriage).<br /><br />The court then articulated a precept that is fundamental to our system of judicial federalism – that it is “beyond debate that federal constitutional law...establishes a <em><strong>minimum</strong></em> national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” [emphasis added]. In short, the US Constitution sets a floor, but not a ceiling, to the exercise of individual rights; many state constitutions are more generous, either by their terms or as construed by state high courts, than is the US Constitution in terms of affording their respective citizens the exercise of individual rights. The court referenced several cases in which the Connecticut constitution had been interpreted as being more generous than the US Constitution in terms of granting Connecticut citizens individual rights (e.g., <em><strong>State v. Morales</strong></em>, 232 Conn. 707, 716, 657 A.2d 585 (1995); <em><strong>Ramos v. Vernon</strong></em>, 254 Conn. 799, 827, 761 A.2d 705 (2000)). The court made it clear that in the light of this principle, there may be times when the court will employ the same analytical approach as that adopted by the federal courts, but yield entirely different results. Furthermore, in tones that would cause ultra-conservative jurists such as US Supreme Court Associate Justices Antonin Scalia and Clarence Thomas to suffer from attacks of dyspepsia and apoplexy, the court held that “[it] must <em><strong>interpret</strong></em> the [state] constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may lose its original meaning” [emphasis added] and that the state constitution is “…intended to endure for ages to come…and, consequently, to be adapted to the various crises of human affairs” (cited from <em><strong>McCulloch v. Maryland</strong></em>, 17 U.S. 316 (1819)). The court expanded on this, holding that “the Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of [its] citizens” (cited from <em><strong>State v. Dukes</strong></em>, 209 Conn. 98, 114-15, 547 A.2d 10 (1988)).<br /><br />The Connecticut Supreme Court first concluded that gay persons in committed relationships who wished to marry are “similarly situated” to heterosexual persons in committed relationships who wished to marry, thereby granting gay persons the requisite standing to mount an equal protection challenge to the prohibition of gay marriages. In a footnote that captured the essence of the constitutional challenge (see footnote 15), the court asserted that “[its members] know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives” (cited from R. Dworkin, “<strong>Three Questions for America</strong>,” N.Y. Review of Books, September 21, 2006, pp. 24, 30).<br /><br />Having established that gay couples may mount a cognizable equal protection challenge to the prohibition of gay marriages, the court discussed the standard of review that should be applied to the challenged legislation. As mentioned above, statutes that neither burden a “fundamental” constitutional right nor draw “suspect” classifications will be sustained, provided the state (or the reviewing court) posits a legitimate state interest and provided the legislation in question is rationally related to the promotion of that interest. However, any statute that draws a “suspect” or "quasi-suspect" classification, or that infringes a “fundamental” right, will be subjected to “strict scrutiny.”<br /><br />Strict scrutiny is a much more searching level of judicial review than rational basis review. When a reviewing court subjects challenged legislation to strict scrutiny, the presumption of constitutionality ceases to exist; in fact, the statute in question is presumed to be <em><strong>unconstitutional</strong></em> until and unless the state proves, beyond a reasonable doubt, that the legislation in question is <em><strong>not</strong></em> unconstitutional. The burden shifts from the plaintiff to the state, which has to prove that the statute in question promotes a “compelling state interest,” and that the statute in question is “narrowly tailored” so as to promote that interest in the least restrictive manner possible (insofar as the statute burdens the suspect class or infringes on a fundamental right). That is to say, the statute in question must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote that compelling state interest. This standard of review stands in stark contrast to the deferential rational basis standard, and it is therefore crucial to limit application of this standard to those circumstances which are consonant with the intent of the framers of the respective constitutions. Some constitutional scholars take an extreme position, and argue that this standard of review should only be applied (in equal protection challenges) when the legislation creates a racial classification. While this position is consistent with the observation that the Equal Protection Clause of the Fourteenth Amendment was framed in the immediate aftermath of the Civil War, it should always be kept in mind that the framers of this Clause made it clear that they intended this Clause to afford protection to other minorities too. Furthermore, the text of the Equal Protection Clause contains no limitations; this Clause affords the equal protection of the laws to <em><strong>all</strong></em> persons (no state “shall deny to <em><strong>any</strong></em> person within its jurisdiction the equal protection of the laws” [emphasis added]).<br /><br />The US Supreme Court has recognized three suspect classifications – race, national origin, and alienage (<em><strong>Heller</strong></em>, supra). It is important to note that the manner in which equal protection challenges are adjudicated (including the standards of review that are applicable) is not prescribed by the US Constitution, and that the US Constitution does not specifically identify suspect classifications or suspect classes (a suspect class is the class drawn by a suspect classification). The Connecticut constitution, on the other hand, identifies eight inherently suspect classifications set forth in article first, Section 20 (as amended) (religion, race, color, ancestry, national origin, sex, physical disability, and mental disability). Because members of these classes have been deemed to be “especially subject to discrimination,” their rights “are protected by requiring encroachment on [those] rights to pass a strict scrutiny test.”<br /><br />In addition to the rational basis standard and the strict scrutiny standard, the US Supreme Court has recognized the existence of an intermediate level of scrutiny that lies between the extremes of rational basis review and strict scrutiny (see <em><strong>Clark v. Jeter</strong></em>, 486 U.S. 456 (1988)). This standard of review, referred to as “quasi-strict scrutiny” or “intermediate level scrutiny,” has been reserved by the US Supreme Court for classifications on the basis of sex and classifications on the basis of illegitimacy. Such classifications are referred to as “quasi-suspect” classifications. Such classifications may be sustained only if the state demonstrates that the challenged legislation promotes an <em><strong>important</strong></em> state interest and is <em><strong>substantially related to</strong></em> the promotion of that interest (see <em><strong>Frontiero v. Richardson</strong></em>, 411 U.S. 677 (1973)). More recently, the US Supreme Court reformulated this standard of review by holding that, in the context of gender discrimination, the classification may only be sustained in the face of an “<em><strong>exceedingly persuasive justification</strong></em>” (see <em><strong>United States v. Virginia</strong></em>, 518 U.S. 515 (1996)). The Court further held that the justification in question “must be genuine, not hypothesized or invented post hoc in response to litigation…and it must not rely upon overbroad generalizations about the different talents, capacities, or preferences of males and females.” Under quasi-strict scrutiny, the burden again falls on the state to demonstrate that the legislation in question meets these criteria.<br /><br />The state argued that because article first, section 20 (as amended) of the state constitution expressly prohibits discrimination against eight enumerated classes, and because sexual orientation is not one of the eight enumerated classes, no other group is entitled to heightened protection under the equal protection provisions of the state constitution. The court rejected this assertion, because it is inconsistent with case law in which the court has expressed approval of the three-tiered methodology traditionally employed for the purposes of the equal protection provisions of the state constitution (e.g., <em><strong>Carofano v. Bridgeport</strong></em>, 196 Conn. 623, 495 A.2d 1011 (1985); <em><strong>Keogh v. Bridgeport</strong></em>, 187 Conn. 53, 66-67, 444 A.2d 225 (1982)). The court also held that, although the omission of sexual orientation from the list of classifications enumerated by article first, section 20 (as amended) is a relevant consideration, it is not dispositive of the issue. The court reflected on the history surrounding the adoption of this section of the state constitution, noting that its drafters intended that provision to embody “the very strongest human rights principle that this convention can put forth to the people of Connecticut,” and concluding that, in accordance with that purpose, that provision should be read expansively. The court emphatically rejected the proposition that the language of the constitution limited new rights, noting that “rights of individuals have developed and have changed from time to time” (citing from remarks of former US Representative Chase Going Woodhouse). The court also asserted that, even if it were to assume, arguendo, that the groups enumerated in article first, section 20 (as amended) were intended to constitute an exhaustive list of suspect classes, the plaintiffs would not be barred from recognition as a quasi-suspect class, because these two classes are distinct and separate from one another. Of great significance was the observation that, under the state’s view, “only those classes that have marshalled the political will and popular support to secure a constitutional amendment in their favor” would be recognized as a suspect class – a result totally inconsistent with the rationale underlying both state and federal equal protection considerations.<br /><br />The court then turned to an examination of the criteria that must be considered in determining whether recognition as a quasi-suspect class is warranted. The court noted that the US Supreme Court has consistently identified two factors that must be met, for the purpose of the federal constitution, in determining whether recognition as a quasi-suspect class is warranted. These factors are 1) the group has suffered a history of invidious discrimination, and 2) the characteristics that distinguish the group’s members must bear “no relation to their ability to perform or contribute to society” (see <em><strong>United States v. Virginia</strong></em>, supra; <em><strong>Frontiero v. Richardson</strong></em>, supra; <em><strong>Massachusetts Board of Retirement v. Murgia</strong></em>, 427 U.S. 327 (1976)). The US Supreme Court has also cited two other factors that may, on a case by case basis, be relevant to determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny. These additional two considerations are 1) the characteristic that defines the members of the class as a discrete group must be immutable or otherwise not within their control; and 2) the group is a minority, or is politically powerless (see <em><strong>Lyng v. Castillo</strong></em>, 477 U.S. 635 (1986); <em><strong>Bowen v. Gilliard</strong></em>, 483 U.S. 587 (1987)).<br /><br />The state court noted that both state and federal courts have generally applied the same criteria to determine whether a classification is suspect, quasi-suspect, or neither. The court concluded that the factors that determine whether a group should be accorded heightened scrutiny under the federal constitution closely correlate with the factors that determine whether a group should be accorded heightened scrutiny for the purposes of the state constitution. The court noted that the US Supreme Court has placed far greater weight on the first two factors (a history of discrimination based on a characteristic that bears no relation to the ability of members of the group to contribute to society) than on the remaining two factors. For this reason, classifications on the basis of race and sex have been accorded strict scrutiny and quasi-strict scrutiny respectively, whereas classifications on the basis of age and disability have not been accorded heightened scrutiny (the latter characteristics frequently bear upon the ability of members of the class to contribute to society). The US Supreme Court has granted suspect class status to a group whose distinguishing characteristic is <em><strong>not</strong></em> immutable (resident aliens can become citizens, but are nevertheless considered to be a suspect class (see <em><strong>Nyquist v. Mauclet</strong></em>, 432 U.S. 1 (1977))), as well as to a group that is not a minority (women are actually a numerical majority in the US, but are nevertheless considered to be a quasi-suspect class). In addition, political power is not a characteristic that lends itself readily to objective assessment, making it extremely difficult for appellate courts generally to determine the extent of the political power of a group.<br /><br />The court held that the test of whether a group deserves suspect class status is too exacting to test whether a group deserves quasi-suspect class status; the factors that are weighed when determining whether a group should be accorded suspect class status should not be weighted to the same extent when determining whether a group should be accorded quasi-suspect class status. Nevertheless, the factors are similar in both instances.<br /><br />The court then turned to a crucial threshold examination – whether, as a matter of law, gay persons should be considered to be members of a quasi-suspect class. The court noted that “[g]ay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society.” The court also noted that “the characteristic that defines the members of this group – attraction to persons of the same sex – bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens.” Turning to the issue of immutability, the court held that “[b]ecause sexual orientation is such an essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so.” The court noted that gay people are certainly a minority, and that gay people have suffered “the enduring effects of centuries of legally sanctioned discrimination.” On this basis, the court held that laws singling gay people out for disparate treatment should be subjected to heightened judicial scrutiny.<br /><br />The court employed strong language and citations from numerous sources to make the point that gay persons have been tormented, abused, terrorized, and grossly mistreated, both by fellow citizens and by the state itself, agreeing with the assertion that “[o]utside of racial and religious minorities, we can think of no group that has suffered such pernicious and sustained hostility…as homosexuals” (cited from <em><strong>in re Marriage Cases</strong></em>, 43 Cal. 4th 841 (2008)). Significantly, the court adduced <em><strong>Bowers v. Hardwick</strong></em>, 478 U.S. 186 (1986) as an example of pernicious and invasive hostility directed towards gay persons less than 25 years ago by no less an entity than the US Supreme Court. Referring to the existence of sodomy statutes in 25 states at the time that <em><strong>Bowers</strong></em> was handed down, and 14 states by the time <em><strong>Bowers</strong></em> was expressly overruled by <em><strong>Lawrence v. Texas</strong></em>, 539 U.S. 558 (2003), the court held that it was beyond cavil that gay persons, as a group, met the requirement of a lengthy history of past (and ongoing) discrimination. Significantly, the state made no effort to rebut this assertion, agreeing with it from the outset.<br /><br />The state also agreed with the assertion that being gay in no way impairs the ability of individuals to contribute to society – an assertion vehemently protested by organizations such as the “<strong>American Family Association</strong>” (<strong>AFA</strong>) and the “<strong>Family Research Council</strong>” (<strong>FRC</strong>). The court again cited from numerous sources to make the point that gay persons are able to perform in, participate in, and contribute to society on the same terms as heterosexuals. Observing that the suspect classes of race, national origin, and alienage “are so seldom relevant to the achievement of any state interest that laws grounded on such considerations are deemed to reflect prejudice and antipathy,” the court held that this observation is no less applicable to gay persons.<br /><br />The court regarded as “highly significant” a number of important public policy considerations that treat gay persons similarly to heterosexual persons. For example, both gay and heterosexual persons are deemed to be capable of raising children, and may adopt children on the same terms. Discrimination on the basis of sexual orientation in employment, housing, state hiring practices, state licensing practices, the administration of state educational and vocational programs, state-administered benefit programs, and access to places of public accommodations is prohibited by state law. This reinforces the contention that gay persons are as capable of contributing to society as are heterosexual persons.<br /><br />The court then addressed the issue of whether sexual orientation is an “immutable” characteristic, and concluded that other courts in other jurisdictions had reached contrary conclusions with respect to this issue. The Connecticut Supreme Court concluded that sexual orientation is highly resistant to change, but further held that it was unnecessary to determine whether sexual orientation is an immutable characteristic to the same extent and degree that race, national origin, and gender are immutable characteristics, because even if sexual orientation is not immutable, the plaintiffs had established that they satisfied this consideration. The US Supreme Court has recognized that, because “the protected right of homosexual adults to engage in intimate, sexual conduct…[represents] <em><strong>an integral part of human freedom</strong></em>” (<em><strong>Lawrence</strong></em>, supra at pp. 576-7) [emphasis added], individual decisions by consenting adults concerning the intricacies of their physical relationships are entitled to constitutional protection. The court observed that sexual orientation is central to personality and is an integral part of one’s identity, rendering it entirely inappropriate to require a person to change, or repudiate, his or her sexual orientation in order to avoid discriminatory treatment. More specifically, the court held that gay persons are characterized by a “central, defining trait of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self” (cited from <em><strong>Jantz v. Muci</strong></em>, 759 F.Sup. 1543, 1548 (D. Kan. 1991)) (holding that “to discriminate against individuals who accept their given sexual orientation and refuse to alter that orientation to conform to societal norms does significant violence to a central and defining character of those individuals.”). Under this rubric, gay persons are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic.<br /><br />Continuing the inquiry (whether or not gay persons comprise a quasi-suspect or suspect class), the court examined the relative political power of gay persons, noting that a lack of political power is one of the indicia traditionally associated with members of suspect or quasi-suspect classes. In cases involving groups seeking heightened protection under the federal Equal Protection Clause, the US Supreme Court described this factor without reference to the minority status of the subject group, focusing instead on the group’s lack of political power (see, e.g., <em><strong>Massachusetts Board of Retirement v. Murgia</strong></em>, supra). In its most recent formulation of this test, the US Supreme Court has indicated that this factor is satisfied upon a showing either that the group is a minority or that it lacks political power (see <em><strong>Bowen v. Gilliard</strong></em>, supra). This test involves a determination of whether the group in question is a “discrete and insular minority,” (<em><strong>United States v. Carolene Products Co.</strong></em>, 304 U.S. 144 (1938)) or, if it is not a numerical minority, whether the group nonetheless is lacking in political power (see, e.g., <em><strong>Frontiero</strong></em>, supra, holding that women are a quasi-suspect class, notwithstanding the fact that women are not a minority).<br /><br />Gay persons unquestionably comprise a distinct minority of the population. Consequently, they satisfy the first prong of this disjunctive test and may thus be deemed to satisfy this prong of the suspectness inquiry on that basis alone. Ironically, opponents of granting equal rights to gay persons (in spheres as diverse as marriage equality, employment non-discrimination, and equal access to enrolment in the armed forces) frequently draw attention to studies that purport to show that gay persons comprise a ridiculously small minority (figures of less than one percent have been circulated by opponents of gay equality in an effort to marginalize the gay community and to portray the gay community as extremely small); in so doing, these opponents actually <em><strong>lend support</strong></em> to the classification of gay persons as a quasi-suspect or suspect class.<br /><br />The state argued that gay people should not be accorded suspect or quasi-suspect class status because they are not politically powerless. Because other courts have applied this component of the suspectness inquiry to deny gay persons heightened protection, despite the fact that they represent a minority of the population, the state supreme court considered this argument.<br /><br />The US Supreme Court has never defined “political powerlessness” as it is used in this context; in most cases, the US Supreme Court has merely made passing reference to this factor without actually analyzing it (see, e.g., <em><strong>Bowen v. Gilliard</strong></em>, supra). This factor has been described as “ill-defined” because of the lack of objective criteria and the reality that the extent to which a group lacks political power is not easy to ascertain.<br /><br />The state court looked to the US Supreme Courts quasi-suspectness jurisprudence for guidance. In <em><strong>Frontiero</strong></em>, supra, the US Supreme Court noted that sex is an immutable characteristic that frequently bears no relationship to ability to perform or contribute to society. Although significant advances had been made towards gender equality, “women still faced pervasive, although at times more subtle, discrimination in our educational institutions, in the job market, and perhaps most conspicuously, in the political arena” (Id., 686). The Court noted that Title VII of the Civil Rights Act of 1964 prohibited employers, labor unions, etc. from discriminating on the basis of sex, race, color, religion, or national origin. The Equal Pay Act of 1963 similarly provided that employers may not discriminate between employees on the basis of sex. Furthermore, section 1 of the Equal Rights Amendment (ERA), passed by Congress on March 22, 1972, and submitted to the state legislatures for ratification, declared that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The <em><strong>Frontiero</strong></em> Court held that, “when viewed in the abstract, women do not constitute a small and powerless minority.” Nevertheless, women were “vastly underrepresented in this nation’s decisionmaking councils.” Although women reasonably could not be described as politically powerless in the literal sense of that term, the court nevertheless concluded that women were entitled to enhanced judicial protection because the discrimination to which they had been historically been subjected was irrational and unlikely to be eliminated solely by the enactment of remedial legislation. Thus, heightened scrutiny of sex-based classifications was warranted because such classifications “are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations <em><strong>are deemed to reflect prejudice and antipathy</strong></em> and because such discrimination is unlikely to be soon rectified by legislative means” (emphasis added) (<em><strong>Cleburne</strong></em>, supra).<br /><br />The state court noted that women continued to make significant political progress in the years following the US Supreme Court’s decision in <em><strong>Frontiero</strong></em>. Nevertheless, the contemporary US Supreme Court continues to apply heightened scrutiny to statutory classifications based on sex. Similarly, although racial and ethnic minorities have made significant political gains since they were first accorded treatment as a suspect class, courts continue to apply strict scrutiny to statutes that classify on such bases (e.g., <em><strong>Parents Involved in Community Schools v. Seattle School District No. 1</strong></em>, 551 U.S. ___ (2007)). Classifications based on race or on sex do not become any less suspect or quasi-suspect, respectively, once extensive legislation has been passed on the subjects. The Connecticut Supreme Court cited from Chief Judge Judith Kaye’s brilliant dissent in <em><strong>Hernandez v. Robles</strong></em>, 7 N.Y.3d 388—89 (2006), in which she noted that “[s]uch measures acknowledge – rather than mark the end of – a history of purposeful discrimination...”<br /><br />The political powerlessness aspect of the suspectness or quasi-suspectness inquiry does not require a showing that the group seeking recognition as a protected class is, in fact, entirely without political power. Women today have much more political power than was the case in 1972, yet they continue to receive heightened protection under the Equal Protection Clause of the Fourteenth Amendment. The Connecticut Supreme Court held that the term “political powerlessness” is clearly a misnomer – this facet of the suspectness inquiry is applied not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power, but rather to ascertain whether the group <em><strong>lacks sufficient political strength to bring about a prompt end to the prejudice and discrimination through traditional political means</strong></em>. Thus, a group satisfied the political powerlessness factor if it demonstrates that, because of the pervasive and sustained discrimination that its members have suffered, there is a risk that the discrimination will not be rectified, sooner rather than later, merely by invoking the political process. The state court applied this standard to gay persons, and readily concluded that gay persons are entitled to heightened protection despite some recent political progress.<br /><br />The state court noted that gay people have been the target of particularly vicious, long standing, and deeply rooted prejudice, both statewide and nationwide. The US Supreme Court itself – the entity that is supposed to vindicate the rights of minorities by applying the relevant standards of review – engaged in an act of naked cruelty in <em><strong>Bowers v. Hardwick</strong></em>, supra (permitting the states to criminalize the private, consensual behaviour of gay persons, even in the bedrooms of their own homes; the majority opinion was written in tones of sneering contempt directed towards gay persons). When <em><strong>Bowers</strong></em> was handed down, 25 states had laws on their books that criminalized gay sex, even in private settings between consenting adults; some of these statutes provided for the mandatory incarceration of gay persons for many years. Fortunately, <em><strong>Bowers</strong></em> was directly and bluntly overruled by <em><strong>Lawrence v. Texas</strong></em>, 539 U.S. 558 (2003), in which decision the Court implicitly apologized to gay persons for demeaning the claim put forward by the gay plaintiff in <em><strong>Bowers</strong></em>, acknowledging that “<em><strong>Bowers</strong></em> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <em><strong>Bowers v. Hardwick</strong></em> should be and now is overruled.” When <em><strong>Lawrence</strong></em> was handed down, 14 states still criminalized gay sex, even in private settings between consenting adults. Gay persons were deemed to be mentally ill until 1973, when the <strong>American Psychiatric Association</strong> (<strong>APA</strong>) officially removed homosexuality from the “<strong>Diagnostic and Statistical Manual of Mental Disorders</strong>” (<strong>DSM</strong>). The state court noted that “[i]t is impossible to overestimate the stigma that attaches in such circumstances.” In <em><strong>Lawrence</strong></em>, the US Supreme Court noted that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It should also be borne in mind that three Justices dissented in <em><strong>Lawrence</strong></em>, signing a vitriolic, lengthy, and angry dissent penned by Justice Antonin Scalia. Scalia also wrote the dissent in <em><strong>Romer v. Evans</strong></em>, 517 U.S. 620 (supra); this dissent, in particular, was laced with examples of naked stereotypes, crude generalizations, and rank bigotry. Scalia inveighed against the homosexual “problem” faced by citizens of the State of Colorado, noting that gay persons tended “to reside in disproportionate numbers in certain communities,” where they possessed "political power much greater than their numbers, both locally and statewide." He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay persons, and railed against the fact that gay persons "care about homosexual rights issues much more ardently than the public at large." In essence, Scalia complained about the fact that gay persons availed themselves of the democratic process; he complained about the fact that gay persons actually voted on issues of significance to the gay community. When did it become undesirable, as a matter of civic hygiene, for groups of citizens to vote on issues that impact their welfare? When did willingness to invoke the political process become a distortion of that process, or a danger to that process? Scalia’s analysis in <em><strong>Romer</strong></em> was deeply flawed – in any political system in which persons have the right to vote their policy preferences into law on a “one man, one vote” basis, it is literally impossible for any group to possess “disproportionate” political power. The only circumstance under which one group can exercise what may appear to be “disproportionate” political power is if members of other groups abdicate their own political power (e.g., by not voting). Furthermore, Scalia has never complained that fundamentalist Christians “care about [issues such as mandatory school prayer, outlawing reproductive choice for women, repealing sexual orientation anti-discrimination statutes, etc.] much more ardently than the public at large.” This is a disgraceful form of rank bigotry that has no place in a US Supreme Court decision.<br /><br />The state court also noted that mainstream religion reflected antipathy towards gay persons, adducing a brief filed by the <strong>Becket Fund for Religious Liberty</strong>. It is indeed ironic that the groups that call for gay marriage to be prohibited on religious grounds have actually strengthened the case for granting gay persons quasi-suspect class status. Beyond moral disapproval, the court noted that gay people are the target of “virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated.” The court adduced the prevalence of hate crimes as another factor militating in favor of granting quasi-suspect class status to gay persons, noting that the hatred and bigotry directed towards gay persons is akin to the type of hatred and bigotry directed towards racial and ethnic minorities, which are accorded suspect class status by the state and federal courts.<br /><br />The court then noted that no openly gay person has ever been appointed to US Cabinet position or a federal appeals court, or served in the US Senate. Currently, only two openly gay people serve in the US House of Representatives. No openly gay person heads a Fortune 500 company, and it has been estimated that there are only 14 openly gay college and university presidents or chancellors (representing only one half of one percent of such positions nationally). No gay person has been elected to a statewide position in Connecticut, or ever been appointed to the Connecticut Appellate Court or the Connecticut Supreme Court, and only one gay person sits as a judge of the Connecticut Superior Court (the state trial court). Women, by contrast, enjoy much greater representation in positions of power (the state’s current governor, comptroller, and secretary of state are all women, as are the current Chief Justice and two Associate Justices of the state high court). By any standards, gay persons “remain an underclass in our [state and] nation” (cited from <em><strong>Andersen v. King County</strong></em>, 158 Wash.2d 1, 105 n.78, 138 P.3d, 963 (2006). Although the legislature has taken steps to protect gay persons from discrimination, even the state’s anti-discrimination statute contains a disclaimer stating that the statute should not be “deemed or construed 1) to mean the State of Connecticut condones homosexuality or bisexuality or any equivalent lifestyle, 2) to authorize the promotion of homosexuality or bisexuality in educational institutions or require the teaching in educational institutions of homosexuality or bisexuality as an acceptable lifestyle, 3) to authorize or permit the use of numerical goals or quotas…4) to authorize the recognition of or the right of marriage between persons of the same sex, or 5) to establish sexual orientation as a specific and separate cultural classification in society.” As a matter of state policy, gay relationships are thus disfavored (“the purposeful description of homosexuality as a “lifestyle” not condoned by the state stigmatizes gay persons and equates their identity with conduct that is disfavored by the state”). The court also noted the decade of rancorous, failed attempts to pass the non-discrimination statute, and the fact that this statute was only passed after a “compromise” was struck that resulted in, <em>inter alia</em>, this unprecedented disclaimer being included in the statute.<br /><br />Finally in the suspectness inquiry, the court noted that the US Supreme Court has held that the enactment of anti-discrimination measures prohibiting discrimination on the basis of sex is a factor <em><strong>supporting</strong></em> the conclusion that the subject group (women) is in need of heightened constitutional protection (see <em><strong>Frontiero v. Richardson</strong></em>, supra). Again excerpting from Chief Judge Kaye’s dissent in <em><strong>Robles</strong></em>, the court noted that “[s]uch measures <strong><em>acknowledge</em></strong> – rather than mark the end of – a history of purposeful discrimination” (see <em><strong>Hernandez v. Robles</strong></em>, supra).<br /><br />The combination of all of these factors led the court to conclude that gay persons in the State of Connecticut currently command less political power than did women in 1973, when <em><strong>Frontiero</strong></em> was handed down, and that gay persons were thus deserving of quasi-suspect classification. The court also remarked that the state had offered no justification for applying a different standard to gay persons under the state constitution than the <em><strong>Frontiero</strong></em> court applied to women under the US Constitution. Again, the court pointed out that the existence of laws prohibiting discrimination on the basis of race and sex has not led the US Supreme Court to withdraw strict scrutiny and quasi-strict scrutiny to laws that classify on these bases, respectively. The court spent considerable time comparing the current status of gay persons with the status of women when <em><strong>Frontiero</strong></em> was handed down; despite the fat that the ERA was considered to be extremely likely to pass, the <em><strong>Frontiero</strong></em> Court nevertheless applied quasi-strict scrutiny to sex-based classifications.<br /><br />Prior to the handing down of this decision, the Connecticut Supreme Court had never considered whether classifications that discriminate against gay persons are entitled to heightened scrutiny under the equal protection provisions of the state constitution (article first, section 20 (as amended)).<br /><br />The state correctly asserted that, in the overwhelming majority of cases in which the federal courts have considered this question, these courts have held that mere rational basis review is warranted. However, the court noted that these courts relied primarily on the US Supreme Court’s holding in <em><strong>Bowers v. Hardwick</strong></em>, supra. Although <em><strong>Bowers</strong></em> was a case involving a due process challenge, the lower courts have held, consistently, that because it was constitutionally permissible to punish intimate homosexual conduct, a group that is defined by that conduct cannot constitute a suspect or a quasi-suspect class (e.g., <em><strong>Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati</strong></em>, 54 F.3d, 261, 266 (6th Cir. 1995)). Thus, the impact of <em><strong>Bowers</strong></em> on subsequent equal protection cases was enormous. However, and crucially, <em><strong>Bowers</strong></em> is most emphatically no longer good law; to the contrary, <em><strong>Bowers</strong></em> has been expressly and bluntly overruled (see <em><strong>Lawrence v. Texas</strong></em>, supra), and the US Supreme Court has held that the <em><strong>dissent</strong></em> in <em><strong>Bowers</strong></em> should have been controlling. Furthermore, <em><strong>Bowers</strong></em> was not overruled because of societal changes (which have a major impact in cases implicating the Eighth Amendment’s prohibition of “cruel and unusual” punishment – a concept that “draws its meaning from the evolving standards of decency that mark the progress of a maturing society” (<em><strong>Trop v. Dulles</strong></em>, 356 U.S. 86 (1958))) – it was overruled because the <em><strong>Lawrence</strong></em> Court recognized that <em><strong>Bowers</strong></em> was incorrectly decided at the time that it was decided (“<strong>Bowers</strong> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <em><strong>Bowers v. Hardwick</strong></em> should be and now is overruled” (<em><strong>Lawrence</strong></em>, supra)). The Court went further, acknowledging in strong language that “[t]he central holding of <em><strong>Bowers</strong></em> has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons...The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”<br /><br />The <em><strong>Lawrence</strong></em> Court also held that it had construed the relevant Due Process question far too narrowly in <em><strong>Bowers</strong></em>. The <em><strong>Bowers</strong></em> Court framed this issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” This coarse, insulting and denigrating framing of the issue “…disclose[d] the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in <em><strong>Bowers</strong></em> was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse” (<em><strong>Lawrence</strong></em>, supra).<br /><br />This decision “removed the precedential underpinnings of the federal case law supporting the defendant’s claim that gay persons are not a quasi-suspect class.” In <em><strong>Lawrence</strong></em>, the US Supreme Court also held that the foundations of <em><strong>Bowers</strong></em> had been seriously eroded by intervening case law, making specific reference to <em><strong>Planned Parenthood v. Casey</strong></em>, 505 U.S. 833 (1992) and to <em><strong>Romer v. Evans</strong></em>, 517 U.S. 620 (1996).<br /><br />In <em><strong>Casey</strong></em> (supra), the Court reaffirmed the substantive component of the Due Process Clause of the Fourteenth Amendment. <em><strong>Casey</strong></em> is perhaps best known for the following statement:<br /><br />“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”<br /><br />This assertion is wholly irreconcilable with the Court’s holding in <em><strong>Bowers</strong></em>. Gay persons may seek autonomy with respect to the formation and conduct of personal, intimate relationships. <em><strong>Bowers</strong></em> would deny them this right. <em><strong>Bowers</strong></em> would permit the states to punish gay persons for expressing the very characteristic that is so central to their lives. The <em><strong>Lawrence</strong></em> Court recognized that it had made a serious mistake, and further recognized that this mistake had very real and deleterious consequences for the lives of gay persons. In <em><strong>Lawrence</strong></em>, the Court held that Associate Justice John Paul Stevens’ dissent in <em><strong>Bowers</strong></em> should have been controlling. This dissent emphasized that the fact that the governing majority of persons has traditionally viewed a practice as immoral is <em><strong>not</strong></em> a sufficient reason for upholding a law prohibiting that practice. Also, decisions by unmarried persons with respect to sexual behaviour are protected by the substantive component of the Due Process Clause in the same way that decisions by married persons are protected.<br /><br />The state court recognized that <em><strong>Lawrence</strong></em> represented a “sea change” in US Supreme Court jurisprudence concerning the rights of gay persons. Almost all of the federal courts (at both the district level and the intermediate appellate level) relied heavily, if not exclusively, upon <em><strong>Bowers</strong></em> to conclude that gay persons are not entitled to consideration as a quasi-suspect or a suspect class. This impediment has been removed by <em><strong>Lawrence</strong></em>. The considerations that normally come into play when deciding whether a group of persons should be granted suspect class or quasi-suspect class status may now be applied by the federal district courts and the federal appellate courts to cases in which classifications are made on the basis of sexual orientation. Thus, examination of federal precedent is inappropriate at this time; reliance on such precedent would be misplaced, due to the fact that almost all federal precedent has been influenced by <em><strong>Bowers</strong></em>.<br /><br />Two decisions handed down within a month of each other reflect the influence that <em><strong>Lawrence</strong></em> is now having on due process challenges to the ban against openly gay persons serving in the armed forces of the US. In May 2008, a three-judge panel of the US Court of Appeals for the Ninth Circuit reinstated a lawsuit filed by Air force Major Margaret Witt, who had been suspended from duty pursuant to 10 U.S.C. section 654 (the basis for the “Don’t Ask, Don’t Tell” policy that prohibits openly gay men and women from serving in the Armed Forces) (see <em><strong>Witt v. Department of the Air Force</strong></em>, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Senior Circuit Judge William Canby held that 10 U.S.C. section 654 should be subjected to strict scrutiny; he based this conclusion on the proposition that the right to engage in private, consensual sexual relations with another adult is a right of the highest constitutional order, and that this right is firmly protected by the substantive component of the Fifth Amendment’s Due Process Clause (Canby asserts that although the US Supreme Court did not expressly characterize this right as “fundamental,” it certainly treated it as such). Circuit Judges Graber and Gould held that 10 U.S.C. section 654 should be subjected to quasi-strict scrutiny; they concluded that the US Supreme Court had engaged in a searching inquiry that was certainly more demanding than mere rational basis review. The Connecticut Supreme Court adduced this decision as a case on point, holding that reliance on federal precedent controlled by <em><strong>Bowers</strong></em> is now entirely inapposite.<br /><br />(Although this was not discussed by the Connecticut state supreme court, a three-judge panel of the US Court of Appeals for the First Circuit recently held that the US Supreme Court, in <em><strong>Lawrence</strong></em>, recognized a protected liberty interest in private, consensual sexual intimacy, requiring a “balancing of constitutional interests that defies either the strict scrutiny or rational basis label” (see <em><strong>Cook v. Gates</strong></em>, Nos. 06-2313, 06-2381, June 9, 2008). Judge Howard engaged in a meticulous examination of <em><strong>Lawrence</strong></em>, articulating four reasons in support of this holding. This falls outside the scope of this analysis, but it should be apparent that <em><strong>Lawrence</strong></em> has caused at least two of the federal appellate courts (to date) to conclude the right to sexual intimacy is a right of a very high constitutional order.)<br /><br />For these reasons, the Connecticut Supreme Court concluded that almost all of the federal case law articulating the standard of review to which gay persons (as a group) should be subjected is no longer good law. This certainly appears to be a sound conclusion, given the above two circuit court opinions.<br /><br />In <em><strong>Romer v. Evans</strong></em>, supra, the US Supreme Court purported to apply rational basis review to strike down Colorado’s Amendment 2 (see above discussion) (in fact, the Court may have applied a much more demanding standard of review than mere rational basis review, notwithstanding the language employed). The state argued that, because the US Supreme Court applied rational basis review to find that Amendment 2 violated the Equal Protection Clause, this is the standard of review that should always be applied in cases in which classifications are made on the basis of sexual orientation. The Connecticut state court spent little time exposing the folly underlying this reasoning. The <em><strong>Romer</strong></em> Court held that Amendment 2 could not withstand even the lowest level of review (rational basis review); it was therefore entirely unnecessary for the Court to decide whether heightened scrutiny was required. This is in accordance with the Court’s own well-established principle “never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” (see <em><strong>Brockett v. Spokane Arcades</strong></em>, Inc., 472 U.S. 491 (1985)).<br /><br />In sum, the court held that federal case law is inapposite because these cases rely so heavily on <em><strong>Bowers v. Hardwick</strong></em>, supra, which has been overruled by <em><strong>Lawrence v. Texas</strong></em>, supra. In addition, federal courts that have determined that gay persons are not entitled to heightened protection have failed to reconcile their analyses with the analysis employed by the US Supreme Court in concluding that women comprise a quasi-suspect class.<br /><br />The court then turned to an analysis of sister state supreme court opinions. The majority of such opinions have concluded that gay people are not entitled to heightened protection; however, the Connecticut state court concluded that these cases were analytically unsound and did not constitute persuasive authority. Instead, the Connecticut state court held that the recent opinion handed down by the California Supreme Court (<em><strong>in re Marriage Cases</strong></em>, S147999, May 15, 2008) constituted persuasive authority; the Connecticut state court also aligned itself with Chief Judge Kaye’s dissent in <em><strong>Hernandez v. Robles</strong></em>, supra. Time constraints prevent a detailed discussion in this essay; however, in almost all cases, the respective state supreme courts failed to properly apply the four-pronged test for suspectness or quasi-suspectness.<br /><br />Turning to public policy considerations, the state court held that the change to the definition of marriage would not in any way impair the ability of heterosexual persons to avail themselves of the benefits and protections afforded by this institution. Instead, the state court held that granting gay persons access to this institution would expand the right to marry without any adverse effect on those already free to exercise that right. The state court compared this change to the change worked when the US Supreme Court struck down the ban on interracial marriages in <em><strong>Loving v. Virginia</strong></em>, 388 U.S. 1 (1967). The court also considered the effect that the ban on same-sex marriage has on children raised by same-sex partners, concluding that it was in the best interests of children raised by such couples to expand the definition of marriage so as to include same-sex spouses. Thirdly, the state court held that “civil unions” would be viewed as reflecting an official state policy that this entity is inferior to marriage. Finally, the court concluded that religious autonomy would in no way be impaired by expanding the definition of marriage to include same-sex couples. Those churches opposed to same-sex marriages can never be forced to marry couples of the same sex, just as they can never be forced to marry divorced people, or people who are not members of the church in question. This is an important point that has been made, over and over again, by gay rights activists; no church would ever be forced to conduct marriages of same-sex couples, and religious autonomy would in no way be compromised by permitting same-sex marriages.<br /><br />The state court then turned to the final determination – having established that gay persons meet the four criteria adumbrated by the court for treatment as a quasi-suspect class, the state’s actions have to be “substantially related to an important state interest” (as opposed to “rationally related to a legitimate state interest” (rational basis review), or “necessary for the promotion of a compelling state interest” (strict scrutiny)). The state proffered two justifications for not permitting same-sex couples to marry, in the face of the court’s determination that gay persons comprise a quasi-suspect class.<br /><br />The first reason advanced by the state was to promote uniformity and consistency with the laws of other jurisdictions. The state, however, advanced no explanation as to why the promotion of uniformity with the laws of other jurisdictions constituted a truly important state interest, and failed to identify case law that would support this contention. In the absence of such a showing by the state, the state could not prevail on its claim that “the state’s interest in defining marriage as most other jurisdictions do is sufficiently compelling to justify the discriminatory effect” that this definition has on gay persons.<br /><br />The second reason advanced by the state was to preserve the traditional definition of marriage as a union between a man and a woman. It was abundantly clear, from the record, that this was the state’s primary, and overriding, goal. The circular nature of this reasoning is self-evident. Citing from Chief Judge Kaye’s dissent in <em><strong>Hernandez v. Robles</strong></em>, supra, the court held that “[a] classification…cannot be maintained merely “for its own sake” (see <em><strong>Romer v. Evans</strong></em>, supra). Instead, the classification (that is, the exclusion of gay persons from civil marriage) must advance a state interest that is separate from the classification itself. Because the “tradition” of excluding gay persons from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of “history.” Indeed, the justification of “tradition” does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination – no matter how entrenched – does not make the discrimination constitutional” (internal citations omitted). Indeed, the court noted, “the fact that same-sex couples have traditionally been prohibited from marrying <em><strong>is</strong></em> the reason [the action challenging the ban on same sex marriage] was commenced; it cannot be converted into the dispositive reason it cannot succeed” (cited from <em><strong>in re Marriage Cases</strong></em>, supra).<br /><br />Like the California Supreme Court, the Connecticut Supreme Court approached the issue not by creating a new right to “same-sex marriage,” but by applying equal protection theory to include gay people in the pre-existing right of marriage. When the California Supreme Court overturned the prohibition against interracial marriage (see <em><strong>Perez v. Sharp</strong></em>, 32 Cal.2d 711, 198 (1948)), this court did not create a new right to “interracial marriage” – it employed state constitutional analysis to expand the right to marry to include interracial couples. The US Supreme Court eventually followed the lead set by the California Supreme Court, holding that the prohibition of interracial marriages violated the Equal Protection Clause of the Fourteenth Amendment (<em><strong>Loving v. Virginia</strong></em>, 388 U.S. 1 (1967)).<br /><br />Although three of the seven Justices dissented, it is noteworthy that the dissenting Justices made only passing reference to the tired refrain that this matter should be decided by the democratic process, as opposed to being decided by judges through state constitutional interpretation. One of the three dissents focused primarily on the assertion that civil unions were inferior to actual marriages, as well as on the importance of the “political powerlessness” factor in triggering quasi-strict scrutiny. One patently absurd dissenting argument was that there was no equal protection violation, because both gay and heterosexual persons have the right to marry a person of the opposite sex. Another analytically impoverished dissent argued that the purpose of marriage is to regulate procreation – an argument that has been emphatically rejected by the California Supreme Court and by the Connecticut Supreme Court majority. As has been pointed out elsewhere, the ability to procreate is no longer central to the definition of marriage. Many married people choose not to have children, or are unable to have children, just as many unmarried people choose to have children. This dissent reduced marriage to the status of a vehicle that “enhances the special status of procreative conduct.”<br /><br />Unlike the California state constitution, the Connecticut state constitution cannot be amended directly, by the voters. This is crucial – whereas the right wing can whip up anti-gay hysteria in California, and may even succeed in reversing the California Supreme Court decision, the right wing cannot manipulate the voters of Connecticut in this manner. Connecticut has thus become the third state to recognize gay marriage in both name and substance. (A challenge to the prohibition of gay marriage in Iowa is currently pending.)<br /><br />All of this is proof that the incremental strategy of appealing to state supreme courts is working, albeit slowly. Just as the gay community turned to state supreme courts to strike down sodomy statutes in the wake of <em><strong>Bowers</strong></em> (supra), so is the gay community turning to state supreme courts to strike down prohibitions against gay marriage. Both time and justice are on our side.<br /><br />Three down, with 47 to go.<br /><br /><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-84255456716974403662008-10-05T20:22:00.006+01:002009-03-07T03:14:25.260+00:00The importance of the courts as the elections draw near...<div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">The failure of conservatives to understand and appreciate the function of the Article III courts in our system never ceases to amaze me. Phrases such as "judicial usurpation of the will of the people" are bandied about by people who appear to know nothing about why the federal courts are independent in our tripartite system of government, and why federal judges may not be removed from the bench (or suffer a pay decrease) except in cases of corruption or other gross malfeasance.<br /><br />The provisions of the Bill of Rights were not written to protect popular people or to serve the interests of the majority in our democracy. The framers of our Constitution recognized that there would be occasions when the will of the majority would have to be restrained, and that impediments would have to be created to ensure that the will of the majority would, at times, deliberately and intentionally be thwarted. They created the Senate, with its complex procedural rules and the need for cloture votes, to impede and retard the will of the majority. They created the Article III courts knowing that these courts would hand down unpopular decisions. It is true that the US Constitution is primarily a procedural document, but it is also the opinion of many scholars (and of the writer) that the Constitution also incorporates substantive guarantees and protections. It is with particular reference to the Due Process Clauses of the Fifth and Fourteenth Amendments that constitutional scholars are split, with "strict constructionists" at one end of the spectrum and believers in "substantive due process" at the other end.<br /><br />By their terms, the Due Process Clauses are entirely procedural, and merely guarantee that persons accused of breaking the law must receive fair and impartial hearings. The extremists who believe that "substantive due process" has no place in due process jurisprudence fail to grasp the fact that the law is written <em><strong>for a purpose</strong></em>; that the law is intended to protect concepts that are central to our notion of what it means to be free human beings in a society predicated on the recognition of "ordered liberty." In short, scholars who believe in substantive due process believe not just in the <em><strong>how</strong></em> of the law, but also in the <em><strong>why</strong></em> of the law. It would perhaps be best to characterize the difference between judicial conservatives and judicial liberals by asserting that the latter believe that the Constitution itself protects certain fundamental rights from encroachment by the state or federal governments – that the Constitution implicitly includes “Due Substance” Clauses in parallel with the explicit Due Process Clauses.<br /><br />It should be noted that the Due Process Clause of the Fifth Amendment is binding on the behaviour of the US government, whereas the Due Process Clause of the Fourteenth Amendment is binding on the behaviour of the states. For the purpose of analysis, claims against the US government implicating the Due Process Clause of the Fifth Amendment are treated almost identically to claims against the states implicating the Due Process Clause of the Fourteenth Amendment. However, over the course of many decades, the US Supreme Court has gone further, and has held that there are some issues involving the exercise of liberty interests that may not be infringed by the state or federal governments, regardless of the fairness of the procedures involved when adjudicating allegations of criminal conduct. In other words, judges and constitutional scholars who believe in the precept of substantive due process maintain that there are some spheres of personal conduct <em><strong>that may not be regulated by the state or federal government at all</strong></em>, absent reasons which may vary in terms of significance, depending on the nature of the liberty interests at stake. These scholars believe that the Due Process Clauses protect substance, and not merely procedure.<br /><br />The substantive reach of the Due Process Clauses is limited by interpretation of the word “liberty” as that word appears in these Clauses. What is liberty? Freedom from imprisonment clearly lies at the heart of liberty (“Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects” (<em><strong>Zadvydas v. Davis</strong></em>, 533 U.S. 678 (2001))). However, the Due Process Clause protects people from more than mere freedom from physical restraint (“We have held, of course, that the Due Process Clause protects interests other than the interest in freedom from physical restraint, see <em><strong>Michael H. v. Gerald D.</strong></em>, 491 U.S. 110 (<em><strong>Albright v. Oliver</strong></em>, 510 U.S. 266 (1994))). The Court has held that the protections afforded individuals by the Due Process Clause of the Fourteenth Amendment include a parent’s right to send a child to a private school (<em><strong>Pierce v. Society of Sisters</strong></em>, 268 U.S. 510 (1925)), the right to teach a child a foreign language in a parochial school (<em><strong>Meyer v. Nebraska</strong></em>, 262 U.S. 390 (1923)), the right to marry (<em><strong>Zablocki v. Redhail</strong></em>, 434 U.S. 374 (1978)), the right to enter into a multiracial marriage (<em><strong>Loving v. Virginia</strong></em>, 388 U.S. 1 (1967)), the right to procreate (or not to procreate) (<em><strong>Skinner v. Oklahoma</strong></em>, 316 U.S. 535 (1942)), the right to use contraceptives (<em><strong>Griswold v. Connecticut</strong></em>, 381 U.S. 479 (1965), <em><strong>Eisenstadt v. Baird</strong></em>, 405 U.S. 438 (1972)), the right to abortion (<em><strong>Roe v. Wade</strong></em>, 410 U.S. 113 (1973)), and most recently, the right of gay men and lesbians to have sex (<em><strong>Lawrence v. Texas</strong></em>, 539 U.S. 558 (2003)). All of these activities are protected by the Due Process Clause of the Fourteenth Amendment – more specifically, by the substantive component of this Clause. Through interpretation of the word “liberty,” the Court has held that all of the above actions involve the engagement of persons in the exercise of their liberty interests, and that all of these actions are protected by this component.<br /><br />The last of these decisions (<em><strong>Lawrence</strong></em>, supra) ended a 17 year period during which gay Americans could be (and occasionally were) prosecuted and persecuted for having gay sex, <em><strong>even in the privacy of their own homes</strong></em>. <em><strong>Lawrence</strong></em> directly and bluntly overruled an earlier decision (<em><strong>Bowers v. Hardwick</strong></em>, 478 U.S. 186 (1986)) which held that gay Americans could be prosecuted for engaging in same-sex sexual activity, even in the privacy of their own homes. When <em><strong>Bowers</strong></em> was decided, 25 states criminalized gay sex; during the 17 year interval between the handing down of <em><strong>Bowers</strong></em> and its demise with the handing down of <em><strong>Lawrence</strong></em>, gay activists were largely successful in turning to state supreme courts to attack these statutes on independent state constitutional grounds (under our principles of judicial federalism, a state supreme court decision implicating only state constitutional considerations may not be reviewed by the US Supreme Court); by the time <em><strong>Lawrence</strong></em> was handed down, the number of states with such criminal penalties on their books had dropped from 25 states to 14 states. It should be remembered that punishment for violating these statutes varied from a light fine to <em><strong>up to 20 years in prison</strong></em>, depending on the state in which gay people had sex.<br /><br />(Federal judges are still grappling with the reach of <em><strong>Lawrence</strong></em>. The US Supreme Court, in <em><strong>Lawrence</strong></em>, never actually stated the standard of review that it applied in overturning <em><strong>Bowers</strong></em> and in holding the Texas statute (and 13 other state statutes) to be unconstitutional. Although the US Supreme Court invoked much of the language employed in traditional rational basis review in striking down the Texas statute that prohibited people from having gay sex, constitutional scholars have pointed out that the Court actually engaged in a much more searching standard of review than that involved in mere rational basis review. In May, a three-judge panel of the US Court of Appeals for the Ninth Circuit analyzed <em><strong>Lawrence</strong></em> by carefully scrutinizing what the US Supreme Court actually <em><strong>did</strong></em> in <em><strong>Lawrence</strong></em>, as opposed to what the Court <em><strong>said</strong></em> it did, and concluded that the Court had, at the very least, engaged in heightened scrutiny (quasi-strict scrutiny) in striking down this measure (the dissenting circuit court justice went further, opining that the Court had applied strict scrutiny). The three-judge panel reinstated a lawsuit filed by an Air Force major (Margaret Witt) who had been suspended from duty pursuant to 10 U.S.C. sec. 654 (the basis for the “Don’t Ask, Don’t Tell” policy that prohibits openly gay men and women from serving in the Armed Forces) (see <em><strong>Witt v. Department of the Air Force</strong></em>, No. 06-35644). Circuit Judges Ronald M. Gould and Susan P. Graber held that the Court had applied heightened scrutiny, whereas Senior Circuit Judge William C. Canby held that the Court had applied strict scrutiny.<br /><br />In June, a divided three-judge panel of the US Court of Appeals for the First Circuit upheld 10 U.S.C. sec. 654 (and thus “Don’t Ask, Don’t Tell”), but also applied a heightened level of scrutiny in its analysis (see <em><strong>Cook v. Gates</strong></em>, Nos. 06-2313, 06-2381, June 9, 2008). Like the Ninth Circuit panel, the First Circuit panel concluded that the <strong><em>Lawrence</em></strong> Court had not, in fact, applied rational basis review. Circuit Judge Jeffrey R. Howard, writing for the majority, held that <em><strong>Lawrence</strong></em> recognized a protected liberty interest in private, consensual sexual intimacy, requiring a “balancing of constitutional interests that defies either the strict scrutiny or rational basis label.” Judge Howard engaged in a meticulous examination of <em><strong>Lawrence</strong></em>, articulating four reasons in support of this holding. First, he noted that <em><strong>Lawrence</strong></em> relied on other cases (such as <em><strong>Roe v. Wade</strong></em>, supra, <em><strong>Griswold</strong></em>, supra, and <em><strong>Eisenstadt</strong></em>, supra) that recognized a due process right in the realm of decisions relating to personal sexual conduct that merited heightened scrutiny. Second, he noted the tenor of the language employed by the <em><strong>Lawrence</strong></em> Court, which used strong language to overturn <em><strong>Bowers</strong></em> and to stress the dignity of gay Americans (“The case…involve[s] two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”). This language was consonant with, and consistent with discussions of core constitutional rights that clearly mandate a greater level of protection. Thirdly, Judge Howard noted that in overturning <em><strong>Bowers</strong></em>, the <em><strong>Lawrence</strong></em> Court explicitly stated that Justice John Paul Stevens’ <em>dissent</em> in <em><strong>Bowers</strong></em> should have been controlling; this dissent clearly asserted that the right to engage in private, consensual gay sex with an adult partner was in the same category as recognized fundamental constitutional rights. Finally, Judge Howard noted what numerous constitutional scholars have noted – which is that, had the <em><strong>Lawrence</strong></em> Court engaged in genuine rational basis review, the State of Texas would undoubtedly have <em><strong>won</strong></em> (this level of review, described as a “paradigm of judicial restraint” (see FCC <em><strong>v. Beach Communications, Inc., </strong></em>508 U.S. 307 (1993)), permits even <em>post hoc</em> justifications for the challenged legislation, and permits the reviewing court to reach out and assert its own justification(s), independent of and in addition to the state’s arguments).<br /><br />Two circuit panels have now interpreted <em><strong>Lawrence</strong></em> as incorporating a heightened level of judicial scrutiny. The failure of the US Supreme Court to acknowledge, explicitly, the level of review that it applied should not be confused with an assumption that the Court employed rational basis review merely because the Court employed some of the language associated with traditional rational basis review. The <em><strong>Lawrence</strong></em> Court explicitly rejected the notion that rights deserving of a higher level of review than mere rational basis review must necessarily be rooted in the “history and tradition” analysis usually reserved for the recognition of fundamental rights, instead pointing explicitly to an “emerging awareness” of the right to privacy in certain sexual contexts. Two circuits have therefore taken the official position that <em><strong>Lawrence</strong></em> involved more than mere rational basis review; the Ninth Circuit adumbrates a heightened scrutiny analysis, whereas the First Circuit embraces a balancing test in which the right to gay sexual privacy must be recognized and balanced against a sufficiently important governmental interest.)<br /><br />Strict constructionists would deny that the Due Process Clause of the Fourteenth Amendment (or its Fifth Amendment counterpart) incorporated substantive protections against state action; all of the above decisions would be unsupportable in the eyes of a jurist who adheres to an absolutely literal interpretation of the Due Process Clauses. Rights which Americans take for granted – the right to use contraceptives, the right to teach your children the languages of your choice, the right to marry a person of a different race – would not exist under such a judicial regimen. All of these matters would be subject to the outcome of the democratic process. Article III courts would merely review the procedural fairness of the laws passed by Congress and by the states, completely avoiding any analysis of the <em>substance</em> (or the “why”) of the law.<br /><br />This is not how the judiciary functions in the context of a constitutional democracy. A key role of the courts is to protect the rights of minorities, consistent with the generally recognized definition of a democracy as being a system in which the majority rules, subject to certain rights that are preserved for minorities regardless of majoritarian sentiment. In <em><strong>United States v. Carolene Products Co.</strong></em>, 304 U.S. 144 (1938), the US Supreme Court hinted at what has become a theory of judicial review that arguably operated when <em><strong>Romer v. Evans</strong></em>, 517 U.S. 620 (1996) was handed down. In the oft-cited Footnote 4 of <em><strong>Carolene Products Co.</strong></em>, the Court made reference to the possibility that a democracy can, in the words of constitutional scholar John Hart Ely, “malfunction” (see “<strong>Democracy and Distrust; A Theory of Judicial Review</strong>” by John Hart Ely – this book has become one of the most oft-cited texts employed by constitutional scholars). Ely identifies one type of democratic “malfunction” occurring when a democracy restructures itself in such a manner as to “keep the outs out and to keep the ins in.” This is certainly what occurred in 1992 when the people of the State of Colorado amended their state constitution in such a manner as to deny to gay persons, and to gay persons alone, the right to petition their government, at any and all levels, for redress of grievances, in both the public and the private sectors. Although the US Supreme Court claimed that it adopted the rational basis test in striking down this measure (which was named “Amendment 2”), constitutional scholars have pointed to the strong language employed by the Court in this decision, and have observed that the stated rationale of the Court was not really different from the rationale adopted by the Colorado Supreme Court. (<em><strong>Romer</strong></em> was an equal protection case, and a full analysis of this decision and its implications falls outside the scope of this essay.)<br /><br />While the writer respects the position adopted by “strict constructionists,” the writer deplores the actual operation of this judicial philosophy and believes it to be fundamentally un-American. The judiciary should be more than an interpretive body; it is a crucial structural and operational check against majoritarian overreaching, or excesses. Associate Justices Antonin Scalia and Clarence Thomas, with their hysterical, shrill, over the top dissents in both <strong><em>Lawrence</em></strong> and <strong><em>Romer</em></strong> revealed, with chilling verbiage, the direction in which their versions of “strict constructionism” would take America.<br /></span></div><div align="justify"></div><div align="justify"><br /><strong><span style="font-family:verdana;">PHILIP CHANDLER</span></strong></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-15421707671419553482008-10-05T20:16:00.003+01:002009-03-06T13:19:55.606+00:00Religion is not an excuse to break the law!<div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Conservatives are now in an uproar over a decision handed down by the California Supreme Court on Monday, in which the court held that two Christian doctors could not exempt themselves from the requirements of the state's anti-discrimination statute by refusing to provide artificial insemination services to a lesbian woman on religious grounds. Writing for a unanimous court, Justice Joyce Kennard held that the doctors had neither a free speech defense or a religious free exercise defense for their refusal to provide these services to a gay woman, Guadalupe Benitez. This ruling makes it clear that medical services may not be withheld from gay Californians on the basis of religious conviction.<br /><br />I find myself wondering whether critics of this decision actually bothered to read the opinion handed down by the California Supreme Court (<em><strong>North Coast Women’s Care Medical Group, Inc. v. Benitez</strong></em>, No. GIC770165). This unanimous opinion analyzed the claim asserted by the plaintiff taking into consideration both US constitutional issues and California state constitutional issues. Under our principles of judicial federalism, a state court opinion that implicates both US constitutional analysis and state constitutional analysis may only be reviewed by the US Supreme Court (or by any other Article III court) to the extent that the opinion in question relies upon US constitutional analysis. If independent state constitutional grounds suffice to sustain the judgment, the US Supreme Court cannot reverse the judgment; it may only negate the US constitutional analysis with which it disagrees.<br /><br />The California Supreme Court first addressed the standard of review that is applicable to claims of religious objection under the relevant US Supreme Court precedents. Prior to 1990, any law that burdened a particular religious practice was subjected to strict scrutiny (e.g., <em><strong>Sherbert v. Verner</strong></em>, 374 U.S. 398 (1963), <em><strong>Wisconsin v. Yoder</strong></em>, 406 U.S. 205 (1972)). However, in <em><strong>Employment Div., Dept. of Human Resources of Oregon v. Smith</strong></em>, 494 U.S. 872 (1990), the US Supreme Court held that a law of general application that was not passed in an attempt to target a particular religious practice, but which nevertheless has the incidental effect of infringing upon a particular religious practice, will be upheld against constitutional attack provided it satisfies rational basis review. This marked a profound change in the manner in which the Court adjudicated claims of Free Exercise violations. The US Supreme Court reiterated that holding three years later in <em><strong>Church of Lukumi Babalu Aye, Inc. v. City of Hialeah</strong></em>, 508 U.S. 520 (1993). Thus, under current US Supreme Court holdings, a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general application on the grounds that compliance with that law violates the religious beliefs of the objector.<br /><br />It is well established legal doctrine that the US Constitution sets a floor, but not a ceiling, to the rights enjoyed by the people of the United States. State constitutions may be, and frequently are, interpreted to grant the citizens of the respective states additional rights and protections not afforded them under US constitutional analysis. It is amusing to note that the very conservatives who deplore this “one-way ratchet” effect now seek its benefit. In <em><strong>Catholic Charities of Sacramento, Inc. v. Superior Court</strong></em>, 32 Cal. 4th 527 (2004), the California Supreme Court applied the rational basis review test adopted by the US Supreme Court in <em><strong>Smith</strong></em> (supra) and upheld from constitutional attack the Women’s Contraception Equity Act (WCEA), which requires that employers which provide prescription drug insurance coverage for their employees include coverage for prescription contraceptives. The court explained: “The WCEA’s requirements apply neutrally and generally to all employers, regardless of religious affiliation, except to those few who satisfy the statute’s strict requirements for exemption on religious grounds. The act also addresses a matter the state is free to regulate; it regulates the contents of insurance policies for the purpose of eliminating a form of gender discrimination in health benefits. The act conflicts with Catholic Charities’ religious beliefs only incidentally, because those beliefs happen to make prescription contraceptives sinful.” (<em><strong>Catholic Charities</strong></em>, supra, at p. 549.)<br /><br />The state supreme court invoked the US Supreme Court’s Smith test in the context of this issue. The court noted that medical practitioners fall under the domain of entities subject to the proscriptions of the Unruh Civil Rights Act. This act requires that business establishments provide “full and equal accommodations, advantages, facilities, privileges, or services” to all persons, notwithstanding their sexual orientation (sexual orientation was explicitly added to the protective ambit of this act in 2005; before 1999, California’s appellate courts had interpreted the act as prohibiting sexual orientation discrimination, despite the fact that the wording of the act did not include reference to sexual orientation).<br /><br />The plaintiffs asserted that a higher level of review was required because their claim involved “hybrid rights” (the plaintiffs asserted that in addition to infringing their Free Exercise rights, the act infringed their free speech rights under the First Amendment). The state court rejected this assertion, pointing out that the US Supreme Court has never determined whether the “hybrid rights” theory is valid, and has never invoked this theory to justify applying strict scrutiny to a free exercise claim. The state court also invoked precedent from the US Court of Appeals for the Sixth Circuit, which rejected as “’completely illogical’ the proposition that ‘the legal standard [of review] under the Free Exercise Clause depends on whether the free-exercise claim is coupled with other constitutional rights.’ (<em><strong>Kissinger v. Board of Trustees</strong></em> [(1993) 5 F.3d 177, 180 & fn. 1.)” The state court rejected the contention by Catholic Charities that requiring it to provide prescription contraceptive coverage to its employees would violate its First Amendment right to free speech, noting that “compliance with a law regulating health care benefits is not speech.”<br /><br />In short, the court held that religious beliefs cannot be invoked as a shield to justify disobeying laws of general application. There are many fundamentalist Christians who sincerely believe that gay men and lesbians should be stoned to death; murdering gay Americans on religious grounds is not tolerated in America, and few reasonable people would regard it as proper for a court of law to entertain such a defense to murder charges.<br /><br />We do not live in a theocracy. We live in a pluralistic, diverse constitutional democracy. We do not get to pick and choose which civil and criminal laws to follow and which laws to break based on personal religious beliefs. The physicians who refused to provide their services to the lesbian women cannot evade their legal responsibility to comply with the law simply because they do not believe that gay women should be permitted to avail themselves of artificial insemination procedures granted without reservation to heterosexual, married women. If these physicians have any sense, they will acknowledge that they do not enjoy special rights merely because they disapprove of gay sex and of gay Americans.</span></div><div align="justify"><br /><br /><span style="font-family:verdana;font-size:130%;"><strong>PHILIP CHANDLER</strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-20103641235857639352008-10-05T20:05:00.002+01:002009-03-06T13:20:49.693+00:00Victory in California!<div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">I am profoundly grateful to Chief Justice George and the other members of the majority who voted to legalize gay marriage in California (<em><strong>in re Marriage Cases</strong></em>, S147999 (2008) 08 C.D.O.S. 5820). By relying entirely on the state constitution’s guarantees of due process and equal protection, without placing any reliance on the Due Process or Equal Protection Clauses of the US Constitution’s Fourteenth Amendment, the majority ensured that this decision is immune to review by the US Supreme Court (cases involving adjudication of only the state constitution may not be reviewed by any Article III court under our system of judicial federalism). I have yet to hear any coherent argument against gay marriage; those who oppose gay marriage frequently make a great deal of noise, but their arguments ring increasingly tired and hollow.<br /><br />What should be noted is the influence that <em><strong>Lawrence v. Texas</strong></em>, 539 U.S. 558 (2003) had on the majority opinion (although, as noted above, the majority did not place reliance on this decision). The <em><strong>Lawrence </strong></em>Court explicitly and bluntly overturned <em><strong>Bowers v. Hardwick</strong></em>, 478 U.S. 186 (1986) (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <em><strong>Bowers v. Hardwick</strong></em> should be and now is overruled.”). The <em><strong>Lawrence</strong></em> Court implicitly apologized to the gay community for the manner in which it had demeaned gay Americans (“The central holding of <em><strong>Bowers</strong></em> has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”). What is noteworthy about <em><strong>Lawrence</strong></em> is the fact that the Court held that <em><strong>Bowers</strong></em> was badly decided at the time that it was handed down; usually, the Court overturns decisions with which it no longer agrees by adducing societal changes as justification for overruling such decisions (for example, in striking down the death penalty as applied to mentally retarded individuals (<em><strong>Atkins v. Virginia</strong></em>, 536 U.S. 304 (2002)) and in cases where the perpetrator was a juvenile at the time that he or she committed the crime in question (<em><strong>Roper v. Simmons</strong></em>, 543 U.S. 551 (2005)), the Court relied upon objective criteria indicative of changing societal norms, in accordance with its holding that the Eighth Amendment’s prohibition of cruel and unusual punishments “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (<em><strong>Trop v. Dulles</strong></em>, 356 U.S. 86 (1958))). In <em><strong>Lawrence</strong></em>, the Court was honest enough to admit that it had made a serious mistake in <em><strong>Bowers</strong></em>, acknowledging “…the Court's own failure to appreciate the extent of the liberty at stake.” The Court went on to admit that “[t]o say that the issue in <em><strong>Bowers</strong></em> was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”<br /><br />The California Supreme Court drew an analogy to what the US Supreme Court did in <em><strong>Lawrence</strong></em>. Instead of framing the issue as being whether or not the California state constitution grants a right to “same-sex marriage,” the court identified marriage as a “fundamental right” under the relevant California state court precedents (e.g. <em><strong>Ortiz v. Los Angeles Police Relief Assn.</strong></em> (2002) 98 Cal.App.4th 1288, 1303; <em><strong>in re Carrafa</strong></em>, (1978) 77 Cal.App.3d 788, 791), and then asked whether the state could meet the burdens of “strict scrutiny” to justify limiting marriage to opposite-sex only couples. The adoption of this paradigm lay at the heart of the decision; the court compared this case to its decision in <em><strong>Perez v. Sharp</strong></em>, 32 Cal.2d 711 (1948) (declaring the state’s prohibition of interracial marriages violative of the state constitution’s guarantees of substantive fairness and equal protection). The court, in <em><strong>Perez</strong></em>, did not address the issue in terms of whether the state constitution granted a right to “interracial marriage” – rather, the court addressed the issue of whether or not interracial couples could be denied the right to marry. In <em><strong>in re Marriage Cases</strong></em>, the court addressed the issue of whether or not gay couples could be denied the right to marry. The court accepted the analysis of Chief Judge Judith Kaye of the New York Court of Appeals, in her dissent in the New York gay marriage case (<em><strong>Hernandez v. Robles</strong></em>, 7 N.Y.3d 338 (2006), in which the gay plaintiffs lost) who declared that “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”<br /><br />At least as important as the judgment in <em><strong>in re Marriage Cases</strong></em> was a crucial aspect of the court’s reasoning. The court held that classifications on the basis of sexual orientation are “suspect,” and that gay men and lesbians constitute a “suspect class” for the purposes of equal protection analysis. This is an extremely important development. Legislation that adversely impacts a “suspect class” must be subjected to the highest level of judicial scrutiny, referred to as “strict scrutiny.” Under the relevant California precedents, “strict scrutiny” requires that the state demonstrate that the challenged legislation promotes a “compelling” state interest, and that the challenged legislation is “necessary” to promote that interest. In other words, the challenged legislation must promote a state interest of crucial importance (examples include national security and the protection of life itself); furthermore, only by implementing the challenged legislation can that interest be promoted. Note that this standard is very similar to “strict scrutiny” in federal equal protection jurisprudence. Strict scrutiny in federal equal protection jurisprudence requires that the state demonstrate the existence of a compelling state interest, and that the legislation in question must impinge the disadvantaged group in the “least restrictive” manner possible; that is to day, the legislation must be “narrowly tailored” so as to sweep no more broadly than is essential to promote the interest in question (see <em><strong>Heller v. Doe</strong></em>, 509 U.S. 312 (1993)). Even if the court’s decision is overturned by the voters in November 2008 (a measure will appear on the ballot to amend the state constitution to define marriage as being limited to one man and one woman only), this aspect of the court’s reasoning will not be disturbed. Assuming passage of the amendment, legislation that classifies on the basis of sexual orientation must now be subjected to strict scrutiny by lower courts throughout the state.<br /><br />Currently, the State of California offers “domestic partnerships” to same-sex couples who choose to avail themselves of this option. These partnerships are substantively almost identical to marriages, and the court engaged in an extended discussion as to whether or not these partnerships constitute an adequate alternative to marriages. The court concluded that the existence of such a two-tiered system created the very real danger that relationships between gay couples would be treated with less dignity and respect than relationships between heterosexual couples. The court further noted, with extraordinary eloquence, that “because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.” The court also noted that acknowledgment by a person that he or she is in a domestic partnership effectively constitutes acknowledgement by that person that he or she is gay; the very term “domestic partnership” denotes a registered gay relationship, whereas the term “marriage,” if retained exclusively for registered heterosexual relationships and used in the same context, denotes a registered heterosexual relationship. Thus the very term “domestic partnership,” when used by a person to describe his or her relationship status, constitutes a public acknowledgement of that person’s sexual orientation – an acknowledgement not demanded of similarly situated heterosexual, married persons.<br /><br />As alluded to above, it is possible that the California state constitution may be amended by the voters through the referendum process in November 2008 to define marriage as a union of only one man and one woman. The tangible, substantive effects of such an amendment would not be nearly as deleterious as was the case in (for example) the State of Nebraska, in which state the recognition of same-sex relationships was explicitly prohibited by a state constitutional amendment enacted in 2000 (this amendment prohibited the recognition not just of gay marriages, but also the recognition of civil unions, domestic partnerships, and any similar statutory arrangements). This is because California domestic partnerships would not be nullified by the proposed constitutional amendment. Immediately following the handing down of <em><strong>in re Marriage Cases</strong></em> on May 15, 2008, polls indicated that a narrow majority favored enactment of the proposed amendment. However, a Field Poll result released on May 28, 2008 indicated that 51% of registered voters favored allowing gay couples to wed, with only 42% disapproving. Although a coalition of states and right-wing pressure groups has petitioned the court to stay its decision until after the November elections, it appears likely that gay couples will be permitted to marry within the next two or three weeks. This is the first time that a majority of citizens of a state have favored gay marriage. In the event that the court allows such marriages to proceed, voters will be faced with the prospect of dissolving existing gay marriages in November – a very different matter from prohibiting such marriages from being solemnized in the first place.<br /><br />It remains to be seen whether those Californians who know gay couples will vote to dissolve the marriages of their friends, family members, and colleagues. Regardless of the outcome, political commentators believe that this reflects a turning point in relationships between gay and heterosexual Americans.<br /></span></div><div align="justify"> </div><div align="justify"><br /><span style="font-family:verdana;"><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong> </span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-70222073538723417672008-05-29T20:12:00.003+01:002009-03-06T13:26:11.439+00:00California Sees the Light<div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Social and cultural conservatives, spearheaded by the religious right, are frightened, furious and disgusted by the May 15 decision of the California Supreme Court, in which decision this court held that the California state constitution prohibits the denial of marriage licenses to gay couples (<em><strong>in re Marriage Cases</strong></em>, S147999). Gay and lesbian Americans, on the other hand, met this long-anticipated decision with delight, jubilation, and glee, leading one conservative to compare their reaction to “Visigoths dancing in the ruins of Rome” – a patently offensive comparison in the eyes of most gay people and many heterosexuals, not all of whom oppose gay marriage.<br /><br />Organizations such as the “<strong>American Family Association</strong>” (<strong>AFA</strong>), “<strong>Focus on the Family</strong>,” (<strong>FOTF</strong>), and the “<strong>Family Research Council</strong>” (<strong>FRC</strong>) applaud efforts to amend the California state constitution to codify the ban on gay marriage at the state constitutional level; a measure to do this may appear on the ballot in November, and polls initially indicated that the outcome could result in this victory for marriage equality being short-lived. However, the analysis undergirding this decision cannot be annulled by such an amendment; such a measure may invalidate the court’s holding, but cannot invalidate the court’s reasoning. This is important, because (as will be discussed) the California Supreme Court became perhaps the second state high court in the nation to conclude that gay Americans constitute a “suspect class” for the purposes of state equal protection analysis. Days later, the US Court of Appeals for the Ninth Circuit became the first federal appeals court in the nation to conclude that gay Americans may constitute a “suspect class” for the purpose of US Constitutional equal protection analysis; a three-judge panel of this Court decided, unanimously, that the military’s categorical ban on gay men and lesbians serving in the Armed Forces cannot be sustained in the light of the US Supreme Court’s decision in <em><strong>Lawrence v. Texas</strong></em>, 539 U.S. 558 (2003) (in which decision the Court struck down all state “sodomy” statutes as applied to gay sex acts performed in private between consenting adults for non-commercial purposes, holding that these statutes violated the Constitution’s guarantees of substantive fairness under the Due Process Clause). The latter development may well be far more significant than the California gay marriage development, for reasons that will be discussed in a later essay. Sufficeth to state that this panel of the Ninth Circuit meticulously analyzed what the US Supreme Court actually <em><strong>did </strong></em>in Lawrence as opposed to what the Court <em><strong>said</strong></em>, to arrive at the conclusion that the US Supreme Court employed a form of heightened scrutiny in <em><strong>Lawrence</strong></em> (see <em><strong>Witt v. Dept. of the Air Force</strong></em>, No. 06-35644 (May 21,2008)).<br /><br />(See </span><a href="http://lawprofessors.typepad.com/laborprof_blog/files/witt_v_air_force_0635644.pdf"><span style="font-family:verdana;">http://lawprofessors.typepad.com/laborprof_blog/files/witt_v_air_force_0635644.pdf</span></a><span style="font-family:verdana;"> for the actual panel decision).<br /><br />Some conservatives have expressed (groundless) fears that churches will be forced to recognize gay marriages against their religious tenets. At the outset, it should be noted that no church could ever be required to perform gay marriages. The specter of churches being forced to perform gay marriages against their religious tenets as an argument against the recognition of gay marriage is a classic example of the “straw man” argument. Just as no church in the nation is required to perform marriages of previously divorced people, or of people who are not members of that church, so too will no church ever be forced to perform gay marriages. Conservatives should rest assured that the Free Exercise Clause of the First Amendment ensures that churches are (and will remain) free to determine who they may and may not marry. I know of no gay rights activist (or of any gay person) who wishes to force churches to recognize gay marriage. In fact, one of the principle “talking points” advanced by gay rights activists during the debate about gay marriage stresses the fact that heterosexual marriages may be performed with or without the religious ceremony that so many people love; many couples choose to get married by the appropriate official at City Hall rather than in church, and this will apply to gay marriages too. Anti-discrimination statutes that include sexual orientation as a characteristic that may not be taken into consideration in housing, employment, and access to places of public accommodation almost always include an exception for religious institutions; indeed, such an exception is required in order for these statutes to pass constitutional muster.<br /><br />What is noteworthy about the majority opinion in the California case (<em><strong>in re Marriage Cases</strong></em>, S147999 (May 2008)) is the degree of research and scholarship that was reflected in this decision. The majority made numerous references to California case law, and clearly researched this issue at considerable length. This was reflected in the opening words of the dissent authored by Justice Baxter, who wrote that “The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case.” Sadly, however, three Justices remained wedded (no pun intended) to the tautological and conclusory reasoning adopted by the state (as well as by the majority in the New York gay marriage case (<em><strong>Hernandez v. Robles</strong></em>, 855 N.E.2d 1 (N.Y. 2006). 7 N.Y.3d 338), in which the state prevailed and the gay plaintiffs lost).<br /><br />The California decision held that the prohibition of gay marriage violated both the due process and the equal protection guarantees of the state constitution. The case rested entirely on state constitutional law, thereby ensuring that the judgment cannot be appealed to the US Supreme Court (a decision resting entirely on state constitutional analysis may not be reviewed by the US Supreme Court; indeed, a state supreme court decision may only be reviewed by the US Supreme Court to the extent that the state court decision involves US constitutional or statutory adjudication).<br /><br />The majority opinion made short work of the tired argument that same-sex marriage should not be permitted because same-sex marriage has never been permitted. The majority pointed out that this is not analysis – this is merely a restatement of the issue presented by the plaintiffs. The majority framed the issue not as being whether the state constitution grants a right to “same-sex marriage,” but instead in terms of whether the state constitution granted gay people the right to marry. These are entirely different issues. The majority did not frame marriage in predefined terms as the union of only a man and a woman; it identified marriage as the union of two people who love each other and who wish to enter into the legal and social commitments associated with the institution of marriage, and then asked whether there was any reason that gay couples should not be permitted to enter into this union in the same manner as is currently done by heterosexual couples.<br /><br />The identification of fundamental rights frequently lies at the heart of due process analysis. In federal constitutional jurisprudence, fundamental rights are often identified as those rights “implicit in the concept of ordered liberty” (see <em><strong>Palko v. Connecticut</strong></em>, 302 U.S. 319 (1937)); they involve principles of justice “rooted in the traditions and conscience of our people” (see <em><strong>Snyder v. Massachusetts</strong></em>, 291 U.S. 97 (1934)); they are rights which are such that “neither liberty nor justice would exist if they were sacrificed” (<em><strong>Palko</strong></em>, supra). The California Supreme Court embarked on a similar analysis of rights recognized as fundamental through interpretation of the California state constitution. However, the California Supreme Court also recognized that while fundamental rights are often rights that have been recognized for lengthy periods of time, historical recognition of such rights is not the only issue considered in their identification. This is somewhat akin to the US Supreme Court’s analysis in <em><strong>Lawrence v. Texas</strong></em>, 539 U.S. 558 (2003) (this decision invalidated all state “sodomy” statutes as applied to sexual conduct between consenting adults in private settings for non-commercial purposes); in <em><strong>Lawrence</strong></em>, the US Supreme Court noted an “emerging awareness” that liberty grants adults a substantial degree of protection in deciding how to conduct their private lives in matters pertaining to sex.<br /><br />The <em><strong>Lawrence </strong></em>Court made it clear that rights recognized under the Due Process Clause of the Fourteenth Amendment are not limited only to the rights described above, noting that "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry" (cited from <em><strong>County of Sacramento v. Lewis</strong></em>, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)). The California Supreme Court cited from relevant California case law to arrive at the same conclusions as those arrived at by the US Supreme Court in its due process jurisprudence, reaching the same result with respect to the identification and recognition of fundamental rights. The California constitution also contains an explicit privacy clause, which has allowed the state courts to develop due process analysis in a manner analogous to that in which the US Supreme Court has developed due process analysis (a long line of case law rests on this development – see, e.g. <em><strong>Meyer v. Nebraska</strong></em>, 262 U.S. 390 (1923), <em><strong>Skinner v. Oklahoma</strong></em>, 316 U.S. 535 (1942), <em><strong>Griswold v. Connecticut</strong></em>, 381 U.S. 479 (1965), <em><strong>Eisenstadt v. Baird</strong></em>, 405 U.S. 438 (1972), <em><strong>Loving v. Virginia</strong></em>, 388 U.S. 1 (1967), and of course <em><strong>Lawrence </strong></em>(supra)). The California Supreme Court framed the issue as one of whether or not gay people should be able to exercise an already recognized fundamental right (the right to marry), rather than whether the court should recognize a new fundamental right to “same-sex marriage.”<br /><br />In support of this paradigm, the California Supreme Court referred to <em><strong>Perez v. Sharp</strong></em>, 32 Cal.2d 711 (1948), in which decision this court invalidated the California “anti-miscegenation” statute, becoming the first state in the nation to invalidate such a statute (the US Supreme Court invalidated all such statutes 19 years later when it handed down <em><strong>Loving v. Virginia</strong></em>, 388 U.S. 1 (1967)). <em><strong>Perez </strong></em>was handed down by a deeply divided court, as was the case with respect to <em><strong>in re Marriage Cases</strong></em>, supra (the case under discussion). Just as the right to marry should not depend on an individual’s race, the court argued that it should not depend on an individual’s sexual orientation. The state countered with the argument that “domestic partnerships” already provided gay couples who entered into these relationships all of the substantive rights of marriage – however, the court correctly noted that the reservation of “the historic designation of ‘marriage’” exclusively for opposite-sex couples posed a serious risk of denying to gay couples in substantively identical relationships equal dignity and equal respect.<br /><br />The court then turned to the assertion that the existing marriage statute was invalid under a state equal protection analysis. Whereas the US Supreme Court recognizes three levels of judicial review in cases implicating infringements of the Equal Protection Clause of the Fourteenth Amendment, the California state courts recognize only two levels of judicial review in cases implicating infringements of the California constitution’s equal protection clause.<br /><br />Most California statutes challenged under the equal protection guarantee are reviewed under the rational basis standard, which is recognized by both state and federal courts; under this deferential standard of review, the burden falls on the plaintiff to establish that the challenged statute furthers the promotion of absolutely no legitimate state interest, or that there is no rational relationship between the putative state interest and the classification drawn by the challenged statute (most, but not all, statutes will survive scrutiny under this standard of review – notable exceptions include <em><strong>Romer v. Evans</strong></em>, 517 U.S. 620 (1996); <em><strong>City of Cleburne, Texas v. Cleburne Living Ctr., Inc.</strong></em>, 473 U.S. 432 (1985); and <em><strong>United States Dept. of Agriculture v. Moreno</strong></em>, 413 U.S. 528 (1973)).<br /><br />Statutes that draw classifications on the basis of characteristics such as race or sex are reviewed under “strict scrutiny” by the California state courts; statutes that draw classifications on the basis of race are reviewed under “strict scrutiny” by the US Supreme Court (and other federal courts), whereas statutes that draw classifications on the basis of sex are reviewed under “quasi-strict scrutiny” by the US Supreme Court (and other federal courts) (see <em><strong>United States v. Virginia</strong></em>, 518 U.S. 515 (1996); <em><strong>Frontiero v. Richardson</strong></em>, 411 U.S. 677 (1973)). “Strict scrutiny” is a much more demanding standard of review under both state and federal constitutional jurisprudence; in federal equal protection jurisprudence, a statute will only survive “strict scrutiny” if it is shown to promote a “compelling” state interest, and if it is also shown that the differential treatment promotes that interest in the “least restrictive” manner possible with respect to the right infringed; the statute must sweep no more broadly than is absolutely necessary (this is referred to as “narrow tailoring.”) Federal case law on point includes <em><strong>Korematsu v. United States</strong></em>, 323 U.S. 214 (1944), <em><strong>McCleskey v. Kemp</strong></em>, 481 U.S. 279 (1987), and <em><strong>Regents of Univ. of California v. Bakke</strong></em>, 438 U.S. 265 (1978). Under California equal protection constitutional adjudication, a statute will only survive “strict scrutiny” if it is shown to promote a “compelling” state interest, and if it is also shown that the differential treatment is both reasonably related to and “necessary” to promote the interest in question. Strict scrutiny is only applicable, under both federal and state constitutional adjudication, if the statute in question adversely impacts members of a “suspect class” or if the statute in question adversely impacts the exercise of a “fundamental” right.<br /><br />The California Supreme Court was faced with an issue of first impression under California law – whether gay men and lesbians constitute a “suspect class” for the purposes of state equal protection analysis.<br /><br />Members of the group in question must satisfy several of a number of criteria in order to be identified as members of a “suspect class” under both federal and state constitutional analysis. These criteria include (but are not limited to) a history of past persecution; persecution based on the presence of an “immutable” characteristic possessed by members of that class; persecution based on a characteristic that does not relate to the ability of members of that group to contribute to society; relative political powerlessness; and small size of the group relative to larger society. Other language that has been noted includes membership in a “discrete and insular minority” (see <em><strong>United States v.Carolene Products Co.</strong></em>, 304 U.S. 144 (1938) (Footnote 4). The state supreme court held that gay men and lesbians are a “suspect class” for the purposes of equal protection analysis, and that classifications on the basis of sexual orientation are thus “suspect,” requiring that any statutes that classify on this basis be subject to “strict scrutiny.”<br /><br />It is important to note that not all of these criteria have to be satisfied in order for the group in question to be accorded “suspect class” status under both federal and state equal protection jurisprudence. The California Supreme Court noted that religion is certainly not an “immutable” characteristic, yet all religious groups are “suspect classes” under federal and state constitutional jurisprudence. The majority held that gay men and lesbians constitute a “suspect class” under state constitutional analysis. In arriving at this determination, the majority noted that sexual orientation is, at the very least, highly resistant to change; the court also noted that the characteristic in question is one so central to the identification of members of the class in question that they should not <em><strong>have </strong></em>to change this characteristic in order to receive the benefits of this standard of review.<br /><br />In holding that gay people constitute a “suspect class,” California became perhaps the second state high court to in the land to make this determination. The Hawaii Supreme Court made a similar determination in <em><strong>Baer v. Miike</strong></em>, 910 P.2d 112 (Hawaii 1996) – in this case, the Court upheld the denial of marriage licenses to gay couples after the voters amended the Hawaii constitution to codify marriage, at the state constitutional level, as being a union of one man and one woman only. It is important to note that gay people remain a “suspect class” in the eyes of the state courts of Hawaii, notwithstanding the state constitutional amendment that forced the trail court to deny marriage licenses to gay couples, and that forced the state supreme court to uphold the denial of marriage licenses to gay couples. This has important ramifications in that any state statute in Hawaii that classifies on the basis of sexual orientation, to the detriment of gay people, must be subjected to “strict scrutiny.”<br /><br />The hard right is furious with the California Supreme Court for its decision in this landmark case, and is mounting a drive to amend the state constitution to prohibit the recognition of same-sex marriages in November of this year. It is by no means clear that this initiative will pass. Should the court refuse to stay its decision, gay couples will start marrying three weeks from now. It is one thing for voters to pass an anti-gay marriage amendment that has no direct impact on gay and lesbian citizens who have never been permitted to marry, but an entirely different matter to vote to dissolve existing marriages.<br /><br />Most Californians know people who are gay; while the hard right will certainly do everything in its considerable power to pass such an amendment, it is not clear whether the citizens, confronted with gay couples who have married and who have been married for five months, will vote to dissolve those marriages. Clearly, the future of this decision lies in the hands of gay rights activists and ordinary gay people in California, who should fight to preserve this historic victory and to ensure that California remains the second state to recognize gay marriage in full.<br /><br />Two down, with 48 to go.<br /></span><br /><br /><span style="font-family:verdana;font-size:130%;"><strong>PHILIP CHANDLER</strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-77772571476289993922008-03-11T19:09:00.003+00:002009-03-06T13:27:37.702+00:00Fear and Loathing in Florida......<div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Ponce de Leon is a small town in the Northwest Florida Panhandle in Holmes County, not far from the Alabama state line, with a population of roughly 2,200. This town is billed as an idyllic rural enclave located half way between Tallahassee on the east, and Pensacola on the west. This town’s Web site describes Ponce de Leon as retaining “a rustic charm of beauty and tranquility, all its own [sic].” Some people believe that the Spanish explorer, Juan Ponce de Leon, may have searched for the Fountain of Youth in this area. Whether or not this is true is a matter of historical conjecture; what is not a matter of conjecture, however, is the fact that the Holmes County School Board (which has jurisdiction over Ponce de Leon High School) has besmirched one of the core ideals to which Americans claim to aspire.<br /><br />Heather Gillman is an eleventh grade student at Ponce de Leon High School. Heather identifies as heterosexual, but is a staunch supporter of her gay friends and acquaintances. She expresses her support for gay Americans by wearing T-shirts carrying slogans such as “Gay? Fine By Me,” “I Support My Gay Friends,” and “God Loves Me Just the Way I Am,” along with stickers bearing rainbows and pink triangles.<br /><br />David Davis is the principal of Ponce de Leon High School. High school principals are generally considered to be pillars of the community, alongside sheriffs, bank managers, town clerks, teachers, firefighters, and mayors. Davis, however, appears to have transcended all of these figures by managing to travel backwards in time – quite an accomplishment for a mere high school principle – to the 1950s.<br /><br />With the backing of the Holmes County School Board, Davis prohibited all students from displaying such messages of support. Any student who so much as utters a single word supporting the rights of gay people is subject to suspension. Davis has already suspended several students for wearing gay-themed clothing (including a rainbow-colored belt). Furthermore, Davis interrogated a student (named “Jane Doe” for legal purposes) who told a teacher’s aide that she was a lesbian and that she was being taunted by other students. Davis summoned Doe into his office in September 2007 and instructed Doe “not to be gay” and not to tell anybody that she is gay. Davis also told Doe not to mix with or talk to any of the “middle school” girls, and Davis further opined that “gay pride” was a disgrace to the school; that being gay was “against the Bible;” and that Doe should not “go down that road.” Davis also declared that students who wear gay-supportive T-shirts or other symbols expressing support for the rights of gay people are members of a “secret society” and are members of an “illegal organization.” The school board defined an “illegal organization” as “any attempt to use the school day for activities that are not school related or school sponsored.”<br /><br />Heather Gillman defied both Davis and the school board, filing a lawsuit in Federal District Court against Davis and against the school board under <strong>42 U.S.C. section 1983</strong>. The lawsuit contends that defendants Davis and the school board violated Gillman’s First Amendment rights to freedom of expression and association, as made binding upon the states by the Due Process Clause of the Fourteenth Amendment. The lawsuit contends that the defendants’ policy with respect to “illegal organizations” and membership in a “secret society” is unconstitutional, both as applied and on its face. More specifically, the complaint asserts that the policy is void for vagueness, overbroad, and unconstitutional.<br /><br />Only in America – in the year 2008 – could such a ludicrous spectacle unfold in a court of law. As other Western nations become increasingly accepting of their gay citizens, and as barriers to equal treatment of gay people fall in nation after nation, the US stubbornly appears to move full tilt <strong><em>backwards</em></strong> with respect to this particular issue.<br /><br />There is absolutely no question that both Davis and the school board will lose – big time. Both case law and common sense are firmly on the side of the students, who are being deprived of their right to political expression, as guaranteed them by the First Amendment to the US Constitution. This deprivation occurs under color of state law, thus permitting the plaintiffs to file suit under <strong>42 U.S.C. section 1983</strong> and granting the Federal District Court subject matter jurisdiction under <strong>28 U.S.C. section 1331</strong> (federal question) and <strong>28 U.S.C. section 1343(a)(3)</strong> (civil rights).<br /><br />On June 26, 2003, the US Supreme Court handed down <strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003), declaring that all state statutes prohibiting people from having gay sex are unconstitutional as applied to private sexual activity between consenting adults for non-commercial purposes. The Court made it clear that gay people are fully entitled to respect for their private lives, and that the state cannot demean the dignity of gay Americans merely because of moral disapproval. In sweeping terms, the Court apologized for an earlier ruling (<strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986)) in which the Court had reached the opposite conclusion, thereby permitting the states to criminalize gay people for having sex, even in the privacy of their own homes. The <strong><em>Lawrence</em></strong> Court made it clear that it had failed, utterly, to treat gay Americans with the respect that they deserved as members of a legitimate minority within the framework of a representative democracy, and the Court bluntly announced that “<strong><em>Bowers</em></strong> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <strong><em>Bowers v. Hardwick</em></strong> should be and now is overruled.”<br /><br />The <strong><em>Lawrence</em></strong> Court could have overruled <strong><em>Bowers</em></strong> using an equal protection analysis, and many legal commentators were surprised by the Court’s decision to go further. Section I of the Fourteenth Amendment declares that no state may “deny to any person within its jurisdiction the equal protection of the laws,” and most legal scholars believed that the Court would limit its analysis, in <strong><em>Lawrence</em></strong>, to the equal protection argument advanced by the gay plaintiffs. However, the Court went much further, holding that laws criminalizing same-sex sexual activity violated the Due Process Clause of the Fourteenth Amendment.<br /><br />There are no “secret societies” in 21st century America. Furthermore, neither Heather Gillman nor her fellow students attempted to hide their political views from the school authorities; <strong><em>to the contrary</em></strong>, they made it extraordinarily clear that they believed in the right of the lesbian student (and gay students more generally) to receive an education without being subjected to harassment and abuse. There is nothing “illegal” about a group of students protesting such harassment, whether limited to the school context or expanded to embrace broader social goals. In <strong><em>Tinker v. Des Moines Independent. Community. School. District.</em></strong>, 393 U.S. 503 (1969), the US Supreme Court upheld the right of students to wear black armbands as a gesture of protest against the war in Vietnam. Then, as is the case now, the students were not disruptive; in wearing armbands, they were “quiet and passive” and “did not impinge upon the rights of others.” Furthermore, the students in <strong><em>Tinker</em></strong> did not act in a manner that “materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school” (cited from <strong><em>Burnside v. Byard</em></strong>, 363 F.2d. 744,749 (1966)). The students at Ponce de Leon High School are not acting in a manner that in any way interferes with the administration of appropriate discipline at the school.<br /><br />The US Court of Appeals for the Eleventh Circuit, which will hear any appeal from a decision handed down by the US District Court, has addressed a very similar issue, in the context of college education. In April 1997, this intermediate appellate court declared unconstitutional, in <strong><em>Gay Lesbian Bisexual Alliance v. Pryor</em></strong> (docket number <strong>96-6143</strong>), an Alabama state statute that forbad colleges and universities from using public funds to “sanction, recognize, or support” the activities or existence of any group or organization that “fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of <strong>Sections 13A-6-63</strong> to <strong>13A-6-65</strong>, inclusive.” The Alabama statute went further, prohibiting colleges and universities that received public funding from permitting or encouraging its members to provide information or materials explaining how such acts may be performed. Sodomy was defined as ‘any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.” Thus, oral sex between unmarried persons was defined by the Alabama criminal code as a form of sodomy. This statute was clearly aimed at the gay and lesbian community, and was intended to prevent colleges and universities that received public funding from supporting the activities of any group or organization that promoted the so-called “homosexual lifestyle.”<br /><br />It is well established that the First Amendment protects advocacy to break a law. With respect to such advocacy, this protection is limited in one important respect – in <strong><em>Brandenburg v. Ohio</em></strong>, 395 U.S. 444 (1969), the US Supreme Court held that the only forms of advocacy or expression that may be criminalized are those forms of advocacy directed to “inciting or producing imminent lawless action and [that are] likely to incite or produce such action” [emphasis added].<br /><br />The First Amendment therefore protects the right of any person, gay or heterosexual, to advocate breaking any law that prohibits same-sex or opposite-sex “sodomy” (as defined above). This conservative Court of Appeals held that the Alabama statute discussed and struck down was not capable of a narrowing construction that would have enabled the state to enforce it against speech directed to such incitement and likely to produce such action. The Alabama statute was broad by its very terms (referring to the promotion of a “lifestyle or actions”) – hence, it was not possible to argue that the statute merely impinged upon speech falling outside the protective ambit of the First Amendment, as described by <strong><em>Brandenburg</em></strong>. The appellate court also noted that the Alabama statute constituted viewpoint discrimination – something that is prohibited within the context of a limited public forum (such as those fora created by state universities and colleges). A state university may determine what subjects are appropriate for discussion in such a forum, but may <strong><em>not</em></strong> prescribe or proscribe the positions that students may choose to take with respect to those subjects (see <strong><em>Rosenberger v. Rector and Visitors of the University of Virginia</em></strong>, 515 U.S. 819 (1995)).<br /><br />The appellate court also upheld the district court’s determination that the statute was unconstitutional on its face. A statute is deemed to be unconstitutional on its face if there are no sets of circumstances under which application of the statute in question could ever be found to be constitutional; in other words, a statute is unconstitutional on its face if every application of that statute, in every set of circumstances, would yield an unconstitutional result (see <strong><em>US v. Salerno</em></strong>, 481 U.S. 739 (1987), where this tent of statutory construction was expressed, albeit in dicta). Facial invalidation of a statute is “strong medicine,” and the Court of Appeals made it clear that such invalidation should only occur if the reviewing court is convinced “that the identified overbreadth is incurable and would taint all possible applications of the statute.” Generally, a statute should “be declared invalid to the extent that it reaches too far, but otherwise left intact.” In First Amendment jurisprudence, a statute that is challenged on its face will be upheld if it is “readily susceptible” to a narrowing construction that would make it constitutional. The key phrase to consider is the phrase “readily susceptible” – a federal court will not rewrite a state statute to conform it to constitutional requirements unless the state statute in question is readily susceptible to the proposed limitation. The District Court held that the Alabama statute was not readily susceptible to a narrowing construction that would render it constitutional, and the Court of Appeals agreed with the District Court.<br /><br />Note that the above analysis would be applicable were gay sex to be illegal in the State of Florida, as was the case in some 14 states before the US Supreme Court handed down <strong><em>Lawrence</em></strong> (supra). Here, school principal Davis and the Holmes County School Board have attempted to gag a group of students who are in no way advocating the violation of any law. These students are merely attempting to express their support of the right of one of their members to be treated decently and in a manner consistent with the educational mission of the school. Both Davis and the School Board have engaged in the worst form of McCarthyism – declaring that those students who support the rights of gay people are members of an “illegal organization” and members of a “secret society.”<br /><br />We are not living in the 1950s, much as many right-wing commentators would like to see a return to the values that defined that era in American political life. Joseph McCarthy – a vicious, thuggish, bullying drunk – died shortly after his disgrace and censure by the US Senate. We live in a diverse, pluralistic society in which gay people have won some measure of acceptance, in both state and federal political spheres. Notwithstanding the rantings of jurists such as Associate Justice Antonin Scalia and Associate Justice Clarence Thomas, the US Supreme Court has declared that gay Americans are entitled to respect for their private lives, and that the constitutional guarantees of substantive fairness and the equal protection of the laws are available to members of this group, just as they are available to members of any other group of law-abiding citizens. Principal Davis and the Holmes County School Board have besmirched the values that are integral to the American political experience. Twelve years ago, another school board and another school principal disregarded these values, causing the US Court of Appeals for the Seventh Circuit to reinstate a lawsuit filed by Jamie Nabozny against the Ashland, Wisconsin School District and against school principal Mary Podlesny; the school authorities literally laughed at Nabozny’s pleas for help after he was repeatedly beaten up, shoved into a urinal, and mock-raped by several homophobic bullies (see <strong><em>Nabozny v. Podlesny</em></strong>, 92 F.3d 446 (1996)). Just as Davis told Jane Doe “not to be gay,” Mary Podlesny told Jamie Nabozny that he should expect such vicious taunts and physical abuse if he “insisted” on being openly gay. Just as three judges of the US Court of Appeals for the Seventh Circuit expressed their disgust, referring to the defendant’s arguments as “indefensible,” so too will three judges of the US Court of Appeals for the Eleventh Circuit express their disgust when this case reaches them and when they learn about the “secret society” – members of whom comprise somewhere between 4% and 10% of the American population.<br /><br /><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-68039275544844768572007-09-15T20:15:00.003+01:002009-03-06T13:28:30.850+00:00I feel, therefore I hate......<div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">It has long been argued by many psychologists, psychiatrists, and other mental health professionals that homophobia may (at least in some cases) reflect deep-seated, unacknowledged feelings of same-sex sexual attraction on the part of those men and women who engage in homophobic conduct and who participate in verbal and physical attacks against openly gay men and lesbians. This argument borrows heavily from the Freudian concepts of “<strong><em>projection</em></strong>” and “<strong><em>reaction formation</em></strong>”. When a person has feelings about himself or herself that make that individual feel very uncomfortable, that person may assign these feelings to a convenient external target (<strong><em>projection</em></strong>), thus enabling the individual to evade the implications of any self-analysis that the individual would otherwise be forced to undertake. When these impulses are extremely powerful and evoke deep psychological discomfort, the subject may react to these impulses by creating an antithetical construct that serves to block this deep discomfort (<strong><em>reaction formation</em></strong>). In Freudian terminology, the subject creates an antithetical construct to block the repressed cathexes (the libido’s charges of energy). Thus, a person who harbors homosexual impulses and desires may project those impulses onto openly gay men and lesbians, and may repress these desires by manufacturing a powerful hatred of all homosexuals. This theory is reflected in English literature – the expression “The lady doth protest too much, methinks” (a statement made by Queen Gertrude in Shakespeare’s “Hamlet”) has come to stand for the assertion that the subject’s ardent denial of a proposition may really reflect an attempt to hide the embarrassing truth. The Bard of Avon possessed deep wisdom, also reflected in the advice that Polonius gave to his son Laertes (from “Hamlet”) “To thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man.” Are homophobic men and women really reacting negatively to homosexuality in others, or are they in fact desperately (and subconsciously) reacting to their own homosexual desires and impulses?<br /><br />One of the most serious problems associated with psychodynamic theories is that they do not readily lend themselves to empirical testing, and have, for the most part, been unfalsifiable and hence untestable. However, a serious attempt was made to answer the above question by researchers from the University of Georgia in 1996.<br /><br />Researchers <strong>Henry Adams</strong>, <strong>Lester Wright Jr.</strong>, and <strong>Bethany Lohr</strong> of the Psychology Department at the University of Georgia conducted a study in which they assessed the levels of sexual arousal expressed by subjects drawn from two groups of men who viewed heterosexual, lesbian, and gay male pornography. The study involved a total of 64 men between the ages of 18 and 31. These men comprised two groups – homophobic men (the experimental group) and nonhomophobic men (the control group). The subjects were assigned to these groups based on their responses to the “<strong><em>Index of Homophobia</em></strong>” (a 25-question assessment tool that yields a score of between zero and 100 to determine the extent to which men display characteristics indicative (as explained by the researchers) of the levels of “dread” a person experiences “when placed in close quarters with a homosexual.”) In addition, the subjects were administered the self-rated “<strong><em>Aggression Questionnaire</em></strong>” to determine whether there was a correlation between anti-gay attitudes and overall measures of aggression.<br /><br />Of the 64 men studied, 35 men exhibited strong homophobic traits whereas 29 men did not. All of the men described themselves as exclusively heterosexual, and all of the men stated that they had never engaged in any form of homosexual activity.<br /><br />Each subject viewed videotapes displaying three types of sexually explicit activities – heterosexual, lesbian, and gay male sexual activity. The researchers included lesbian sexual activity because it had proven to be “highly sexually arousing to heterosexual men and is a better discriminator between heterosexual and homosexual men than other stimuli”. (Any person who is even vaguely familiar with heterosexual American norms knows that this statement is profoundly accurate!) To compensate for any effect that the order in which the tapes were viewed could have had an impact on the results, the orders in which the tapes were shown to the subjects were randomly varied. The videotapes were shown to the subjects individually, in a soundproofed room. Each subject was hooked up to a penile plethysmograph. A plethysmograph is an instrument that measures changes in volume within an organ or whole body, usually as the result of blood flowing into that organ or whole body; a penile plethysmograph measures changes in blood flow into and out of the penis using a mercury-in-rubber ring placed around the shaft of the subject's penis to measure changes in circumference, thereby providing researchers with a truly objective and accurate measure of sexual arousal. By showing the subjects these videotapes in random order, individually, in a soundproofed room, relying on readings of sexual arousal from an instrument that objectively detected tumescence as opposed to relying on self-reports of sexual arousal, the researchers eliminated several potential confounding variables (such as embarrassment at taking this test in front of peers, effects resulting from the sequence in which the videotapes were shown, and inaccurate self-reporting about the extent to which the subjects were actually aroused by the different forms of sexual activity that they observed).<br /><br />After watching the videotapes, the men were all asked about the extent to which they were aroused during their viewings of each of the three forms of sexual activity. This provided the researchers with subjective responses that they could compare to the objective readings obtained from the penile plethysmograph.<br /><br />When asked to give their own subjective assessment of the degree to which they were aroused whilst watching the three videotapes, the men in both groups gave answers that correlated significantly with the results of the objective physiological assessment (the results reported by the penile plethysmograph), <strong><em>with one marked exception</em></strong>: the homophobic men gave verbal responses that diverged sharply from the physiological responses reported by the penile plethysmograph, in that their verbal responses significantly underreported the degree of arousal that they experienced when watching the videotape showing gay male sexual activity.<br /><br />Men in both groups were aroused to about the same extent when viewing the videotape showing heterosexual sexual activity and when viewing the videotape showing lesbian sexual activity. There was, however, a significant difference in the degree of sexual arousal exhibited by men from the two groups when viewing the videotape showing gay male sexual activity. In the words of the researchers, “The homophobic men showed a significant increase in penile circumference to the male homosexual video, but the control [nonhomophobic] men did not”.<br /><br />A more detailed breakdown of the results revealed that while 66% of the nonhomophobic men (from the control group) showed no significant arousal whilst watching the gay male videotape as measured by tumescence, only 20% of the homophobic men showed little or no evidence of sexual arousal as measured by tumescence. Similarly, while only 24% of the nonhomophobic men showed definite tumescence while watching the videotape showing gay male sexual activity, 80% of the homophobic men showed “moderate to definite tumescence” while watching this videotape.<br /><br />Plethysmographs do not lie. However, it appears that an overwhelming percentage of the homophobic men did lie.<br /><br />There was no relationship between homophobic attitudes and overall aggression (as measured by the “<strong><em>Aggression Questionnaire</em></strong>”).<br /><br />This study was limited to men, due in part to difficulties associated with determining the extent to which women are sexually aroused. Extrapolation of the conclusions of this study to lesbians and to outwardly heterosexual women who harbor gay tendencies is dangerous for a number of reasons, not the least of which is the different set of dynamics that motivate women (heterosexual women have shown themselves, in poll after poll, to be less likely to harbor homophobic attitudes than are heterosexual men).<br /><br />What can be inferred from the results of this study?<br /><br />If one assumes that the plethysmograph really did measure sexual arousal in all of the subjects, then one unavoidable conclusion of this research is that the men from the experimental group (the homophobic men) were sexually aroused by the videotape showing graphic gay male sexual activity, whereas the men from the control group (the nonhomophobic men) were not sexually aroused by this activity. This supports the assertion that the overt anti-gay attitudes exhibited by the homophobic men did indeed serve as a “cover” (or “beard”) for their own desires to engage in gay sexual activity. A corollary of this conclusion is that those men in the control group (the nonhomophobic men) were secure in their sexuality and did not “need” to resort to expressions of homophobia. In short, one conclusion that may be drawn from this research is that overt expressions of homophobia do, in at least some cases, constitute forms of projection and reaction formation, and that overtly homophobic men may indeed, at least in some cases, suffer from internalized homophobia and self-hatred.<br /><br />(It should be noted that the researchers did propose one alternative hypothesis, which was dismissed by academic peers as highly unlikely. The researchers proposed that the increased blood flow to the penises of the homophobic men might have been a reflection of anxiety as opposed to sexual arousal. While this is possible, the writer knows of no link between anxiety and the attainment of erections! Indeed, anxiety has (in the writer’s opinion) precisely the opposite effect on male sexual physiology…)<br /><br />The results of this study were printed up in the highly prestigious “<strong><em>Journal of Abnormal Psychology</em></strong>”. It should be noted that this journal is one of the most influential and prestigious scientific journals in the field, and that the results of studies are not printed in this journal unless the studies meet a number of criteria of excellence. (In a different post, I have addressed the poor quality of the vanity journal which Paul Cameron has paid (by the page!) for his “studies” to be published.)<br /><br />This research is of more than academic significance. Up until fairly recently, many courts of law in the US tolerated the “gay panic” defense in those cases where ostensibly heterosexual men were accused of murdering gay men who made sexual advances towards them. This defense held that murders committed under these circumstances were reflections of the sexual ambiguity of the perpetrator, who was regarded as the true “victim” insofar as he was “forced” to kill the gay “provocateur” in order to reconcile himself to the true nature of his desires. This obscene inversion of the status of the victim and the perpetrator was actually tolerated throughout the US for many years. Matthew Shepard – the University of Wyoming college student who was robbed, pistol-whipped, beaten to a pulp, and then tied to a split-rail fence outside of Laramie, WY – was the victim of a savage gay bashing perpetrated by two Laramie-bred thugs (Aaron McKinney and Russell Henderson), both of whom advanced this defense when tried for Shepard’s murder (Shepard was found tied to the fence about 18 hours later, cut down, and taken to the hospital, where he died several days later without ever regaining consciousness). McKinney’s girlfriend, Kristen Price, told reporters that robbery was only one motive for the crime – according to Price, Shepard embarrassed the two perpetrators by telling them that he was gay and that “he wanted to get with Aaron and Russ”, setting the other patrons to “snickering.”<br /><br />The “homosexual advance” defense has been presented in courtrooms throughout the US to reduce murder charges to manslaughter, in cases where “self-defense” was shown and in cases where the killings took place in “the heat of passion”. Such defenses have even succeeded in cases in which the defendant <strong><em>actually had sex with the gay victim</em></strong> and then killed the gay victim. This defense is premised on the theory that a person with latent homosexual tendencies will react with extreme and uncontrollable anger when propositioned by a gay man, or immediately after having sex with a gay man. Even in cases where this defense is not explicitly presented at trial, the mere admission of the victim’s homosexuality has led juries to convict the defendant on the lesser of multiple charges, as though the victim was “asking for it” by his behavior or even by his mere existence (in much the same way that women who have been raped have been depicted in courtrooms throughout the US as having been “asking for it”).<br /><br />Juries have not been the only entities to display such bias. In 1988, in a case that drew national headlines and was reported by the three major television networks, Texas state court judge Jack Hampton, at the sentencing hearing of a man who was convicted of killing two gay men, handed down a 30-year sentence instead of the life sentence requested by prosecutors. In handing down the lenient sentence, Hampton made the following observation: “I don't much care for queers cruising the streets picking up teenage boys ...[I] put prostitutes and gays at about the same level ... and I'd be hard put to give somebody life for killing a prostitute."<br /><br />In 1987, Broward County (Florida) Circuit Judge Daniel Futch, presiding over the murder trial of a gay man named Daniel Wan (who was beaten up and killed outside of a bar by assailants who referred to him as a “faggot” as they kicked him to death and threw him up against a moving car), jokingly asked the prosecution at a pre-trial hearing: “That's a crime now, to beat up a homosexual?" When the prosecutor responded, "Yes, sir. And it's a crime to kill them”, the judge quipped, "Times really have changed." Although the judge apologized and maintained that he was joking, he was removed from the case.<br /><br />The societal implications of this mindset are chilling. Until gay people are <strong><em>accepted</em></strong> by mainstream US society – <strong><em>accepted</em></strong>, as opposed to tolerated – there will always remain a stigma associated with being gay. This stigma will continue to feed into the dynamic outlined in this article. Outwardly heterosexual men who have homosexual tendencies will continue to bury those feelings under a blanket of self-hatred, which in turn engenders overt expressions of homophobia (which can, in extreme cases, lead to the murder of gay men and lesbians). Some of the very courts that are tasked by society to bring gay-bashers to justice have, themselves, endorsed the behavior of the gay-bashers. In 1986, the US Supreme Court enshrined contempt for gay Americans into constitutional law, holding that the Due Process Clause of the Fourteenth Amendment did not grant to gay persons the right of sexual privacy (see <strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986)). This opinion was written in tones of sneering contempt. Fortunately, the US Supreme Court explicitly and bluntly reversed <strong><em>Bowers</em></strong> on June 26, 2003 (see <strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003), in which this Court actually apologized to gay Americans for its decision in <strong><em>Bowers</em></strong>, holding that “<strong><em>Bowers</em></strong> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <strong><em>Bowers v. Hardwick</em></strong> should be and now is overruled.”). While the outright reversal of <strong><em>Bowers</em></strong> will accomplish much to ensure that gay Americans are treated as equals in society, it takes more than a US Supreme Court decision to change the attitudes of a generation. </span><span style="font-family:verdana;"><strong>Study after study has shown that heterosexual Americans who know gay people personally are much less likely to be homophobic than are heterosexual Americans who claim not to know gay people personally.<br /></strong><br />It is for this reason that gay Americans have a responsibility both to themselves and to their community to live their lives openly and honestly. It is for this reason that those gay men and lesbians who remain closeted are in a position to advance both their own interests and the interests of the gay community more generally – simply by ending the lies and being themselves.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><strong><span style="font-family:verdana;font-size:130%;">PHILIP CHANDLER</span></strong></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-43882596671484398802007-09-02T10:21:00.002+01:002009-03-06T13:29:29.359+00:00Another Country......<p align="justify"><span style="font-family:verdana;"></span></p><p align="justify"><span style="font-family:verdana;"></span></p><p align="justify"><span style="font-family:verdana;">I am currently doing business in the UK, and am stunned by the difference between the manner in which the UK treats gay people and the manner in which the US treats gay people. Whereas gay people living in the UK receive respectful treatment and a modicum of fairness from both their government and their society, the US appears to be headed full tilt backwards with respect to this particular issue.</span></p><p align="justify"><span style="font-family:verdana;">Here in the UK, employment and other forms of discrimination based on sexual orientation are strictly prohibited; such discrimination is treated as severely as is discrimination on the basis of race or national origin. It is considered completely unacceptable to fire a person from a job at which that person excels merely because that person is gay. Furthermore, this is not a mere government objective; this is considered to be unacceptable by the people. Gay persons living in the UK may enter into “Civil Partnerships” which are the equivalent of marriage in all but name. Whereas only one state in the US (Massachusetts) permits gay marriage, Civil Partnerships are recognized throughout the UK. Gay marriage in Massachusetts is recognized at the state level only, thereby denying to gay couples in such marriages about 1,049 federally recognized benefits and privileges enjoyed by married heterosexual couples. Civil Partnerships in the UK grant to gay couples all of the rights and privileges of marriage at all levels. Several states in the US recognize gay marriage at the state level in all but name. These relationships are referred to as “Civil Unions” in Vermont, Connecticut, New Hampshire, and New Jersey, and as “Domestic Partnerships” in California, Hawaii, and Oregon. Although there has been progress in the US (a total of about eight states now grant to gay couples the privileges and benefits of marriage at the state level), this progress has been much slower and more halting than the progress realized by gay people living in the UK. (At the time of writing this, a state court in Iowa has just handed down a decision holding that the denial of marriage licenses to gay couples is violative of the Iowa state constitution; if this decision is upheld by the Iowa Supreme Court, the State of Iowa will be forced to recognize either gay marriage itself or some form of civil union as described above.)</span></p><p align="justify"><span style="font-family:verdana;">One reason for this is undoubtedly the lack of an organized evangelical right-wing movement here in the UK. Whereas fundamentalist “Christians” are still able to disease the cultural discourse in the US, there are far fewer people in the UK who tap into a fundamentalist Christian model and who consider it to be their duty to force their particular narrow, moralistic agenda onto the people of the UK. The full provisions of the <strong>Equality Act (Sexual Orientation)</strong> went into effect here in the UK a few months ago. Although exemptions exist for priests and ministers of religion, even religious organizations must abide by the provisions of this Act. Thus, a Catholic adoption agency that wishes to serve the public by providing children in need of homes to prospective adoptive couples must consider applications filed by gay couples who are capable, in terms of the requirements of adoption law, of giving loving homes to children in need of such homes. Several Catholic adoption agencies have actually shut themselves down in the face of this requirement, thereby depriving children in need of loving homes of the possibility of being adopted.</span></p><p align="justify"><span style="font-family:verdana;">The exemptions apply only to those members of religious organizations who are actual ministers of religion. Thus, no church can be forced to marry a gay couple, since such marriages invariably involve senior church officials. However, a church that matches children for adoption up with prospective adoptive parents cannot refuse to consider applications filed by gay couples, and must treat such applications on an equal footing with applications filed by heterosexual couples. One right-wing newspaper – the <strong><em>Daily Mail</em></strong> – complains about this, making explicit the (demonstrably false) assumption that a child fares better when raised by two people of the opposite sex (there is now an abundance of literature that shows that children raised by two same-sex parents fare just as well as children raised by two opposite-sex parents); but that is the extent of the protest against the “gay lobby.”</span></p><p align="justify"><span style="font-family:verdana;">Legislation that forces religious bodies to treat gay people in the same way as heterosexual people would be unthinkable in the US, by virtue of the fact that the US has a written Constitution; federal courts have established a massive body of case law dealing with the First Amendment rights of both people and churches. However, the lack of a written constitution permits Parliament in the UK to pass legislation that would have the above-cited impact on Catholic adoption agencies. In the US, such Catholic adoption agencies would be able to assert a First Amendment defense for the practice of excluding gay people as adoptive parents.</span></p><p align="justify"><span style="font-family:verdana;">Another difference between the UK and the US (in terms of popular culture) is the differing emphasis placed on marriage. In the UK, it is entirely reasonable and widespread for women to bring children up on their own, and for men and women to live together without getting married. The Conservative Party (also known as the Tory Party) wishes to re-emphasize the importance of marriage and the traditional family, but faces fierce opposition from figures in government who themselves are either divorced or who never married. David Cameron – the leading light of the opposition party (the Tories) – was flustered into silence recently when asked by a highly educated, intelligent woman who had risen through the political ranks and who was also a single mother, whether she should get married. The social culture in the UK is much more accepting of different family structures than is the social culture in the US.</span></p><p align="justify"><span style="font-family:verdana;">Together with legal acceptance of gay people has come cultural acceptance. Schools have implemented zero-tolerance anti-bullying campaigns that make it much easier for gay children to participate both socially and academically. Whereas gay boys in the US have to worry about getting themselves shoved into urinals by heterosexual bullies, gay boys in the UK are protected from such abuses by stringent anti-bullying campaigns that are taken seriously by both teachers and students alike. Quite simply put, it is not acceptable to harass and abuse a child in the UK merely because that child is gay or is perceived to be gay.</span></p><p align="justify"><span style="font-family:verdana;">Ironically, the progress that gay people have made in the UK can be explained to some degree by the extent to which gay people in the UK were previously hated, marginalized, shunned, and harshly treated by the law. Alan Turing – the mathematical genius who developed key concepts in computer science and whose contributions to the branch of mathematics dealing with encryption and code breaking enabled the British authorities to crack the Nazi Enigma machine and the Lorenz SZ 40/42 machine – was openly gay, and was arrested for “gross indecency” under Section 11 of the <strong><em>Criminal Law Amendment Act of 1885</em></strong> after he acknowledged having had a sexual relationship with a man in Manchester. Turing was unrepentant and open about his sexuality in an era and in a country in which homosexual acts were illegal and in which homosexuality itself was treated by psychiatrists as a mental illness, The alternative being a prison sentence, Turing was forced to undergo hormone “therapy” in which his body was pumped full of estrogen, causing him to grow breasts. Turing was found dead on 8 June 1954, apparently having committed suicide by biting into and eating part of an apple laced with cyanide. Although the cause of death was established by the autopsy as cyanide poisoning, the apple itself was never tested for cyanide, leaving open the question as to whether Turing had indeed committed suicide, was the victim of an accident (his mother vehemently asserted that Turing was careless in handling and storing dangerous chemicals), or was assassinated (his homosexuality was certainly perceived as a security risk). Oscar Wilde – the brilliant playwright, novelist, and poet – was convicted under the same statute on 25 May 1895 and was sentenced to two years’ hard labor (scholars agree that the prison sentence at Reading Gaol ruined Wilde’s health and contributed to his early death a mere two years following his release). Sex between men eventually became legal in the UK, but the age of consent for gay sex was set at 18, whereas the age of consent for heterosexual sex was set at 16. In July 2000, the <strong>European Court of Human Rights</strong> heard an appeal from a gay man from Yorkshire who had been prosecuted for engaging in group sex and who had been conditionally discharged for two years in November 1996 – the Court of Human Rights vacated his conviction, and the man received almost GBP 21,000.00 in damages and slightly over GBP 12,000.00 in costs. It is against this backdrop of harsh oppression that the law was finally modified to recognize the equality and dignity of the lives of gay citizens in the UK. Now, gay marriage is legal throughout the UK, at all levels, in all but name (mocking those “civil unions” in those US states that permit them). A gay man or woman may enter into a civil partnership with a citizen of another nation, and may sponsor that person into the UK in the same way that a man or woman may enter into a marriage with a citizen of another nation and sponsor that non-citizen into the country. The age of consent for gay sex is now the same as the age of consent for heterosexual sex (16).</span></p><p align="justify"><span style="font-family:verdana;">Another important difference -- a difference that resonates throughout the broader culture -- lies in the fact that the UK Armed Forces no longer discriminate against gay servicemembers. Whereas it was once legal to discharge a member of the Armed Forces merely for being gay, servicemembers in the UK are now no longer subject to such naked discrimination. In September 1999, the <strong>European Court of Human Rights</strong> held that the ban on openly gay men and women serving in the UK Armed Forces was a clear-cut breach of the <strong>Human Rights Convention</strong>. This unanimous ruing, handed down by judges in Strasbourg, held that the ban violated the privacy rights of gay men and women who wished to serve in the UK Armed Forces. In 2000, the UK officially ended its ban on openly gay personnel from serving in th Armed Forces, and firmly asserted that servicemembers could no longer be discharged merely for being gay. It is important to bear in mind the fact that legal discrimination against gay men and lesbians in the Armed Forces can be "borrowed" to justify other forms of government-sponsored discrimination against gay men and lesbians, as Boushka has noted elsewhere (see "<strong><em>Do Ask, Do Tell</em></strong>").</span></p><p align="justify"><span style="font-family:verdana;">It is indeed ironic that gay people have made so much progress in the UK, given the fact that the US was founded following a revolution in which the American colonies broke away from the UK in search of greater freedom. It is ironic in the extreme that gay sex in the US only became legal in all 50 states following the handing down, in 2003, of a US Supreme Court opinion (<strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003)) holding that state sodomy statutes violated the rights of gay Americans under the Due Process Clause of the Fourteenth Amendment (A.J. O’Connor’s concurrence relied not on the reach of the Due Process Clause, but on the protective ambit of the Fourteenth Amendment’s Equal Protection Clause to arrive at the same result). Just 17 years before <strong><em>Lawrence</em></strong> was handed down, the US Supreme Court mockingly dismissed a Due Process challenge to the Georgia sodomy statute filed by a man (Michael Hardwick) who had been arrested, but ultimately not prosecuted, for having oral sex with another man in the privacy of his own bedroom (see <strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986)). The Court, in <strong><em>Bowers</em></strong>, made the infamous assertion that the privacy challenge (grounded in the Fourteenth Amendment's Due Process Clause) mounted by Hardwick in response to his arrest for consensual oral sex was “at best, facetious.” That ruling is now history -- the <strong><em>Lawrence</em></strong> Court went to considerable pains to acknowledge that it had erred in handing down <strong><em>Bowers</em></strong>, opining that "[i]ts continuance as precedent [<strong><em>Bowers</em></strong>] demeans the lives of homosexual persons...<strong><em>Bowers</em></strong> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <strong><em>Bowers v. Hardwick</em></strong> should be and now is overruled."It is the fervent hope of this commentator that the overwhelming majority of the citizens of the US will, one day in the not too distant future, see their fellow gay Americans as equals, both before the bar of justice and in the eyes of broader society, just as the majority of the citizens of the US now reject the days of Jim Crow and have no desire to return to such a legally and morally destructive social order.<br /></span></p><p align="justify"><br /><span style="font-family:verdana;"><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong> </span></p>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-73161923851783457112007-07-31T20:57:00.002+01:002009-03-06T13:31:24.949+00:00Lies, Damned Lies, and Statistics...<div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><p align="justify"><span style="font-family:verdana;">It is very easy to confuse people who lack a fundamental educational background in the mathematical sciences by manipulating data derived from flawed “research” protocols (supposedly scientific studies, surveys, etc.) and publishing the results of such manipulations in what appear, on their face, to be scientific journals and academic archives. Many people assume that the mere publication of a set of “findings” in a scientific journal or academic archive is tantamount, in and of itself, to the endorsement of such “findings” by “experts” in various fields, particularly if the journals in question have official-sounding names, and particularly if the articles in which these “findings” are published are indexed by extensive bibliographic references. Most people of good will lack the time and the requisite educational backgrounds to distinguish high quality documentation pertaining to validly constructed scientific research protocols from poor quality documentation, or from documentation pertaining to grossly unreliable or poorly designed research protocols.<br /><br />This holds true regardless of whether the issue in question lends itself readily to precise and accurate assessment, or whether the issue in question requires some understanding of the context in which it is encountered, and / or some awareness of the limitations that qualify precise and accurate measurements in the field. Psychological research is particularly vulnerable to errors in data analysis, interpretation, and communication of results, and the vast majority of non-professional people lack the skills necessary to distinguish between valid and reliable assessment tools on the one hand, and invalid or unreliable assessment tools on the other hand.<br /><br />A solid understanding of the concepts of validity and reliability is crucial in the field of psychological assessment. Clinical psychologists and other clinicians dealing with abnormal psychology have at their disposal a number of tools with which to assess and describe such issues as personality, mental illnesses, and psychological disturbances.<br /><br />The <strong><em>validity</em></strong> of a psychological assessment tool <strong><em>is a measure of the extent to which the tool in question actually measures the characteristic or construct that it is intended to measure</em></strong>. The original <strong>Minnesota <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Multiphasic</span> Personality Inventory</strong> (<strong><span class="blsp-spelling-error" id="SPELLING_ERROR_1">MMPI</span></strong>) is widely regarded as the most extensively researched psychological assessment tool in the world. The original <span class="blsp-spelling-error" id="SPELLING_ERROR_2">MMPI</span> was released in 1942 by the University of Minnesota, which has the copyright for this tool. This test was revised in 1989 and is now commonly denoted as the <span class="blsp-spelling-error" id="SPELLING_ERROR_3">MMPI</span>-2; another version reflecting additional revisions (the <span class="blsp-spelling-error" id="SPELLING_ERROR_4">MMPI</span> Restructured Form or <span class="blsp-spelling-error" id="SPELLING_ERROR_5">MMPI</span>-RF) is scheduled for release in late 2007. A special version of the <span class="blsp-spelling-error" id="SPELLING_ERROR_6">MMPI</span> was released in 1992; this version (the <span class="blsp-spelling-error" id="SPELLING_ERROR_7">MMPI</span>-A) was developed for the purpose of testing adolescents. This particular psychological assessment tool is one of the most widely utilized tests of adult psychopathology. It is also utilized in criminal justice and correctional contexts, and is part of a battery of tests utilized by agencies such as the Secret Service and the FBI for the purpose of psychological evaluation, where it is utilized for the identification of suitable candidates for high-risk public safety positions. The <span class="blsp-spelling-error" id="SPELLING_ERROR_8">MMPI</span> is also utilized in college and career counseling, in developing substance abuse treatment protocols, and in designing effective treatment strategies for both psychological problems and medical problems (e.g. chronic pain management). A huge body of literature exists in which the validity of this tool has been discussed, and the vast majority of clinicians and other professionals who utilize this tool consider it to be invaluable in terms of both validity and reliability.<br /><br />The <strong><em>reliability</em></strong> of a psychological assessment tool is a measure of the extent to which the tool in question yields <strong><em>results which are stable across time</em></strong>. If repetition of the test yields similar results for the test subjects with each repetition, then the test in question is reliable. The <span class="blsp-spelling-error" id="SPELLING_ERROR_9">MMPI</span> is so widely used precisely because it has been found to be both valid and reliable. This particular tool measures various psychological attributes with a high degree of validity, i.e. it accurately measures what it is intended to measure. It is also reliable, in that repetitions of this test on the same subjects across extended periods of time yield similar results with each repetition.<br /><br />The <strong>Rorschach Inkblot Test</strong> (<strong><span class="blsp-spelling-error" id="SPELLING_ERROR_10">RIT</span></strong>)is the second most widely utilized test in personality assessment. The subject, or <span class="blsp-spelling-error" id="SPELLING_ERROR_11">testee</span>, is shown a total of 10 symmetrical inkblots and is asked to describe what he or she sees in each inkblot. The subject’s responses are noted. Everything that the subject says and does is captured by the tester, who interprets the results with the aid of a scoring system referred to as the <strong><em><span class="blsp-spelling-error" id="SPELLING_ERROR_12">Exner</span> scoring system</em></strong>, or <strong><em>Comprehensive system</em></strong>. This scoring system includes frequency tables which show how often specific responses to each inkblot are given by the general population. This scoring system includes scales for <strong>Form Quality</strong>, <strong>Deviant <span class="blsp-spelling-error" id="SPELLING_ERROR_13">Verbalizations</span></strong>, <strong>Complexity</strong>, <strong>Human Figure</strong>, <strong>Organizational Activity</strong>, and <strong>Overall Total Responses</strong> (these are just a few of the scales). Some of these scales have been shown to correlate reasonably well with intelligence, across different testers. For example, <strong>Overall Total Responses</strong> (abbreviated as the <strong><em>R scale</em></strong>) correlates highly with intelligence; there is definitely a correlation between the R scale and intelligence, with high values of R correlating with higher intelligence. However, high values of R also correlate with higher values on some of the scales which indicate psychopathology. The overall validity of the Rorschach Inkblot Test is most controversial, as is its reliability. Intuitively, this is easy to understand; a degree of subjectivity is unavoidable when administering and scoring this test, regardless of who performs the test and how often the test is performed. Furthermore, the 10 inkblots comprising the test materials were leaked in print in 1983 and were distributed on the Internet in 2004, enabling potential <span class="blsp-spelling-error" id="SPELLING_ERROR_14">testees</span> to “rehearse” their answers, particularly under circumstances in which this test is administered for diagnostic purposes within the criminal justice system (granting parole, assigning custody, etc.).. It is accurate to state that both the validity and the reliability of this test are questionable, particularly when compared to the validity and reliability of the <strong><span class="blsp-spelling-error" id="SPELLING_ERROR_15">MMPI</span></strong>.<br /><br />Most readers of this blog will have stumbled across this information for the first time right here, in this post, above. Those readers to whom both of these tests have been administered will probably be quite surprised to learn that one of these tests is considered to be much more reliable and much more valid than the other. This is not the fault of the reader; it is mentioned merely to underscore the extent to which ordinary men and women place considerable faith in the protocols utilized by clinicians and diagnosticians in the field of psychological assessment, particularly as pertains to the diagnosis of mental disorders.<br /><br />The hard right in the US knows full well that the majority of people lack scientific backgrounds and can therefore be mislead by assertions made by “scientists” and “researchers,” particularly when dealing with controversial issues such as the rights of gay people and the manner in which gay people lead their lives. It is therefore very easy to mislead people by publishing the results of “research” in journals which have authoritative-sounding names. Tapping in to such ignorance and presumptions is precisely what anti-gay organizations (such as “<strong>Focus on the Family</strong>” (<strong><span class="blsp-spelling-error" id="SPELLING_ERROR_16">FOTF</span></strong>), the “<strong>American Family Association</strong>” (<strong><span class="blsp-spelling-error" id="SPELLING_ERROR_17">AFA</span></strong>), the “<strong>Traditional Values Coalition</strong>” (<strong><span class="blsp-spelling-error" id="SPELLING_ERROR_18">TVC</span></strong>), and the “<strong>Family Research Council</strong>” (<strong><span class="blsp-spelling-error" id="SPELLING_ERROR_19">FRC</span></strong>)) engage in with respect to shaping public policy and public opinions of gay people in the US. The “researcher” most frequently cited by these organizations in their attempts to portray gay people as depraved, diseased, uncaring, and immoral is a man named Paul Cameron.<br /><br />Cameron was born in 1939 in <span class="blsp-spelling-error" id="SPELLING_ERROR_20">Pittsburg</span>, PA. He received his B.A. from Los Angeles Pacific College in 1961 and went on to obtain his M.A. from California State University, Los Angeles, in 1962. Cameron then obtained his <span class="blsp-spelling-error" id="SPELLING_ERROR_21">Ph</span>.D. from the University of Colorado in 1966, submitting a dissertation titled “<strong>Age as a determinant of differences in non-<span class="blsp-spelling-error" id="SPELLING_ERROR_22">intellective</span> psychological functioning</strong>.” He was affiliated with several colleges and universities until 1980; these institutions included Wayne State University (1967 – 1968), University of Louisville (1970 – 1973), Fuller Theological Seminary (1976 – 1979), and the University of Nebraska (1979 – 1980). In 1982, Cameron founded an organization named the “<strong>Institute for the Scientific Investigation of Sexuality</strong>” (<strong>ISIS</strong>), which is now known as the “<strong>Family Research Institute</strong>” (<strong>FRI</strong>) (Cameron is Chairman of this organization).<br /><br />The FRI was formed following an unsuccessful attempt by the Lincoln, NE City Council to pass an ordinance which would have prohibited employment discrimination on the basis of sexual orientation. Cameron headed up an organization named the “<strong>Committee to Oppose Special Rights for Homosexuals</strong>,” which led the opposition to the proposed measure. During his campaign to defeat this measure, Cameron delivered a speech at the Lutheran chapel of the University of Nebraska, in which he stated that a four-year-old boy had been brutally sexually assaulted by a gay man at a local shopping mall. In fact, the police were unable to confirm that any such attack had occurred, and Cameron has since admitted that he had heard (and repeated) this accusation as a mere rumor.<br /><br />The mission statement of the FRI declares that the FRI has “…one overriding mission: to generate empirical research on issues that threaten the traditional family, particularly homosexuality, AIDS, sexual social policy, and drug abuse</span><a title="Drug abuse" href="http://en.wikipedia.org/wiki/Drug_abuse"></a><span style="font-family:verdana;">. This organization further seeks “"...to restore a world where marriage is upheld and honored, where children are nurtured and protected, and where homosexuality is not taught and accepted, but instead is discouraged and rejected at every level." The FRI moved from Lincoln, NE to Washington, DC, and then to Colorado Springs, CO, where it remains active and continues to generate anti-gay propaganda.<br /><br />Cameron is a tireless crusader who is utterly determined to portray the gay community as a threat to public health, a danger to small children, and a scourge to civilization itself.<br /><br />Ordinarily, ad <span class="blsp-spelling-error" id="SPELLING_ERROR_23">hominem</span> observations are useless when debating issues of fact, and tend to undermine the credibility of the person who makes them. However, when such observations bear directly on the credibility of a person who assumes a self-appointed role as guardian of the public health and welfare, then it is entirely reasonable to make reference to such observations, particularly when the person in question casts aspersions on the credibility of the group that he or she attacks. Bearing this in mind, the following observations should be made relative to Cameron and his relationships to professional bodies and peers.<br /><br />Cameron describes himself as a “<strong>Researcher / Clinician</strong>” on his resume. However, Cameron was only permitted to practice psychology in the State of Nebraska, and his license to practice psychology in that state is currently listed as “<strong>Inactive</strong>” on the Web site of the <strong>Nebraska Department of Health and Human Services</strong> (see </span><a href="http://www.nebraska.gov/LISSearch/search.cgi"><span style="font-family:verdana;">http://www.nebraska.gov/LISSearch/search.cgi</span></a><span style="font-family:verdana;">, where you can perform a search for his credentials). His license (#<strong>100334</strong>) lapsed into “<strong>Inactive</strong>” status effective January 2, 1995. Cameron is therefore <strong><em>not</em></strong> a licensed clinician, and his continued references to himself as a clinician are therefore flat-out lies.<br /><br />Cameron was expelled from the “<strong>American Psychological Association</strong>” (<span class="blsp-spelling-error" id="SPELLING_ERROR_24">APA</span>) in December 1983, after ethics charges were brought against him in response to his misrepresentation and distortions of the results of studies performed by other psychologists working at the University of Nebraska. Cameron insists that he resigned from the <span class="blsp-spelling-error" id="SPELLING_ERROR_25">APA</span> – however, the <span class="blsp-spelling-error" id="SPELLING_ERROR_26">APA</span>’s bylaws make it clear that a member of the <span class="blsp-spelling-error" id="SPELLING_ERROR_27">APA</span> may not resign during the course of an ethics investigation of that member. The <span class="blsp-spelling-error" id="SPELLING_ERROR_28">APA</span> formally expelled Cameron on December 2, 1983, stating that “Paul Cameron (Nebraska) was dropped from membership for a violation of the Preamble to the Ethical Principles of Psychologists.” Cameron has gone to elaborate and embarrassing lengths to explain this away on his Web site – however, his formal expulsion from this body stands.<br /><br />The “<strong>Nebraska Psychological Association</strong>” (<strong><span class="blsp-spelling-error" id="SPELLING_ERROR_29">NPA</span></strong>) adopted a resolution at its membership meeting on October 19, 1984, stating that this organization “formally disassociates itself from the representations and interpretations of scientific literature offered by Dr. Paul Cameron in his writings and public statements on sexuality.” The <span class="blsp-spelling-error" id="SPELLING_ERROR_30">NPA</span> went on to state that “…the Nebraska Psychological Association would like it known that Dr. Cameron is not a member of the Association. <strong><em>Dr. Cameron was recently dropped from membership in the American Psychological Association</em></strong> for a violation of the Preamble to the Ethical Principles of Psychologists” [emphasis added].<br /><br />In 1985, the “<strong>American Sociological Association</strong>” (<strong>ASA</strong>) adopted a resolution declaring that “Dr. Paul Cameron has consistently misinterpreted and misrepresented sociological research on sexuality, homosexuality, and lesbianism," also noting that "Dr. Paul Cameron has repeatedly campaigned for the abrogation of the civil rights of lesbians and gay men, substantiating his call on the basis of his distorted interpretation of this research." This resolution formally charged an ASA committee with the task of "critically evaluating and publicly responding to the work of Dr. Paul Cameron."<br /><br />In August 1986, the ASA accepted the committee’s report and adopted the following resolution: “The American Sociological Association officially and publicly states that Paul Cameron is not a sociologist, and condemns his consistent misrepresentation of sociological research. Information on this action and a copy of the report by the Committee on the Status of Homosexuals in Sociology, "The Paul Cameron Case," is to be published in Footnotes, and be sent to the officers of all regional and state sociological associations and to the <strong>Canadian Sociological Association</strong> with a request that they alert their members to Cameron’s frequent lecture and media appearances.”<br /><br />Cameron’s shameful abuse of the public trust has been noted by organizations outside of the US. In 1996, the Board of Directors of the “<strong>Canadian Psychological Association</strong>” (<strong>CPA</strong>) released a position statement denouncing Cameron’s work and distancing the CPA from Cameron’s “findings,” stating that Cameron had “consistently misinterpreted and misrepresented research on sexuality, homosexuality, and lesbianism.”<br /><br />It is difficult to find any contemporary figure in the human sciences who has been denounced by so many well-respected and prestigious organizations, including the largest professional organization of psychologists in the US (the <span class="blsp-spelling-error" id="SPELLING_ERROR_31">APA</span>). However, criticism of Cameron and his methodology has not been confined to statements made by professional organizations. In 1985, US District Court Judge Jerry <span class="blsp-spelling-error" id="SPELLING_ERROR_32">Buchmeyer</span> subjected Cameron to a blistering tongue-lashing. Judge <span class="blsp-spelling-error" id="SPELLING_ERROR_33">Buchmeyer</span>, presiding over proceedings pertaining to the constitutionality of the Texas “homosexual conduct” statute, concluded that “…Dr. Paul Cameron...has himself made misrepresentations to this Court" and that "[t]here has been no fraud or misrepresentations except by Dr. Cameron" (see <strong><em>Baker v. Wade</em></strong> (1985) (p.536)).<br /><br />Undaunted by these criticisms of both his integrity and his methodology, Cameron went on to participate in the now-notorious “<strong>gay obituary</strong>” study, the results of which purported to show that gay men and lesbians have much shorter lifespans than heterosexual men and women. In 1994, Cameron and his associates counted obituaries published by the gay press in gay newspapers and periodicals, and used this data to estimate the lifespans of gay men and lesbians. This is a textbook case revealing the deficiencies associated with drawing conclusions from a <strong><em>convenience sample</em></strong> as opposed to a <strong><em>representative sample</em></strong>.<br /><br />A representative sample is precisely what the name implies: it is a sample from a population that is representative of the entire population. When a doctor performs blood tests, e.g. for the diagnosis of an infection, the doctor does not drain all of the blood from a patient’s body in order to determine the white blood cell count (<span class="blsp-spelling-error" id="SPELLING_ERROR_34">WBC</span>) and the presence or absence of antibodies. Instead, the doctor takes one or more test tubes and fills those test tubes with blood drawn (usually) from a vein. The doctor then performs the necessary tests against these blood specimens. This is methodologically sound because blood drawn from a vein in the arm is very similar to blood drawn from a vein in the foot; in most cases, the <span class="blsp-spelling-error" id="SPELLING_ERROR_35">WBC</span> will be the same regardless of from where the blood was drawn. This is, in other words, a representative sample of the patient’s blood.<br /><br />Now consider obituaries published in gay periodicals and newspapers. These obituaries are hopelessly unrepresentative of the populations in question (the entire gay and lesbian population). Reasons for this lack of adequate representation are directly attributable to the following observations:<br /><br />Most gay community newspapers do not have sections of death notices. As the AIDS epidemic began to claim the lives of so many gay men during the 1980s, however, many (but certainly not all) gay newspapers and periodicals began to publish obituaries. These obituaries are usually compiled by, and submitted by, close friends and relatives of the deceased (exceptions to this occur in those cases when the deceased is a public figure, or an influential figure in gay politics, in which cases obituaries are frequently prepared by organizations seeking gay equality in the US). In the vast majority of cases (those cases where the deceased is not a public figure), obituaries only appear in gay community newspapers and periodicals if (1) a loved one or friend of the deceased notifies the newspaper of the death of the deceased, often after preparing an obituary for the deceased, and (2) the editor of the newspaper or periodical in question decides to print the obituary.<br /><br />Thus, most gay men and lesbians do not have their deaths written up in obituaries published in the gay media. The following is a list (by no means exhaustive) of the groups of gay men and lesbians who, upon passing away, are unlikely to have obituaries printed in the gay media:<br /><br />· <strong>Gay men and lesbians who are not involved in the gay community (men and women who are not activists or outspoken contributors to the politics of gay equality);</strong><br />· </span><span style="font-family:verdana;"><strong>Gay men and lesbians who are closeted, i.e. not open about their sexual orientation. Sadly, this reflects a large percentage of the overall gay population in the US;<br />· Gay men and lesbians whose families do not wish for the sexual orientation of the deceased to be made a matter of public record;<br />· Gay men and lesbians whose families or significant others simply do not consider sending obituaries to the gay press;<br />· Gay men and lesbians whose families or significant others did not send in obituaries for other reasons (shock and grief can prevent a gay-supportive family or circle of friends from thinking about sending obituaries to the gay press<br />· Gay men and lesbians who die without leaving loved ones to write obituaries for the deceased, e.g. gay people whose loved ones die before them).<br /><br /></strong>An accurate estimate of the lifespans of gay men and lesbians would have to include the lifespans of people from all of the above groups even to approach adequate and accurate representation of the average ages of death of gay men and lesbians. Furthermore, this “research” is fatally flawed in another, important respect: it is by its nature a <strong><em>retrospective</em></strong> analysis of lifespans, where a <strong><em>prospective</em></strong> analysis would be much better suited to accomplishing the task in question. A prospective study would require the selection of groups of heterosexual and gay men and lesbians (at least four groups in total – gay men, lesbians, heterosexual men, and heterosexual women) carefully chosen to eliminate confounding variables such as socio-economic status, congenital illnesses (which have no bearing on sexual orientation), access to healthcare, differences in schooling and education, etc.). Retrospective studies, whilst useful, are flawed in that they cannot, even under the best of circumstances, yield results as meaningful as those yielded by prospective studies. For example, when assessing the efficacy of anti-retroviral medications, it is almost always necessary to identify a control group and an experimental group, members of which both of which have to be matched for such factors as prior exposure to specific anti-retroviral drugs, comparable viral loads, comparable clinical presentation, etc. Only when the efficacy of the drug in question is established by observing and documenting improvements in clinical outcomes, or improvements in terms of lower viral load, higher CD4 counts, etc. can the experimental drug be said to be effective as an addition to existing treatment regimens. Prospective studies, however, are beset with ethical problems – many doctors regard it as immoral to maintain patients on the non-experimental protocol, for which reason patients receiving the non-experimental protocol are frequently granted access to the experimental drug as soon as the improved outcome of utilizing that drug in combination with those already prescribed has been established.<br /><br />In short, Cameron’s “obituary studies” are utterly worthless in terms of predicting and comparing the lifespans of gay people versus heterosexual people. Cameron has a Ph.D. – he is not a naïve fool. The poor quality of his analysis and the highly selective nature of the “convenience sample” in question leads inevitably to the inference that Cameron conducted his “obituary study” not for the purposes of the dispassionate analysis and the advancement of legitimate scholarship, but for the purpose of generating “empirical data” for the purpose of “restor[ing] a world where marriage is upheld and honored, where children are nurtured and protected, and where homosexuality is not taught and accepted, but instead is discouraged and rejected at every level.”<br /><br />During 1983 and 1984, Cameron conducted a “<strong>National Survey</strong>,” supposedly for the purpose of accurately and dispassionately quantifying the behavior of gay men and lesbians. The “National Survey” study was intended to provide the world with accurate information about the sexual activity of gay men and lesbians throughout the US. This survey therefore drew upon responses from the citizens of seven municipalities (Bennett (NE), Denver (CO), Los Angeles (CA), Louisville (KY), Omaha (NE), Rochester (NY), and Washington (DC)); data from Dallas (TX) was added later. However, at least six serious errors have been identified in Cameron’s sampling techniques, survey methodology, and interpretation of results. Any one of these errors, on its own, would render Cameron’s conclusions highly suspect – the combination of all six errors results in the generation of data which is completely meaningless. The six errors are discussed below:</span></p><div align="justify"><br /><br /><span style="font-family:verdana;">1) <strong><em>There is nothing “national” about data derived from only eight municipalities.</em></strong> By deriving data only from respondents living within these eight municipalities, Cameron systematically excluded all US adults who resided elsewhere. At best and assuming otherwise flawless sampling techniques, methodology, and interpretations, Cameron’s “findings” could be extrapolated only to the populations of the eight municipalities in question. However, there was nothing flawless about the sampling techniques utilized within these eight municipalities, as will be discussed in (2) below.<br /><br />2) <strong><em>Cameron never reported the response rate</em></strong> he obtained within each of these eight localities. Instead, Cameron reported a “compliance rate,” where the “compliance rate” was the percentage of respondents in each city who returned the survey form after actually being contacted and given the survey form. In other words, Cameron omitted the vast majority of respondents who simply refused to participate in the survey (some of these people refused to accept the survey form and wanted nothing to do with the study). There are major differences between people who refuse to participate in a study and those who choose to participate in a study, particularly when the information gleaned from the study is highly sensitive and personal in nature. This was an error that any first-year student of inferential statistics would recognize in a heartbeat. Cameron reported a compliance rate of 43.5% for the seven-city survey (which was later corrected to 47.5%) and a 57.7% compliance rate for the Dallas survey. The actual response rates, given the above distortion, were much, much lower. Usage of the “compliance rate” was grossly misleading because it excluded the large number of households within the eight cities who were never successfully contacted (the so-called “not-at-homes”). Legitimate research of this nature requires that the researcher report the true response rate – the actual number of completed surveys divided by the total number of households initially targeted by the survey. Using Cameron’s own data, the true response rate for the seven-municipality survey was a mere 23.6; the response rate for the Dallas survey was a mere 20.7%; and (using appropriate weighting techniques in these calculations) the overall response rate across all eight municipalities was approximately 23%. More than three out of every four households targeted for this survey either refused, outright, to participate in the survey; accepted a survey form but failed to return it; or could not be contacted. This pitifully low response rate makes it impossible to take Cameron’s conclusions seriously. While there is no uniformly accepted figure for a “good” response rate, it is clear that the Cameron surveys relied not upon a random sample but instead upon a convenience sample. It is impossible to generalize from a convenience sample to an entire population with any confidence in the legitimacy of the generalization; yet this is precisely what Cameron attempted. Again, it should be stressed that Cameron is not a fool, nor is he naïve, leading inevitably to the inference that his publication of these “results” was motivated by raw animus to the class of persons targeted by the “survey” (gay Americans).<br /><br />3) <strong><em>Had Cameron’s 1983 – 1984 combined sample been a true random sample (which it most certainly was not, as discussed in (2) above), it would have been large enough (N = 5,182) to permit Cameron to make estimates of general population characteristics with only a small margin of error.</em></strong> This, however, is moot, due to the extremely low response rates and the fact that Cameron employed a convenience sample instead of a random sample. However, even if one makes the assumption that Cameron’s sample was a random sample (which it was not), Cameron tried, in several papers, to make reliable estimates about the characteristics of extremely small subgroups within this sample. For example, Cameron identified a total of 17 respondents within their 1983 – 1984 samples who claimed to have a gay parent. Cameron then scrutinized the questionnaires completed by these 17 respondents for negative sexual experiences, one of which was incestuous sexual activity with a gay parent. Of the 17 respondents who were asked whether they had ever experienced an incestuous sexual encounter with their gay parents, five answered in the affirmative. This enabled Cameron to argue that 29% (five divided by 17) of gay Americans have incestuous relationships with their parents, as opposed to only 0.6% of the children of heterosexual parents, and that “having a homosexual parent(s) appears to increase the risk of incest with a parent by a factor of about 50.” Reliance upon such a small subset of respondents is invalid due to the fact that data from such a ridiculously low sample have an unacceptably high margin of sampling error. In a true random sample of 17 (and this was not a true random sample of 17, as discussed in (2) above), the margin of error due to sampling (with a confidence level of 99%) is plus-or-minus 33%. Thus, had the subset of 17 people been drawn from a true random sample (which it was not), all that one would have been able to conclude from Cameron’s data is that the true proportion of adults who have a gay parent and who have been sexually abused by that parent is anywhere from -4% (effectively zero) and 62%. Such a wide margin of error renders the result completely meaningless. Furthermore, because the confidence interval includes zero, Cameron could not legitimately conclude that the true number of children of gay parents (in the eight municipalities sampled) who were the victims of gay incest was actually different from zero.<br /><br />4) <strong><em>The validity of the questionnaire items was most doubtful.</em></strong> Data derived from self-reporting is useful only to the extent that respondents answer the questions truthfully and honestly. When participants give incorrect or unreliable answers to questions, it is either because (1) they are unable to give accurate responses or (2) because they are unwilling to give accurate responses. In Cameron’s “survey,” reasons exit to assume that both factors operated. Cameron’s questionnaires contained 550 items and took, on average, at least 75 minutes to complete. A large number of questions dealing with highly sensitive aspects of human sexuality were included, in some cases in a very complex format. The problems of respondent fatigue and item difficulty both played a role in reducing the validity of the questionnaire. Respondent fatigue is particularly likely to creep into a lengthy survey that takes more than an hour to complete. It is possible to control for respondent fatigue by repeating some of the questions asked earlier in the test, towards the end of the test (if discrepancies are noted with consistency, the test should be revamped to reduce respondent fatigue). Cameron did not utilize any such consistency checks in his questionnaire. Furthermore, some of the questions, in addition to being extremely sensitive, were presented in extremely complex multiple-choice format. In one section, for example, respondents were expected to read a list of 36 categories of persons (e.g., my female grade school teacher, my male [camp, Y, Scout] counselor), then to note the age at which each person made serious sexual advances to me, then to note the age at which each person had experienced physical sexual relations with me, and then to report the total number of people in each category with whom the respondent had sexual relations. Another item asked respondents why they thought they had developed their sexual orientation, and gave a checklist of 44 reasons, including I was seduced by a homosexual adult, I had childhood homosexual experiences with an adult, and I failed at heterosexuality. Many respondents probably became confused, tired, and alienated by the content of some of the questions. In addition, when presented with long lists of alternatives, many respondents may have skipped the lower items on the list, or read them incompletely. Another validity problem that can arise when dealing with such complex issues takes the form of respondents intentionally giving incorrect information. Any test or questionnaire based on self-reporting relies on the honesty of the participants to include full and accurate information, and many respondents may have been made uncomfortable by some of the questions that were asked. One way in which an experienced psychologist can reduce the likelihood of false or malicious answers being given is to ensure the respondents that their answers will remain anonymous (as opposed to confidential). This procedure is utilized in cases where the subject matter is complex and in which respondents do not wish for their names to be associated with their answers. Cameron’s own notes and conclusions imply that the questionnaire that he distributed was not anonymous. (There is a big difference between confidentiality and anonymity, and Cameron may have promised only the former.) The manner in which the questionnaires were presented almost certainly impacted negatively on the validity of the results; complete strangers simply arrived on the doorsteps of the respondents, without any affiliation with a prestigious University, college, or institute. In Bennett (NE), the local newspaper actually reported on advice given by a police offer to a neighbor not to complete the survey. Furthermore, it is entirely possible that some people may have used this opportunity to sabotage the test by giving outrageous and inaccurate answers to the more sensitive questions (e.g. exaggeration of sexual activity, exaggeration of participation in multiple unconventional sexual acts, imputing instances of incest, etc.). As discussed earlier, Cameron’s analysis of subgroups was particularly sensitive to fake answers because of the tiny numbers of people involved (17 people stated that they had a gay parent; two or three exaggerated answers would have dramatically skewed the results). The impact of mischief-makers is maximized when dealing with very small subset samples, as occurred in Cameron’s case. Furthermore, nobody from the study was present with the participants when they completed their questionnaires – a factor which could have played a dramatic role in permitting mischief-makers to skew the results.<br /><br />5) <strong><em>The interviewers may have been biased and may not have followed uniform procedures.</em></strong> Professional survey organizations go to considerable lengths to ensure that testers approach the issues in question from a non-biased and non-judgmental viewpoint; they strictly follow standardized procedures and communicate a neutral, non-judgmental attitude towards the respondents. Furthermore, the interviewers frequently know nothing of the goals of the survey. It is impossible to know whether Cameron followed this protocol. In his published report, he made no reference to such quality control procedures, which in and of itself implies that he did not employ such procedures. It is not clear whether a supervisor randomly contacted some of the respondents in order to ensure that the respondent had, himself or herself, taken the test (numerous studies have been sabotaged by lazy administrators failing to distribute the tests properly; some such administrators may complete several tests themselves, in order to skip the hard work of going from door to door). Such controls would have strengthened the validity of Cameron’s findings; the fact that they were not mentioned in his report suggests that they were not implemented in the field. More serious, however, is the undisputed fact that several high-level members of the research team were active in distributing the questionnaires and collecting the data. This is problematic because these people can be expected to have strong biases and a vested interest in the outcome – an interest that can cause them to transmit their expectations to the respondents (this is why people who have no knowledge of the objective of the study are usually employed to gather data).<br /><br />6) <strong><em>Cameron made his bias known during the period that the survey was being conducted.</em></strong> In order to study a social phenomenon, researchers take great care to ensure that the individuals being studied do not become aware of the expectations or goals of the research in question. Should the subjects become aware of the goals or expectations of the researchers, then the subjects may deliberately tailor their answers to thwart or to encourage the expectations of the researchers. Cameron ignored this universally accepted caution and made headlines in Omaha, NE (one of the cities selected for his “nationwide” research), characterizing his survey as providing "ammunition for those who want laws adopted banning homosexual acts throughout the United States," and he was quoted as saying that the survey's sponsors were "betting that (the survey results would show) that the kinds of sexual patterns suggested in the Judeo-Christian philosophy are more valid than the Playboy philosophy." During the course of conducting his survey, Cameron was publicly vocal in his support for a proposed quarantine of all gay people (he spoke out publicly about this proposal in Houston at the same time that the survey was being conducted in Dallas). It is entirely possible that respondents in other cities became aware of Cameron’s goals and deliberately decided not to participate in the survey, or decided to give answers reflecting their personal bias and their personal desire to shape public policy.<br /><br />Then there is the question of the publications in which Cameron published the results of his research. Research studies are often evaluated in terms of the prestige of the scientific journals in which they are published, as well as in terms of the number of times these studies are cited in the literature by other researchers and scholars. The <strong>Social Sciences Citation Index (SSCI)</strong> and the <strong>Journal Citation Reports (JCR)</strong> provide objective measures for these criteria, respectively.<br /><br />The SSCI is a quarterly publication that lists, alphabetically by author, all articles that have been cited in scientific journals during that time period and the bibliographic reference for the articles that have cited them.<br /><br />The JCR compiles data from the SSCI to report an <strong><em>impact factor</em></strong> for individual academic journals. The impact factor describes the average frequency with which articles in a particular journal are cited. It is computed as the number of times any article from that journal is cited during the first two years following its publication divided by the total number of articles published in that journal during the time period. To provide a simplified example, suppose that a particular journal published 25 articles in 1990, and those 25 articles were subsequently cited a combined total of 125 times between 1990 and 1992. The journal's impact factor for 1990 would be 125/25 or 5.0. Although the impact factor has limitations, it is widely used by librarians, information scientists, and researchers from a variety of disciplines as an objective indicator of a journal's quality, value, and impact.<br /><br />Cameron’s “research” has been published in four very low quality journals (i.e. journals with a very <strong><em>low impact factor</em></strong>). Most of his “research” was published in one journal named <strong>"Psychological Reports"</strong>. Unlike prestigious journals, Psychological Reports charges the researcher a fee by the page to print the so-called research. This journal is, in fact, a vanity journal in which “researchers” may get material published which would be rejected by prestigious and highly regarded journals. Cameron himself once described another journal in which his “research” has been published as “obscure.”<br /><br /><strong><em>Based on data from the SSCI, Cameron’s work had almost no impact whatsoever on the literature.</em></strong><br /><br />It should be clear, taking all of the above issues into consideration, that Cameron and his acolytes are skilled liars and fraud artists. Cameron’s “work” has been savaged by other, reputable researchers, and the few times in which his articles have been cited in the professional literature have taken the form of critiques of his methodology. This is a man who is little more than a hired gun with a veneer of academic respectability. He is not interested in legitimate scientific research – to the contrary, he is committed to abusing research protocols in an effort to lend credence to his quackery and his efforts at extreme right-wing social engineering.</span></div><div align="justify"><br /><br /><strong><span style="font-family:verdana;font-size:130%;">PHILIP CHANDLER</span></strong></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com1tag:blogger.com,1999:blog-6705590065739638649.post-33358369141017694312007-06-10T20:25:00.001+01:002009-03-06T13:33:13.890+00:00A recent message on www.artsandfaith.com........<div align="justify"><span style="font-family:verdana;">Anti-gay bigotry seems more firmly entrenched than ever when reviewing message boards dedicated to discussions of arts and the relationship between art and faith. I recently visited a message board dedicated to discussions of the arts, and found the following comment pertaining to homosexuality posted on one of the message boards:<br /><br />"It's very depraved behavior." (referring to gay sex).<br /><br />My response is as follows:<br /><br />I cannot express, in words, the extent to which comments of this nature both sicken and disgust me.I am openly gay, and am considered by some people to be a gay "activist." I have no formal legal training, but decided, several years ago, to learn as much about US Constitutional law as possible, because I concluded that the fight for gay equality and eventual full acceptance in the US will inevitably involve the federal and state court systems. I have been vindicated in this conclusion by a string of recent victories won by the gay and lesbian community.Few heterosexuals are aware of the fact that it remained illegal, in about 14 states, for gay Americans to have sex, even in the privacy of their bedrooms, up until June 2003. In 1986, the US Supreme Court -- packed by Ronald Reagan -- handed down a decision upholding the Georgia sodomy statute (and other state statutes criminalizing gay sex), which mandated that any person convicted under this measure receive a minimum prison term of one year and a maximum prison terms of 20 years (see Bowers v. Hardwick, 478 U.S. 186 (1986)). A gay bartender named Michael Hardwick was arrested in his own bedroom in 1982 after the police, who were admitted into his home in error by a houseguest to serve Hardwick with a warrant for public drunkenness, found him engaging in oral sex with another man. Although the District Attorney declined to prosecute Hardwick under the sodomy statute, Hardwick filed suit against the State of Georgia, contending that this statute (and, by extension, similar statutes in 24 other states) violated his right to sexual privacy under the Due Process Clause of the Fourteenth Amendment. The state Attorney General, Michael Bowers, appealed the decision of the US Court of Appeals for the Eleventh Circuit, which found in Hardwick’s favor, to the US Supreme Court. In an opinion that stunned even many conservative Court-watchers, the Court upheld the sodomy statute as applied to gay sex, even when such sex occurred in the privacy of the homes of gay Americans. The tone of the 5 – 4 majority was sneering, contemptuous, and vitriolic; Chief Justice Burger’s concurrence piously observed that “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching” and “in constitutional terms there is no such thing as a fundamental right to commit homosexual sodomy.”<br /><br />Justice Lewis Powell, who cast the deciding fifth vote in favor of the State of Georgia, admitted in October 1990 to the National Law Journal that he had made a serious mistake, and that, on reflection, he should have voted in Hardwick’s favor. Welcome as it was to hear that this Justice (who by then had retired) admitted that he had made a mistake, this did nothing to ameliorate the damage that Bowers worked in the lives of gay Americans up and down the country. Conservative federal judges expanded the narrow holding of the Court (which merely upheld the right of the states to criminalize gay sex) to create a “gay exception” to other Constitutional protections. Legislative bodies cited Bowers in all-too-frequently successful attempts to derail the enactment of anti-discrimination measures on the grounds that they could not pass legislation that would, by definition, protect a class of criminals from discrimination in employment, housing, and access to places of public accommodation. Lesbian mothers lost custody of their own children on the grounds that they were unconvicted felons. But while Powell deserved some measure of thanks for his acknowledgment that he had made a mistake, the behavior of Attorney General Michael Bowers was nothing less than risible, not to mention a case study in gross hypocrisy.<br /><br />For almost an entire decade during the 1980s – while defending the right of his office to prosecute gay men and lesbians for having sex in the privacy of their own homes – Michael Bowers had been engaged in an adulterous relationship. At that time, adultery was a serious crime in the State of Georgia, carrying similar stiff penalties as those retained for gay sex. This did nothing, however, to slake Bowers’ prosecutorial thirst for the blood of gay Americans. In 1990, Bowers further attempted to slake that thirst by withdrawing a job offer that had been made to an openly gay woman named Robin Shahar, who had applied for and been offered a job working for the Georgia Attorney General’s office – on the grounds that, by entering into a commitment ceremony with her female partner, she was no longer fit for purpose. A deeply divided US Court of Appeals for the Eleventh Circuit, applying the balancing test established by the US Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968), determined that Sharhar’s First Amendment rights to intimate and expressive association were outweighed by Georgia’s interest “as an employer in promoting the efficiency of the Law Department’s important public services.” Attorney General Bowers apparently saw no conflict of interest in his personal criminal behavior and the “important public services” of his office.<br /><br />For almost two decades following the blow dealt to the gay community by the US Supreme Court in Bowers, gay activists turned their attentions to the refuge offered them by state constitutional guarantees. Most state constitutions are more generous, either by their terms or as construed by state supreme courts, in the privacy guarantees they afford their citizens than is the US Constitution, as interpreted by the US Supreme Court. A decision handed down by a state supreme court, finding a state statute unconstitutional on state constitutional grounds, cannot be appealed to the US Supreme Court. The US Supreme Court is the ultimate arbiter of US Constitutional law and issues arising from interpretations of the US Constitution; a state high court, on the other hand, is the ultimate arbiter of state constitutional analysis and issues arising from interpretations of the relevant state constitution. Only when a state constitution is amended in such a manner as to deny to any of the citizens of that state a right which is guaranteed them by the US Constitution can the US Supreme Court (or any other federal court) interfere with or review a decision handed down by the state supreme court (for example, a decision striking down the amendment in question). Gay activists won their first victory by attacking state sodomy statutes in state court in Kentucky, and went on to win a string of victories in state after state.<br /><br />On June 6, 2003, the US Supreme Court handed down a decision (Lawrence v. Texas, 539 U.S. 558 (2003)) explicitly and bluntly reversing Bowers. By this point in time, the number of states with sodomy statutes prohibiting consensual gay sex had dropped from 25 at the time Bowers was handed down, to about 14, reflecting the victories that the gay community had won at the state constitutional level. The grounds on which Bowers rested had also been seriously eroded by a case involving the rights of gay Coloradans following the passage, in that state, of the infamous “Amendment 2” to the state constitution. Enforcement of this amendment was permanently enjoined by the District Court for the City and County of Denver (a state court) and never took effect (the US Supreme Court upheld the permanent injunction in Romer v. Evans, 517 U.S. 620 (1996), using strong language to emphasize the dignity of gay Coloradans, thereby implicitly undermining Bowers). This state constitutional amendment had the “immediate effect” of repealing all ordinances, statutes, and executive policies, in both the public and the private sectors, insofar as these measures protected gay Coloradans from discrimination at the hands of heterosexual Coloradans. The amendment had the “ultimate effect” of permanently restructuring the political process in the State of Colorado by making it impossible for legislative or executive bodies ever again to pass similar, or more protective, measures protecting gay people from discrimination at the hands of heterosexual Coloradans, regardless of how rampant or severe such discrimination would have become. Existing measures, however, still protected heterosexual Coloradans from discrimination at the hands of gay Coloradans, and future measures could still have been passed protecting heterosexual Coloradans from discrimination at the hands of gay Coloradans. One class of Coloradans, and only one class of Coloradans (gay men and lesbians) was identified by “Amendment 2,” and the adoption of measures intended to prohibit any and all forms of discrimination against members of this class was permanently removed from consideration by the normal political processes within that state. For all intents and purposes, heterosexual Coloradans had granted to themselves an unconditional and unrestricted license to discriminate against gay Coloradans; the US Supreme Court held that “A State cannot so deem a class of persons a stranger to its laws.” The Court held that "Amendment 2" was nothing less than a facial violation of the Fourteenth Amendment's Equal Protection Clause, and threw this amendment out in a strongly-worded opinion.<br /><br />Fundamentalist Christians and other gay-bashers repeatedly claim that gay Americans seek “special rights,” and the backers of Colorado’s “Amendment 2” made it clear that they intended this measure to prevent gay Coloradans being granted “special rights” or “special protections.” The Romer Court eviscerated this claim, declaring that “We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.”<br /><br />Lawrence involved a fact pattern remarkably similar to that implicated in Bowers. On this occasion (on September 17, 1998), Houston sheriff’s deputies entered the home of a gay man (John Lawrence) and found him having sex with a partner (Tyron Garner) (a homophobic neighbor tried to get these openly gay men into trouble by filing a false complaint alleging a weapons disturbance, calculating that the police would arrive to find Lawrence and Garner having sex; this neighbor subsequently served a 30-day jail term for filing a false police report). This sexual act ran afoul of Section 21.06 of the Texas Penal Code, which prohibited same-sex oral and anal intercourse. Although the men were convicted by a trial court and although their convictions were affirmed by the Court of Appeals for the Fourteenth District (an influential Texas state court of appeals), the men continued to fight, eventually petitioning the US Supreme Court for a writ of certiorari. To the amazement of many legal observers, the US Supreme Court granted the writ, and insisted that both the petitioners and the State of Texas brief the Court as to whether Bowers v. Hardwick should be overruled. The decision was handed down on June 26, 2003; the US Supreme Court explicitly and bluntly reversed Bowers, apologizing to the gay community both for its failure to apprehend the true nature and extent of the liberty interest at stake, and for the manner in which the Court had slighted and demeaned the gay community in Bowers. More specifically, the Court wrote that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The Court also noted that “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”<br /><br />In ringing tones, the Court observed that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”<br /><br />We do not live in a theocracy. We do not live in a society where the will of religious fundamentalists is inscribed into the criminal laws. We live in a multicultural, pluralistic society; a society in which people of vastly divergent belief systems live together, cheek by jowl. The sentiment expressed by the person who opined that gay sex is “depraved behavior” is illustrative of the extent to which religious intolerance is systemic in American society, and continues to disease the cultural discourse despite the opinions of developmental psychologists, clinical psychologists, cognitive psychologists, and psychiatrists, the overwhelming majority of whom concluded in 1973 that homosexuality is not a form of mental illness. It saddens and depresses me that such backward thinking continues to flourish in the US in 2007. But, given the opening of the joke in Kentucky referred to as the “Creation Museum,” I should have expected to encounter such flagrant hostility and cruelty on this message thread.<br /><br />Nevertheless, I remain optimistic. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), Associate Justice Sandra Day O’Connor observed that “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”<br /><br />I am thankful for the fact that no religious extremists can change the laws to force people like me back into hiding. Soon, the so-called “Don’t Ask, Don’t Tell” policy will come down (Congress is already studying the manner in which other nations have integrated gay men and lesbians into the Armed Forces). Gay marriage is legal in both name and substance in the Commonwealth of Massachusetts. Gay marriage is legal in substance but not name in Vermont, Connecticut, New Hampshire, New Jersey, Oregon, and at least one other state (in these states, gay marriages are referred to as “civil unions” or (in the case of Oregon) as “domestic partnerships”). Notwithstanding repeated efforts to condemn gay marriage, religious fanatics are losing the fight. This year, they did not even succeed in introducing the so-called “Marriage Protection Amendment” (last year, this proposed measure failed to garner even a majority vote in the Senate during a procedural vote to end debate).<br /><br />I am presently visiting the UK. Gay marriage is legal in all but name here. Gay marriage is legal in both name and substance in Canada, Germany, Belgium, The Netherlands, Spain, and South Africa. Gay marriage is legal in all but name in the Scandinavian countries (e.g. Denmark, Sweden, Norway, Finland, Iceland, etc.). Gay marriage is also legal in all but name in many South American countries (e.g. Colombia, Argentina, Brazil, and Venezuela). The history of progress with respect to any social movement shows that a critical mass is reached, at which point progress continues exponentially.<br /><br />We have reached that “tipping point,” and gay marriage will soon be legal here in the USA, just as it is in the UK and in Canada.<br /><br /><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong> </span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-51825970843172296822007-04-25T14:46:00.001+01:002009-03-06T14:04:29.232+00:00Lies told about the Local Law Enforcement Hate Crimes Prevention Act of 2007<div align="justify"><a href="http://gayequalityandthelaw.blogspot.com/2007/04/lies-told-about-local-law-enforcement.html"><span style="font-family:verdana;">Lies told about the Local Law Enforcement Hate Crimes Prevention Act of 2007</span></a><span style="font-family:verdana;"> </span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">I have read all kinds of rubbish over the years, but the conservative whining about the proposed Local Law Enforcement Hate Crimes Prevention Act of 2007 takes the cake. Contrary to the tripe that I have read so many times, not all crimes are hate crimes. When a mugger pushes an old man to the ground and steals the old man's wallet, the mugger does not necessarily or even usually hate the victim -- injury to the victim is incidental to the true motive of the mugger, which is to steal money. In such cases, the mugger often does not even know the name of the victim he or she is about to assault and rob. The mugger does not act out of a frenzied hatred of old men carrying wallets; he or she merely seeks to relieve the victim of that person's money. Such behavior can be classified as showing disregard for the rights of the victim, but that is a far cry from <strong><em>hating</em></strong> the victim. A tenant who fails to pay his or her rent does not hate his or her landlord -- the tenant merely seeks to remain on the premises without paying the rent.</span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Contrast the above, hypothetical crime of a mugger pushing an old man to the ground on the one hand with the crime perpetrated against Matthew Shepard on the other hand. This young gay man was pistol-whipped by two local Laramie thugs (one of whom was a professed Mormon); the blows to his head were so severe the bones of his skull were smashed to powder, following which he was driven to the outskirts of Laramie and tied, in a crucified position, to a split-rail fence (his attackers used a rope to lash him to the fence). Aaron McKinney and Russell Henderson initially stated that they beat Shepard (who died several days after being cut down from the fence without ever regaining consciousness) because Shepard had made sexual advances towards them (as though it is acceptable to kill a person who makes unwanted sexual advances towards the individual concerned). During the trial of Aaron McKinney, McKinney's counsel advanced this "gay panic" defense, to the disgust of many Laramie residents. Both attackers were convicted.</span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Now -- tell me seriously that there are no qualitative differences between the above crime, which occurred in 1999, and the hypothetical crime posited earlier. Shepard was killed because he was gay. Attempts have been made by various right-wing commentators and organizations to muddy Shepard's name and character. These attempts do not change the underlying motive or the facts. Perpetrators of hate crimes frequently engage in precisely the "overkill" behavior manifested in the attack on Shepard.</span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">The hatred that motivates such crimes is not directed only towards the individual victim -- it is directed towards all members of the class to which the victim belongs (in Shepard's case, gay Americans). When news of Shepard's attack circulated throughout the gay community, many members of that community felt threatened and vulnerable.</span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">That is the difference between hate crimes and crimes such as muggings. Hate crimes are intended to intimidate all members of the class to which the victim belongs, whether that class consists of gay Americans, black Americans, Asian Americans, or any other group of Americans, the members of which share a real or perceived common characteristic. These crimes occur <strong><em>because of who the victim is</em></strong>, as opposed to whether or not the victim is carrying money.</span></div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">The lies told about the proposed measure are almost beyond belief. On May 2, 2007, the "Human Rights Campaign" (HRC) -- a gay organization that lobbies Congress for the passage of measures such as the proposed addition of sexual orientation to the list of characteristics encompassed by the existing federal hate crimes statute -- released a statement cataloging the lies and filthy tricks engaged in by some so-called "pro-family" organizations.<br /><br />One of the lies circulated by these groups asserts that there currently exists no federal hate crimes statute at all, and that the proposed measure would therefore be the first, and only, piece of federal legislation addressing hate crimes, and that it would only enhance penalties for those hate crimes motivated by hatred of the victim's sexual orientation. In fact, the federal hate crimes statute has existed for 40 years, and it <strong><em>already</em></strong> strengthens punishments for crimes motivated by hatred of the victim's race, color, national origin, or religion.<br /><br />One of the most frequently promoted lies by the opposition is that the hate crimes law will make anti-gay bigots criminally liable for their hate speech. While the writer believes it to be fundamentally un-American and un-Christian to embrace the message of white supremacists and hate groups, the religious right has nothing to fear from the hate crimes bill, as it applies only to <strong><em>acts of violence</em></strong>. Nothing in this act would prohibit the lawful expression of one’s deeply held religious beliefs. As ugly and inflammatory as these comments can be, people will remain free to say things such as: “Homosexuality is sinful,” “Homosexuality is an abomination” or “Homosexuals will burn in Hell.” Yet we hear constant, incessant whining about the possibility of the proposed measure being used to prosecute religious figures who voice their disapproval of gay relationships and / or of gay people. This whining conveniently overlooks the fact that any attempt to apply this measure against religious figures would fall flat as a matter of constitutional law. The US Supreme Court, in <strong><em>Brandenburg v. Ohio</em></strong>, 395 U.S. 444 (1969), made it clear that speech or advocacy cannot be criminalized "...except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Obscenity is another form of speech which does not enjoy First Amendment protection, but that is not relevant to this issue.)</span></div><div align="justify"><span style="font-family:verdana;"></span> </div><div align="justify"><span style="font-family:verdana;">Thus, a priest or minister of religion could not possibly be prosecuted under the proposed legislation, unless he or she actually incites a riot. Is that really what conservatives fear? Do these conservatives and fundamentalists wish to incite their followers to riot?</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">The organization that calls itself the "<strong>Family Research Council</strong>" (<strong>FRC</strong>) stands front and center in promoting the lie that the addition of sexual orientation to the existing federal hate crimes statute will result in ministers of religion and priests being prosecuted for preaching that homosexuality is “sinful” or wrong. The FRC is currently peddling a DVD that purports to show "shocking examples of how hate crime laws trample free speech, lead to arrests, and censor speech." This 40-minute DVD features Dr. D. James Kennedy (of the notoriously homophobic organization named "Coral Ridge Ministries," which peddles the lie that homosexuality is an illness that can be "cured" through faith in Christ and “reparative therapy”); Christine Sneeringer, billed as an "ex-lesbian;" pastor Ake Green; and pastor Danny Nalliah (among other figures). Pastors Ake Green was arrested under hate crimes legislation for anti-gay “witnessing,” and Pastor Danny Nalliah was prosecuted under hate crimes legislation for anti-gay “witnessing.”</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">What is <strong><em>not</em></strong> mentioned on the FRC Web site relative to these prosecutions</span><span style="font-family:verdana;">, however, is the fact that pastor Ake Green was arrested in <strong><em>Sweden</em></strong> in 2004 for anti-gay preaching under <strong><em>Swedish</em></strong> law, and pastor Danny Nalliah was prosecuted in <strong><em>Australia</em></strong>, under <strong><em>Australian</em></strong> law. Sweden included sexual orientation in its hate crimes legislation in 2004, and Green became the first person to be prosecuted under this law (as amended). The Swedish hate crimes legislation permits for the imprisonment of persons who demonstrate “disrespect” for gay people, and it was under this amended non-US legislation that Green was prosecuted. What the FRC utterly fails to mention, furthermore, is the fact that the Swedish Supreme Court (upholding the judgment of an intermediate appellate court) <strong><em>overturned</em></strong> Green’s conviction in a unanimous decision. As discussed above, preaching that homosexuality is a sin cannot be prosecuted in the US, due to the fact that the US (unlike Sweden or Australia) has a First Amendment that guarantees all persons near-absolute rights to free speech, including the right to advocate breaking the law (see <strong><em>Brandenburg</em></strong>, supra).</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:Verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Then there is the talk of "special rights" being afforded gay Americans by such legislation. Why is this argument is not raised with respect to other groups protected by the proposed legislation? Only when sexual orientation is added to the language of the existing legislation do people cry out about "special rights" being afforded members of the gay community by such legislation. The FRC and other conservative groups do not seem to have any problems with hate-crimes legislation unless this legislation enhances penalties handed down to people convicted of committing hate crimes against gay Americans. Then, and only then, does the hard right claim that hate crimes legislation confers “special protections” on members of the groups included in the protective ambit of such legislative measures.<br /><br />The US Supreme Court, throwing out a state constitutional amendment voted into existence by the citizens of the State of Colorado in 1992 ("Amendment 2"), had the following to say about the "special protections" supposedly sought by gay Coloradans:<br /><br />"We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society" (<strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996)).<br /><br />Stephen Bennett -- a spokesman for the anti-gay group called "<strong>Concerned Women for America</strong>" (<strong>CWA</strong>) -- used his action network to promote the anti-gay videos of John Smith, a white-supremacist filmmaker with numerous videos posted on YouTube.com. Smith's hateful online video collection includes such titles as “Keep America White,” “Black Intelligence” (a video purporting to prove that blacks are mentally inferior to whites) and “Hitler” (a homage to Hitler on the occasion of his birthday).</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">YouTube.com – which hosts movies made by ordinary people who wish to publish their movies – pulled these anti-gay videos, which violated YouTube.com's terms of service. Peter LaBarbera -- a former employee of both CWA and the FRC -- picked up where YouTube.com left off circulation of these anti-gay videos, posting them on a religious right Web site in Massachusetts.<br /><br />In a particularly disgusting insult to the memories of the victims of the Virginia Tech massacre, Tony Perkins (President of the FRC) and Matthew Barber (spokesman for CWA) wrote the following statements, respectively, to argue against enactment of H.R. 1592:<br /><br />"Under this legislation, the crimes at Virginia Tech, which some are calling one of the deadliest rampages in U.S. history, would not be punishable to the level of these so-called ‘hate crimes.’ If the House approves H.R. 1592 and the Senate follows, a homosexual would have more federal protection under the law than the 32 victims of last week’s massacre." (statement by Perkins)<br /><br />"The FBI’s latest statistics show that there were zero ‘hate crimes’ murders committed against homosexuals or those perceived to be homosexual in 2005; yet we already know of 32 so-called ‘hate crimes’ murders committed against perceived ‘rich kids’ in a single day. But under H.R. 1592, those ‘rich kids’ would shamefully be denied the same protections and justice as homosexuals. The whole ‘hate crimes’ concept really places logic and reason on its head." (statement by Barber)<br /><br />Not to be outdone, the "Traditional Values Coalition" (TVC) created and disseminated a <strong><em>fake transcript</em></strong> of the House Judiciary Committee hearing on the hate crimes bill in an attempt to “prove” that the legislation would punish anti-gay thoughts. The falsified transcript did not even remotely resemble the official transcript of the proceeding (see </span><a title="http://tinyurl.com/yvncxp" href="http://tinyurl.com/yvncxp" target="_blank"><span style="font-family:verdana;">http://tinyurl.com/yvncxp</span></a><span style="font-family:verdana;"> to view both the real transcript and the forged transcript).<br /><br />Not content with violating the Ninth Commandment (condemning the bearing of false witness), the TVC produced a “wanted poster” in which Jesus Christ, wearing a crown of thorns, is wanted for violating the proposed hate crimes bill. The poster states that Christ is “wanted for revealing the truth about homosexuality in ‘The Bible’ and encouraging his followers not to offend God by committing such behavior.” The deep-seated, raw hatred of gay people that motivates such groups could not be more evident than is manifested by this depraved attempt to spread flat-out lies, using Christ's name in vain in the process.<br /><br />Furthermore, critics of adding sexual orientation to the grounds included in the proposed legislation forget the fact that the legislation classifies on the basis of sexual orientation -- it does not protect only gay people. Just as a crime would be punishable under this legislation were it to be perpetrated by a heterosexual motivated by animus towards gay people, a crime would similarly be punishable under this legislation were it to be perpetrated by a gay person motivated by animus towards heterosexual people. Conservatives "forget" the fact that such legislation is a sword that cuts both ways. It becomes clear, when one conducts a more searching review of the proposed legislation and its impact, that conservatives are prepared to tell blatant lies in their efforts to derail the proposed legislation. Nobody could prosecute religious figures under this legislation. Nobody could punish thoughts under this legislation.<br /><br />But truth never stood in the way of cultural conservatives, who have lied and spread disinformation up and down the country.<br /></span></div><div align="justify"><span style="font-family:verdana;"><br /><span style="font-size:130%;">PHILIP CHANDLER</span></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-54528761636351881892007-04-23T17:27:00.001+01:002009-03-06T14:09:07.798+00:00Indiana Disgraces America -- Homophobia Rides High.....<div align="justify"><span style="font-family:verdana;">Yet again, the US has embarrassed itself -- this time, in response to an article written by a sophomore at Woodlan Junior-Senior High School, in one of the most morally backward parts of the country (northeastern Indiana).<br /><br />The sophomore, Megan Chase, wrote an article stressing the virtues of tolerance and respect for the differences between gay students and heterosexual students. As a direct result, the school newspaper adviser, Amy Sorrell, now stands to lose her job.<br /><br />I stress what I have stressed in previous messages pertaining to the homophobia that is rife throughout the US. Quite bluntly, the US is morally backwards, obtuse, and childish in its refusal to acknowledge the differences between gay people and heterosexual people. Only in America, in the year 2007, could a school teacher face losing her job as the result of permitting the article in question to be printed.<br /><br />The "controversial" material in question? Read the following, quoted directly from Chase's article:<br /><br />"I can only imagine how hard it would be to come out as homosexual in today's society," she wrote. "I think it is so wrong to look down on those people, or to make fun of them, just because they have a different sexuality than you. There is nothing wrong with them or their brain; they're just different than you."<br /><br />Yes -- this statement, published in the school newspaper, led the school district to recommend the sacking of Amy Sorrell, who has been placed on administrative leave following the publication of this "controversial" statement.<br /><br />I know that this is difficult to believe. As the entire world moves forward and embraces the humanity of gay and lesbian people, America disgraces herself in public. Sorrell now faces the loss of her job -- merely because she permitted the school newspaper to include an article stressing the need for tolerance of people who are different from the majority of their peers.</span></div><span style="font-family:verdana;"><div align="justify"><br />There is one glaring irony to this display of moral infantilism. Because Sorrell works for a public school, which is a political subdivision of the State of Indiana, she can bring suit against the school district for violation of her First Amendment rights -- and should Sorrel bring suit, she stands an excellent chance of winning, given the clear and unambiguous line of decisional law handed down by the US Supreme Court and the US Courts of Appeals with respect to cases of this nature.<br /><br />What is shocking, however, is the fact that the advocacy of tolerance of human differences could lead to the possibility of a school district firing a teacher. What is shocking is the fact that tolerance is seen as being "controversial" and that writing about the difficulties faced by gay and lesbian students as they come out to their peers could become the fodder for a group of bloody-minded, pious, mealy-mouthed hicks.<br /><br />The following statement, made by the assistant superintendent of secondary education and technology, Andy Melin, is illustrative of the mentality of so many Americans, who appear to be incapable of independent thought (that is to say, incapable of dealing with any material that they have not heard uttered from church pulpits):<br /><br />"The way we view it is the broad topic of homosexuality is a sensitive enough issue in our society that the principal deserves to know that it's something the newspaper is going to write about."<br /><br />Unbelievable!</div><div align="justify"> </div><div align="justify">Unbelievable, but true. A bona fide insight into the mindsets of so many self-professed "Christians" in America today.<br /><br />Fortunately, a gay advocacy group named <strong>Parents, Families, and Friends of Lesbians and Gays</strong> (<strong>P-FLAG</strong>) has taken up this issue and is firmly on the side of Sorrell and Chase. Should the school district actually be so stupid as to fire Sorrell in the face of First Amendment jurisprudence that bears directly on this, and similar, situations, the school district will almost certainly lose, and lose big time. Even the most conservative Courts of Appeals have found, consistently, for teachers and students in the face of dilemmas such as that in which Sorrell is now mired.<br /><br />I am a US citizen. There was a time that this made me proud.<br /><br />Now I am ashamed. </span></div><p><span style="font-family:verdana;"></span> </p><p><span style="font-family:verdana;"><span style="font-size:130%;"><strong>PHILIP CHANDLER</strong></span></span></p>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-6277853741465485142007-03-28T08:36:00.001+01:002009-03-06T14:21:42.582+00:00What a Fool Believes......<div align="justify"><span style="font-family:verdana;">In early September 2006, at the International Conference on AIDS hosted in Toronto, South Africa's Minister of Health, <strong>Dr. Manto Tshabalala-Msimang</strong>, was met with boos and hoots of derision when she denounced the role of antiretroviral drugs in the treatment of AIDS, and instead made the claim that a diet of African potatoes, garlic, lemon, and beetroot could keep the disease under control. She made this announcement with the imprimatur of the South African President, Thabo Mbeki, who has long been an HIV denialist and who has repeatedly claimed that antiretroviral drugs are "toxic" and useless in treating AIDS. More specifically, Mbeki has insisted that HIV is not the cause of AIDS, and has instead insisted that this disease is really the outcome of "colonialism" and "apartheid." Five years ago, Mbeki gave a speech in which he stated that conventional views of AIDS causation reinforced the image of Africans as "germ carriers." After bitter accusations from AIDS scientist Malegapuru Makgoba to the effect that Mbeki was responsible for "genocide," Mbeki relented and agreed to distribute antiretroviral medications; however, Mbeki never renounced his view that AIDS is really caused not by HIV but by poverty and "the legacy of apartheid."</span></div><div align="justify"><span style="font-family:verdana;"></span> </div><div align="justify"><span style="font-family:verdana;">Following the Health Minister's announcement that a diet of African potatoes, garlic, lemon, and beetroot could keep the disease at bay, more than 60 internationally acclaimed AIDS scientists, including the putative "co-discoverer" of HIV, Dr. Robert Gallo, demanded that Mbeki fire Dr Manto Tshabalala-Msimang, describing her as an "embarrassment" who has "no international respect." How could Mbeki -- who graduated from the British University of Sussex with a Master's degree in Economics -- have fallen prey to the line of thinking, influenced by Dr. Peter Duesberg, that holds, in the face of overwhelming scientific evidence to the contrary, that HIV is not the cause of AIDS? There are now more than 30 drugs available to treat HIV infection -- nucleoside reverse transcriptase inhibitors and nucleotide reverse transcriptase inhibitors (NRTIs), non-nucleoside reverse transcriptase inhibitors (NNRTIs), protease inhibitors (PIs), fusion inhibitors (FIs), integrase inhibitors (IIs), and adjunctive therapies such as hydroxyurea -- and more drugs become available almost every year as science evolves (one integrase inhibitor was recently released, and another is currently in late-stage testing).</span></div><div align="justify"><span style="font-family:verdana;"></span> </div><div align="justify"><span style="font-family:verdana;">By combining these drugs -- typically by combining protease inhibitors with reverse transcriptase inhibitors and / or non-nucleoside reverse transcriptase inhibitors -- doctors in the US and the UK are now able to keep patients with HIV alive indefinitely. This is not to deny the reality of serious side-effects associated with Highly Active Antiretroviral Therapy (HAART), including lipodystrophy and peripheral neuropathy, but the bottom line is that these drugs are highly effective, when taken in strict compliance with treatment regimens, in preventing the advance of this disease, and are able to suppress HIV to the extent that the most sensitive assays available are no longer capable of detecting the presence of HIV particles in the bloodstream of infected patients. Yet in the country that now has the highest prevalence of HIV in the world, the government insists that these treatments should not be the mainstay of treatment, and instead resorts to measures that caused the scientists who authored the letter demanding the firing of South Africa's Minister of Health to write the following: "To deny that HIV causes AIDS is farcical in the face of the scientific evidence; to promote ineffective, immoral policies on HIV/AIDS endangers lives; to have as health minister a person who now has no international respect is an embarrassment to the South African government. We therefore call for the immediate removal of Dr Tshabalala-Msimang as minister of health, and for an end to the disastrous, pseudo-scientific policies that have characterized the South African government's response to HIV/AIDS."</span></div><div align="justify"><span style="font-family:verdana;"></span> </div><div align="justify"><span style="font-family:verdana;">When confronted with criticism of his handling of HIV / AIDS treatments, Mbeki insists that his detractors are "racists" and that "traditional African medicine" is as effective, if not more so, than established, highly effective modern treatment regimens. AIDS activists and scientists were outraged by the views expressed by Dr. Tshabalala-Msimang in Toronto, and by a display of vegetables as part of the treatment for AIDS at the government stand (no antiretroviral medicines were on display). Yet Dr. Tshabalala-Msimang was selected by Mbeki to become Health Minister precisely <strong><em>because of</em></strong> her discredited and ludicrous views, and because she has expressed the view that antiretroviral medications are both dangerous and useless.<br /><br />It is estimated that as many as one in five South Africans carry HIV, and in some parts of the country, doctors believe that the prevalence of this disease is much higher. As this quackery masquerades as science, the health of between five and 10 million people infected with HIV continues to decline. These people will almost certainly die unless the South African government changes course immediately.<br /></div></span><div align="justify"><span style="font-family:verdana;"><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-40897434392039427992007-03-25T07:50:00.001+01:002009-03-06T14:56:22.641+00:00Why do straight people hate gay people with such vehemence?<div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">The following is a copy of an open letter to the heterosexual community written by gay activist Larry Kramer and published in the <span class="blsp-spelling-error" id="SPELLING_ERROR_0">Los</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_1">Angeles</span> Times on March 24:</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">_____________________________________________________________________</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span> </div><div align="justify"><span style="font-family:verdana;">DEAR STRAIGHT PEOPLE,Why do you hate gay people so much? Gays are hated. Prove me wrong. Your top general just called us immoral. Marine Gen. Peter Pace, chairman of the Joint Chiefs, is in charge of an estimated 65,000 gay and lesbian troops, some fighting for our country in Iraq. A right-wing political commentator, Ann <span class="blsp-spelling-error" id="SPELLING_ERROR_2">Coulter</span>, gets away with calling a straight presidential candidate a faggot. Even Garrison Keillor, of all people, is making really tacky jokes about gay parents in his column. This, I guess, does not qualify as hate except that it is so distasteful and dumb, often a first step on the way to hate. Sens. Hillary <span class="blsp-spelling-error" id="SPELLING_ERROR_3">Rodham</span> Clinton and <span class="blsp-spelling-error" id="SPELLING_ERROR_4">Barack</span> <span class="blsp-spelling-error" id="SPELLING_ERROR_5">Obama</span> tried to duck the questions that Pace's bigotry raised, confirming what gay people know: that there is not one candidate running for public office anywhere who dares to come right out, unequivocally, and say decent, supportive things about us.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Gays should not vote for any of them. There is not a candidate or major public figure who would not sell gays down the river. We have seen this time after time, even from supposedly progressive politicians such as President Clinton with his "don't ask, don't tell" policy on gays in the military and his support of the hideous Defense of Marriage Act. Of course, it's possible that being shunned by gays will make politicians more popular, but at least we will have our self-respect. To vote for them is to collude with them in their utter disdain for us.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Don't any of you wonder why heterosexuals treat gays so brutally year after year after year, as your people take away our manhood, our womanhood, our <span class="blsp-spelling-error" id="SPELLING_ERROR_6">personhood</span>? Why, even as we die you don't leave us alone. What we can leave our surviving lovers is taxed far more punitively than what you leave your (legal) surviving spouses. Why do you do this? My lover will be unable to afford to live in the house we have made for each other over our lifetime together. This does not happen to you. Taxation without representation is what led to the Revolutionary War. Gay people have paid all the taxes you have. But you have equality, and we don't.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">And there's no sign that this situation will change anytime soon. President Bush will leave a legacy of hate for us that will take many decades to cleanse. He has packed virtually every court and every civil service position in the land with people who don't like us. So, even with the most tolerant of new presidents, gays will be unable to break free from this yoke of hate. Courts rule against gays with hateful regularity. And of course the Supreme Court is not going to give us our equality, and in the end, it is from the Supreme Court that such equality must come. If all of this is not hate, I do not know what hate is.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Our feeble gay movement confines most of its demands to marriage. But political candidates are not talking about — and we are not demanding that they talk about — equality. My lover and I don't want to get married just yet, but we sure want to be equal.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">You must know that gays get beaten up all the time, all over the world. If someone beats you up because of who you are — your race or ethnic origin — that is considered a hate crime. But in most states, gays are not included in hate crime measures, and Congress has refused to include us in a federal act.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Homosexuality is a punishable crime in a zillion countries, as is any activism on behalf of it. Punishable means prison. Punishable means death. The U.S. government refused our requests that it protest after gay teenagers were hanged in Iran, but it protests many other foreign cruelties. Who cares if a faggot dies? Parts of the Episcopal Church in the U.S. are joining with the Nigerian archbishop, who believes gays should be put in prison. Episcopalians! Whoever thought we'd have to worry about Episcopalians?</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Well, whoever thought we'd have to worry about Florida? A young gay man was just killed in Florida because of his sexual orientation. I get reports of gays slain in our country every week. Few of them make news. Fewer are prosecuted. Do you consider it acceptable that 20,000 Christian youths make an annual pilgrimage to San Francisco to pray for gay souls? This is not free speech. This is another version of hate. It is all one world of gay-hate. It always was.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Gays do not realize that the more we become visible, the more we come out of the closet, the more we are hated. Don't those of you straights who claim not to hate us have a responsibility to denounce the hate? Why is it socially acceptable to joke about "girlie men" or to discriminate against us legally with "constitutional" amendments banning gay marriage? Because we cannot marry, we can pass on only a fraction of our estates, we do not have equal parenting rights and we cannot live with a foreigner we love who does not have government permission to stay in this country. These are the equal protections that the Bill of Rights proclaims for all?</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Why do you hate us so much that you will not permit us to legally love? I am almost 72, and I have been hated all my life, and I don't see much change coming.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">I think your hate is evil.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">What do we do to you that is so awful? Why do you feel compelled to come after us with such frightful energy? Does this somehow make you feel safer and legitimate? What possible harm comes to you if we marry, or are taxed just like you, or are protected from assault by laws that say it is morally wrong to assault people out of hatred? The reasons always offered are religious ones, but certainly they are not based on the love all religions proclaim.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">And even if your objections to gays are religious, why do you have to legislate them so hatefully? Make no mistake: Forbidding gay people to love or marry is based on hate, pure and simple.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">You may say you don't hate us, but the people you vote for do, so what's the difference? Our own country's democratic process declares us to be unequal. Which means, in a democracy, that our enemy is you. You treat us like crumbs. You hate us. And sadly, we let you.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">_____________________________________________________________________</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">This is a powerful letter. Larry Kramer has been a passionate gay rights activist for many years, and he has written numerous (and in some cases, very controversial) columns, books, and articles about the manner in which gay men and lesbians are treated at the hands of their heterosexual counterparts. This commentator agrees with almost everything written in Kramer's letter, with one glaring exception. Kramer states the following: <strong>"Gays do not realize that the more we become visible, the more we come out of the closet, the more we are hated."</strong></span></div><div align="justify"><strong><span style="font-family:Verdana;"></span></strong> </div><div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><div align="justify"><strong><span style="font-family:verdana;"></span></strong></div><div align="justify"><span style="font-family:verdana;">This commentator believes that, at minimum, the above statement requires qualification.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Poll after poll has shown that those heterosexuals who state that they know gay people personally tend to be less homophobic than those heterosexuals who state that they do not know any gay people personally. Of course, this could reflect bias in that those respondents who state that they do not know any gay people personally could be denying the fact that they actually do know gay people personally; these respondents may feel that, by distancing themselves from gay people through denial of personal relationships with gay people, their hatred of gay people becomes less difficult to admit. This is certainly a factor that should be explored before taking the results of these polls at face value.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Anecdotal evidence, however, supports the contention that those individuals who claim to know gay people at a personal level are less likely to be homophobic than is the case with respect to those individuals who claim not to know gay people at a personal level. I know many gay people, and am aware of the experiences which many of them underwent upon coming out to their friends, family members, fellow employees, and neighbors. In the vast majority of cases (including that of my own personal experience when I came out), gay adults have reported receiving unexpected support from some of the most unexpected quarters; several recent conversations with gay men who had just come out of the closet were both interesting and thought-provoking. While there will always be people blinded by zealotry and raw hatred who are prepared to sever relationships with members of their own families based on the sexual orientation of those members, most parents realize that their adult children are the only adult children they will ever have, and those parents who do not immediately accept their sons' or daughters' sexual orientation usually (but not always) continue to love their children, and most (but not all) of these parents eventually accept the fact that the sexual orientation of their children is something for which they are neither "responsible" nor to be "blamed"; many such parents educate themselves about sexuality and become supportive and accepting of their children. Note that the writer employs the term "accepting" as opposed to "tolerant;" these two attitudes are worlds apart, and tolerance very rapidly disintegrates when passions are aroused.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Some of the ugliest and most hate-filled organizations in the US (organizations bearing such benign-sounding names as the "American Family Association" (<span class="blsp-spelling-error" id="SPELLING_ERROR_7">AFA</span>) (at </span><a href="http://www.afa.net/"><span style="font-family:verdana;">http://www.afa.net/</span></a><span style="font-family:verdana;">) and the "Family Research Council" (<span class="blsp-spelling-error" id="SPELLING_ERROR_8">FRC</span>) (at </span><a href="http://www.frc.org/"><span style="font-family:verdana;">http://www.frc.org/</span></a><span style="font-family:verdana;">)) fully understand the difference between tolerance and acceptance, and will do just about anything to ensure that neither tolerance nor acceptance of gay Americans becomes the prevailing norm (perhaps recognizing the fact that tolerance can and does transmute into acceptance under the right societal conditions). The former organization is particularly vitriolic and unapologetic in its frenzied attempts to link homosexuality (and male homosexuality in particular) to pedophilia, incest, bestiality, and religious bigotry. The <span class="blsp-spelling-error" id="SPELLING_ERROR_9">AFA</span> routinely calls for its members to boycott corporations that extend domestic partner benefits to the spouses of their gay employees; right now, the <span class="blsp-spelling-error" id="SPELLING_ERROR_10">AFA</span> is engaged in an almost laughable attempt to blackmail Ford Motor Company into dropping its gay-friendly policies (specifically, its "promotion of homosexual marriage" and its more general adoption of "the homosexual agenda" -- Ford has supposedly endorsed voter guides that urge the defeat of state constitutional amendments banning gay marriage, and Ford regularly advertises its vehicles in publications targeted towards gay audiences). (NOTE: Since writing this article, the AFA has dropped its boycott, claiming that Ford complied with the AFA's demands; in fact, Ford has made no substantive changes whatsoever, and the AFA has clearly lost its nerve.) This commentator refers to this boycott as "almost laughable" due to the fact that, while it is painfully obvious to any clear-thinking individual that such a "boycott" is likely to generate <strong><em>pro</em></strong>-Ford attitudes and consumer brand name loyalty in the gay community (which has proved itself, time and time again, to be extremely loyal to corporations that include the gay community in their outreach efforts, and that offer gay employees the same spousal benefit packages as are offered to straight employees), the extent of the sheer hatred espoused by this boycott is truly frightening. The <span class="blsp-spelling-error" id="SPELLING_ERROR_11">AFA</span> posts a link on its Web site to an excerpt from the <span class="blsp-spelling-error" id="SPELLING_ERROR_12">FX</span> channel's drama named "Dirt," referring to this excerpt as an "explicit, sickening homosexual scene." The scene in question shows a passionate same-sex kiss followed by oral sex (the latter is seen from a distance, as is done in literally countless heterosexual scenes in literally countless heterosexual-oriented movies and soap operas). Because Ford was one of several sponsors of this drama, Ford has been targeted in the cross-hairs of the <span class="blsp-spelling-error" id="SPELLING_ERROR_13">AFA's</span> puny boycott. Fortunately, Ford refuses to be intimidated or cowed into submission by these religious fanatics; when this commentator called Ford to commend Ford for its pro-gay attitude and to warn Ford executives that the <span class="blsp-spelling-error" id="SPELLING_ERROR_14">AFA</span> was orchestrating a mail-in campaign to flood the C.E.O. (Alan <span class="blsp-spelling-error" id="SPELLING_ERROR_15">Mulally</span>) with emails, this commentator was assured by Ford management that Ford executives recognized orchestration when they saw it, and gave the AFA orchestration the back of its corporate hand.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">What can be distilled from the above is the extent to which some organizations (the <span class="blsp-spelling-error" id="SPELLING_ERROR_16">AFA</span> being just one right-wing group of religious fanatics) are willing to wear their unadulterated hatred of gay men and lesbians on their collective sleeves. Kramer is correct in noting that attitudes such as these are, in any meaningful sense of the word, evil. Kramer is also correct in noting that not one politician in this country actually stood up to Marine General Peter Pace, Chairman of the Joint Chiefs, when Pace made his statement referring to gay Americans as immoral. The best that the gay community received in terms of a defense were <span class="blsp-spelling-error" id="SPELLING_ERROR_17">luke</span>-warm rejections of this position by some of the politicians that we like to think of as allies. Kramer is correct in stating that there is <strong><em>not one</em></strong> politician who will not hesitate to sell us down the river. We are reduced to voting for the politician who will do the gay community the least damage once elected, as opposed to voting for the candidate who will strive to make America live up to the promise, enshrined in stone on the pediment of the US Supreme Court building, of equal justice under law. This tells us volumes about the gap -- the gap between what is said and what is done in our society; between what is promised and what is actually delivered. This commentator observed then-President Bill Clinton sell the gay community down the river as his very first act of political maneuvering -- as alluded to elsewhere on this blog, Clinton folded like a house of cards upon being presented with the first hot potato of his career as President, crafting (with a little help from the military) the ludicrous "don't ask, don't tell" (<span class="blsp-spelling-error" id="SPELLING_ERROR_18">DADT</span>) policy which is actually a policy which encourages gay <span class="blsp-spelling-error" id="SPELLING_ERROR_19">servicemembers</span>, as a matter of both fact and law, to tell lies about themselves and to hide the truth about themselves. Again, it is with respect to self-identification that this commentator disagrees with Kramer's assertion that "...<strong>the more we become visible, the more we come out of the closet, the more we are hated</strong>." The bastards who fashioned the <span class="blsp-spelling-error" id="SPELLING_ERROR_20">DADT</span> policy were well aware of the power of coming out to transform the lives of both gay people and those who love gay people, whether as relatives or as friends. The authors of <span class="blsp-spelling-error" id="SPELLING_ERROR_21">DADT</span> knew <strong><em>exactly</em></strong> what they were doing when they implemented a policy intended to prevent gay people from coming out of the closet. No single tool is more oppressive than the closet, and efforts by right-wing politicians have, consistently, been to force gay people back into the closet. Commentator Bill <span class="blsp-spelling-error" id="SPELLING_ERROR_22">Boushka</span> has written about this very issue extensively in his book "Do Ask, Do Tell," in which he takes a scalpel to this policy and examines the shattering impact that it has on the self-esteem and self-identity of those <span class="blsp-spelling-error" id="SPELLING_ERROR_23">servicemembers</span> who labor under its yoke.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">Kramer also identifies the manner in which Bush has packed virtually every Article III court (<span class="blsp-spelling-corrected" id="SPELLING_ERROR_24">including</span> the US Supreme Court) with jurists who are less than friendly to gay men and lesbians. However, notwithstanding the seriousness of this development, we have to acknowledge that a <strong><em>conservative</em></strong> US Supreme Court handed down <strong><em><span class="blsp-spelling-error" id="SPELLING_ERROR_25">Romer</span> v. Evans</em></strong>, 517 U.S. 620 (1996), effectively halting the movement to exclude gay Americans from the protective ambit of the Fourteenth Amendment's Equal Protection Clause, and that a <strong><em>conservative</em></strong> US Supreme Court handed down <strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003), rendering all state sodomy laws unconstitutional as applied to consensual sexual activity between same-sex partners in private, non-commercial settings. These were crucial decisions, reflecting a sea change in the manner in which the federal judiciary now treats gay Americans. Furthermore, we have won the right to marry, either in both name and substance, or in substance alone, by invoking state constitutional analysis before state supreme courts. Gay marriage is now legal in both name and substance in Massachusetts, and in substance but not name in New Jersey, Connecticut, and Vermont. New Hampshire is poised to become the next state to enact a comprehensive civil unions statute that will grant to gay couples all of the rights and responsibilities (at the state level) of heterosexual marriage, and California could well become another state to enact gay marriage in both name and substance (as nearly happened in 2006, when this measure was passed by both chambers of the legislature but vetoed by Governor Schwarzenegger).</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">We need only look to the UK to see how different the attitudes of UK citizens are towards gay Britons relative to the attitudes of US citizens towards gay Americans. Civil Partnerships were backed by both the New Labor party <strong><em>and</em></strong> by the Conservative Party. Gay men and women are open about their sexual orientation to a much greater degree than is the case in the US, and British law flatly prohibits discrimination in employment on the basis of sexual orientation (the legislation in question is actually much broader, and will be discussed elsewhere). In most parts of the UK, sexual orientation is simply not an issue. Most UK citizens simply do not seem to care about the sexual orientation of their neighbors. The British armed forces have managed to integrate gay servicemembers into their ranks with very few problems. The writer does not discount the gay-bashing and abuse that does occur from time to time, but it is not nearly as prevalent and as vicious as is the case in the US. This is reflected in art, culture, and popular music. Whereas "The Pet Shop Boys" is only mildly successful in terms of sales and market impact in the US, this group is a huge success in the UK -- to the extent that both gay and straight British citizens are familiar with the lyrics and the music of this group (which is referred to as a "notorious" homosexual band by the FRC and other right-wing anti-gay American organizations). Other nations are much more accepting of gay citizens than is the US.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;">South Africa became the latest nation to offer full gay marriage to those of its gay citizens who wish to marry. In doing so, South Africa joined Spain, Belgium, Germany, The Netherlands, and Canada in offering marriage in both name and substance. The UK, France, Denmark, Sweden, Finland, Norway, Iceland, and several South American countries have all adopted sweeping and comprehensive measures offering gay marriage in all but name to their citizens. As the US falls further and further behind the curve, it will become subject to increased ridicule. The time will come when gay industrialists, skilled laborers, and other much-needed professionals will refuse to enter the US upon being informed, at entry, that their relationships with their spouses will be nullified as soon as they set foot on American soil.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;">Hopefully, our state-by-state strategy, which has won us four states to date, will continue to succeed, even in the face of state constitutional amendments prohibiting state supreme courts from recognizing gay marriages. Many states have rejected such proposed amendments to their constitutions, and Kramer's unadulterated pessimism may prove to be exaggerated.</span></div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:Verdana;"></span> </div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;"></span></div><div align="justify"><span style="font-family:verdana;font-size:130%;">PHILIP CHANDLER</span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com1tag:blogger.com,1999:blog-6705590065739638649.post-53466974473334189442007-03-19T00:40:00.001+00:002009-03-06T15:10:26.159+00:00The so-called "Don't Ask, Don't Tell" policy......<div align="justify"><span style="font-family:verdana;">The US now stands as perhaps the only Western nation to retain a bigoted and entirely impractical attitude towards those of its citizens who wish to join the military and who are gay. Under the so-called "Don't Ask, Don't Tell" (DADT) policy, any statement by a servicemember to the effect that he or she is gay -- whether uttered in a public forum or written in a personal diary -- automatically triggers "separation" proceedings, resulting in the servicemember being dismissed from the armed forces. This cruel and bigoted policy prohibits recruiters from asking applicants about their sexual orientation, yet some recruiters continue to do so, notwithstanding military regulations prohibiting this question from being asked of the applicant. The policy was fashioned after ex-President Bill Clinton folded like a house of cards on being presented with the first political hot potato as a sitting President. Instead of standing firm on his promise that, if elected, he would issue an executive order scrapping the prohibition against gay people serving in all arms of the military, he displayed the backbone of a squid, groveling and kowtowing to the armed forces (and the hard right) in the face of protests from the some of the generals under his command, enacting the so-called DADT policy that now stands as a supposed "compromise."<br /><br />Congress then acted, codifying the ban on gay servicemembers and making it even harsher. Federal law now states that "homosexuality is incompatible with military service" (hearkening implicitly back to the days in which homosexuality was considered to be a mental illness, before both the American Psychiatric Association and the American Psychological Association dropped homosexuality from the official nosology of mental disorders (the "Diagnostic and Statistical Manual of Mental Disorders," which is now in its Fourth Edition)). Federal law bluntly prohibits anybody who is gay from serving in the armed forces, whether or not that person is open about his or her sexual orientation. The so-called "compromise" is therefore of extremely dubious legality, since the regulations described above are supposedly intended to permit closeted gay US citizens to serve in the armed forces. Right-wing groups have tried to pressure the Executive branch of the US government into scrapping the policy in its entirety and reverting to the old regulations, in which individuals wishing to join the armed forces are asked about their sexual orientation and are prohibited from serving if they are gay, regardless of whether or not they are closeted. Ironically, some gay rights organizations and activists would prefer a return to the old, total ban, to highlight the hypocrisy of the armed forces.<br /><br />This hypocrisy derives from the fact that both the old ban and the current DADT ban appear to apply only in times of peace. During the Vietnam war, gay draftees were frequently permitted or forced to serve, and were then dishonorably discharged upon returning to the US. During the first Iraq war, many gay men and lesbians whose status became known during their tour to Iraq were permitted to continue serving, only to be discharged upon their return to the US. (By then, honorable discharges were usually granted, notwithstanding the cruelty and stupidity of this ban.) As other activists and commentators (e.g. Bill Boushka) have observed, the hypocrisy of the old policy could at least be displayed and employed as a tool to shame those US citizens possessing any semblance of a sense of fairness, whereas the hypocrisy of DADT can be hidden by false claims to the effect that gay servicemembers discharged from the armed forces under this policy were "flaunting" their sexual orientation.<br /><br />Officers are supposed to ignore rumors about the sexual orientation of a gay servicemember who does not state that he or she is gay. The policy is truly bizarre in its Byzantine configurations. Should a member of the armed forces be sighted in a gay bar that has not explicitly been declared off-limits to members of the armed forces, that piece of evidence, alone, does <strong><em>not</em></strong> constitute a statement that, or proof to the effect that, the servicemember in question is gay, and cannot be used, in and of itself, to initiate an investigation into the sexual orientation of that servicemember. Should a servicemember be seen marching in a gay rights parade, that piece of evidence, in and of itself, is also not supposed to trigger such an investigation. Should a servicemember read gay political literature, that piece of evidence, in and of itself, is also not supposed to trigger an investigation. Should a servicemember be seen kissing another member of the same sex, however, an investigation can be triggered.<br /><br />Once an investigation is triggered, all hell can break loose. The servicemember can be questioned about his or her sexual orientation, and cannot invoke the Self Incrimination Clause of the Fifth Amendment by refusing to answer these questions. Civilians who know, or who are related to, the servicemember can be subpoenaed and forced, under threat of being incarcerated for civil contempt of court, to answer questions about the servicemember. The brother of a man who is being investigated can be forced to testify before a military tribunal as pertains to his knowledge of his brother's sexual orientation. Mothers can be hauled before military tribunals and can be forced to testify as to the sexual orientation of their children. The telephone of a suspected gay servicemember can be tapped. His or her hard drive can be confiscated for the purpose of forensic examination to find "incriminating" evidence (the email equivalent of love letters, gay pornography, etc.). Internet Service Providers (e.g. AOL) can be, and have been, complicit (whether willingly or reluctantly) in providing information about the identities of gay servicemembers who choose screen names (e.g. NavyBoy22) that reflect the fact that they are both gay and actively serving in the armed forces. The former employer of the servicemember in question can be forced to answer questions about the servicemember's social activities (to the extent that the former employer has such knowledge). The servicemember's mail can be intercepted and read. The writer cannot overemphasize the fact that all of these techniques can be, and in many cases have been, invoked in efforts to establish that servicemembers are gay.<br /><br />The constitutionality of the DADT policy has been tested in federal court, and although the US Supreme Court has never addressed this issue directly, it has refused to grant certiorari in those cases that have been appealed to the intermediate courts of the US federal judiciary (the US federal judiciary has three tiers -- the Federal District Courts, the US Courts of Appeals, and the US Supreme Court). Those US Courts of Appeals which have heard cases arising from judgments handed down by the Federal District Courts have found for the US government in those instances in which the constitutionality of the DADT policy has been tested. However, the US Supreme Court has never issued a writ of certiorari (a decision to take an appeal from a lower court -- in most cases, one of the US Courts of Appeals) relative to a case in which the constitutionality of the DADT policy has been upheld. Refusal by the US Supreme Court to grant certiorari does <em><strong>not</strong> </em>amount to endorsement of the decision of the lower courts, however, and recent changes in case law pertaining to the rights of gay Americans (e.g. <strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996), <strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003)) may pave the way for the US Supreme Court to grant certiorari in a future case in which the constitutionality of the DADT policy and the underlying federal legislation is tested. In <strong><em>Romer</em></strong>, the Court struck down a Colorado state constitutional amendment which would have (1) repealed all statutes, ordinances, executive orders, and policies, applicable to both the public and the private sectors, prohibiting heterosexuals from discriminating against gay Coloradans in employment, housing, access to places of public accommodation (e.g. restaurants, hotels), and the extension of credit, and which would have (2) prohibited any governmental entity from ever again passing similar, or more protective, measures to protect gay Coloradans from such discrimination (the Court held that this amendment, known as Amendment 2, violated the Equal Protection Clause of the Fourteenth Amendment on its face; the decision was written in tones sympathetic to gay Coloradans, who prevailed when the Court held that Amendment 2 reflected animus towards gay Coloradans, striking down the Amendment on the grounds that giving effect to animus towards a politically unpopular group of people can never, in and of itself, constitute a legitimate state interest). In <strong><em>Lawrence</em></strong>, the Court struck down the Texas "homosexual conduct" statute (and, by extension, all other anti-gay sex statutes, which existed in about 14 states at the time that the Court handed down its decision), declaring it to be violative of the Due Process Clause of the Fourteenth Amendment; this decision was similarly written in tones stressing the dignity of the lives of gay Americans, further emphasizing that laws intended to inflict injury on any group of Americans for purely "moral" reasons cannot be sustained (A.J. O'Connor wrote a concurrence in which she joined in the judgment of the majority, employing the Equal Protection Clause of the Fourteenth Amendment to declare that "moral disapproval" is not a legitimate state interest and that "we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.").<br /><br />Recent changes in the composition of both the House of Representatives (very roughly equivalent to the House of Commons in the UK in terms of its position in the constitutional structure of the US) and the Senate (even more roughly equivalent to the House of Lords in the UK in terms of its position in the constitutional structure of the US) have made both legislative bodies more gay-friendly, although the US remains morally backwards when compared to the UK in terms of the manner in which both nations treat their gay citizens (Civil Partnerships, which grant to gay couples who enter into them here in the UK all of the rights and responsibilities of marriage, were supported by both the New Labor and the Conservative Parties; in the US, only one state (Massachusetts) permits gay marriage in both name and substance, and only three states permit Civil Unions, which are identical to gay marriage in substance but not in name (New Jersey, Connecticut, and Vermont) (New York and California have created domestic partnerships, which grant to gay couples a small subset of the rights granted to gay couples who are married or who are in civil unions)). The outcome of the next Presidential election will be crucial to the issues of gay marriage, Civil Unions, Domestic Partnerships, and the right of gay Americans to serve in the armed forces on the same terms as heterosexual Americans. Should a Democrat win the Presidential elections, the ludicrous DADT policy could well be overturned. Attitudes towards gay Americans have undergone a very real shift since the DADT policy was implemented in 1993, as reflected in <strong><em>Romer</em></strong> and <strong><em>Lawrence</em></strong> (<strong><em>Lawrence</em></strong> overturned a 1986 opinion (<strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986)), in which the Court upheld anti-gay sex statutes in tones of sneering contempt for the gay plaintiff and, by extension, for all gay Americans; the <strong><em>Lawrence</em></strong> majority bluntly and unequivocally repudiated its own analysis in <strong><em>Bowers</em></strong>, stating that "...The central holding of <strong><em>Bowers</em></strong> has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons...<strong><em>Bowers</em></strong> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <strong><em>Bowers v. Hardwick</em></strong> should be and now is overruled."). Although the US remains almost unbelievably obtuse and morally backwards when compared to the UK, attitudes have changed, and more and more states have enacted statewide antidiscrimination statutes in the absence of action by the US government.<br /><br />Those who wish to see the abolition of the DADT policy and who wish to see the US catch up with other Western nations now face the real possibility that, at some point in the foreseeable future, this wish could be realized. It is up to gay Americans and those who care for them -- friends and family -- to keep this issue alive by putting this issue front and center at every possible opportunity. With two major victories behind it, the gay community cannot to slow down or to dwell on these successes. Equality results from attitudinal change, which in turn is a reflection of evolving social norms. Young people are, as a demographic group, more sympathetic to gay Americans, and the writer believes that outreach to this group is critical if we are to succeed in joining our allies in the creation of a fully integrated and functional military.<br /></span></div><div align="justify"><span style="font-family:verdana;"><br /><span style="font-size:130%;">PHILIP CHANDLER</span></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com2tag:blogger.com,1999:blog-6705590065739638649.post-66257127559971563802007-02-19T16:18:00.001+00:002009-03-06T15:21:32.143+00:00An Open Letter to the American Family Association......<div align="justify"><strong><span style="font-family:verdana;">To: The American Family Association (</span></strong><a href="http://www.afa.net/"><strong><span style="font-family:verdana;">www.afa.net</span></strong></a><span style="font-family:verdana;"><strong>)</strong><br /><strong></strong></span></div><div align="justify"><br /><span style="font-family:verdana;">Dear Sir / Madam,<br /><br /><br />I am profoundly disturbed by your repeated defamation and vilification of the gay community, both here and abroad. In writing this, I realize full well that I am wasting my time – but I consider it to be my moral and social imperative to ensure that efforts to harm a minority – particularly when those efforts are motivated by religious bigotry – are, at a bare minimum, subjected to comment and dispassionate analysis.<br /><br />My understanding is that one of the largest “ex-gay” organizations in the US is an organization named Exodus International. This organization claims to have a very high “success” rate in terms of “curing” homosexuality – but has never released the raw data that would permit informed professionals to determine the manner in which this “success” rate is computed or derived. The sharing of information – particularly information pertaining to issues that generate considerable controversy – is considered to be central to the advancement of the scientific process, and failure to provide non-biased professionals with raw data is indicative of what can only, sadly, be described as a complete lack of intellectual integrity. How are scientists to evaluate the claims of “sexual reorientation” when those organizations responsible for such claims refuse to share information pertaining to the manner in which they conducted their studies?<br /><br />I am, however, aware of the fact that two of the founders of Exodus International fell in love with each other and denounced the efforts of Exodus International as being both fruitless and damaging to the psyches of vulnerable gay men and lesbians who feel pressured by society to conform to strict notions of gender roles and identifies, regardless of whether or not such efforts could ever be successful. This speaks volumes about the integrity of Exodus International and, by extension, other organizations that make reckless and ill-informed claims about the lives of gay men and lesbians.<br /><br />I am also aware that the poster child of the “ex-gay” movement – John Paulk – was thrown out of his position at the Family Research Council after he was caught chatting up men for sex in a gay bar off DuPont Circle, in Washington, DC, several years ago. He spent about an hour in this bar. When a gay activist recognized Paulk and telephoned another gay activist, who arrived with a camera and started taking pictures, Paulk beat a hasty retreat from this bar. Paulk then made a number of excuses for being in the gay bar (which is widely known as a “pick-up” bar) – including the claim that he merely wished to use the restroom (despite the fact that there were numerous restaurants and stores near the gay bar at which he could have relieved himself), followed by the claim that he was simply “interested” in seeing how his life had changed since his “conversion” to heterosexuality.<br /><br />The hard, cold fact is that there is not one – I repeat, not one – reputable, unbiased psychiatric or psychological professional that considers homosexuality to be a mental illness, and that no reputable scientific authorities believe that it is possible for a person to undergo a change of sexual orientation. Some forms of organic brain damage (Kluver-Bucy syndrome, which is the result of bilateral damage to the temporal lobes of the neocortex, is an example) are associated with abrupt reversal of sexual polarity – which, when viewed from within the scientific paradigm to which I allude above, as opposed to the religious fanaticism to which you subscribe, would seem to reinforce the assertion of the overwhelming body of mental health professionals to the effect that sexual orientation is definitely a function of biology as opposed to personal choice. It is certainly true that gay men and women can become chaste and refuse to engage in behavior that, for them, comes naturally – or can even marry members of the opposite sex (as in the case of John Paulk) – but this does not render them heterosexual. A heterosexual man or woman who, for religious or other reasons, becomes celibate (as in the case of Catholic priests) does not cease to be heterosexual by virtue of the creation of a behavioral vacuum. What applies to heterosexuals also applies to gay men and lesbians – a young gay man can be terrorized by religious fanaticism into chastity, but that does not change his sexual orientation one iota.<br /><br />What puzzles and amuses me the most is your unwillingness to listen to the reports of those people who know, better than anybody else, what it is to be gay – specifically, what puzzles me is your refusal to accept the assertions of literally millions of Americans who, when asked, repeatedly inform members of organizations such as yours that they are gay, and that they have neither the ability nor the desire to change their sexual orientation. Normally, one listens carefully to self-reporting in the context of a study of complex psychological phenomena – it is simply not possible to quantify, file, spindle, staple, fold, and reference states of arousal. Yet with respect to this issue – which continues to generate much controversy – organizations such as yours simply refuse to accept the direct testimony of gay men and lesbians. Are we to conclude that you believe that all members of the gay and lesbian community are involved in a massive conspiracy?<br /><br />You further ignore the prevalence of homosexuality in every society ever studied by anthropologists, as well as the extraordinary consistency of the percentage of the population that is thought to be gay across all such societies. Even in societies in which homosexuality is punishable by the death penalty, gay men and lesbians continue to exist and to meet. Facile attempts to explain this away by comparing gay men and lesbians to criminals disintegrate when viewed more carefully, since the prevalence of criminal behavior is not consistent across societies. If there is any characteristic that can be best compared to homosexuality, it is laterality. Just as approximately 10% of the male population is considered to be gay, about 10% of the population is thought to be left-handed. Vicious and physically violent attempts to stamp out usage of the left hand in writing met with the same dismal failure as the “therapeutic regimens” of organizations such as Exodus International (many members of which report, following their discharge from this organization, that gay sex is rampant behind the backs of the “counselors” and “therapists”).<br /><br />The parasympathetic nervous system, which regulates heartbeat, respiration, pupillary dilation, and other bodily functions not within the conscious control of the vast majority of human beings (Tibetan monks and experts in meditation aside), does not lie. When shown heterosexual pornography, the pupils of a heterosexual male subject dilate. When shown gay pornography, the pupils of a gay male subject dilate. These are hard facts. Regardless of religious teaching, the parasympathetic nervous systems of gay men and lesbians act on desire for members of the same sex. This cannot be explained away.<br /><br />In this country, freedom of religion is cherished, and is enshrined in the First Amendment’s Free Exercise Clause. Courts of law regard any legislation that classifies people on the basis of their religious beliefs with great suspicion; in legal parlance, classifications on the basis of religion are “suspect.” Any classification impacting a fundamental right is considered to be “suspect.” Additionally, a “suspect class” is any group, the members of which are no less capable of contributing to society than the members of any other group, which has suffered a history of persecution where such persecution has been on account of an “immutable” characteristic shared by members of that group; the group in question is also relatively politically powerless, usually due to its small size. Race is the most obvious suspect class. Several state supreme courts consider sexual orientation to be a suspect class (see Footnote 1 to <strong><em>Baehr v. Miike</em></strong>, No. 91-1394-05 (1996), in which the Hawaii Supreme Court declared, authoritatively, that for all purposes other than marriage, classifications based on sexual orientation are suspect; see also <strong><em>Commonwealth v. Wasson</em></strong>, No. 90-SC-558-TG (1992) (striking down the Kentucky sodomy statute on state constitutional grounds)). Even were it to be proven that homosexuality is chosen, this would not justify the imposition of societal sanctions, violence, and rhetorical abuse against gay men and lesbians. Religion is chosen; in fact, Christianity places heavy emphasis on free will and its role in the lives of men and women. Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit summed this up in his dissent in the case of <strong><em>Holmes / Watson v. California Army</em></strong>, No. 96-15855 (1997): </span></div><div align="justify"><br /><span style="font-family:verdana;">"I recognize that we are bound by this court's recent decision that the military may discharge service members who engage in homosexual conduct. See <strong><em>Philips v. Perry</em></strong>, 106 F.3d1420 (9th Cir. 1997). Although I must follow that decision here, I note that it is necessarily rooted in <strong><em>Bowers v. Hardwick</em></strong>, </span><a title="http://www.8bxhefuyt0epdk.readnotify.com/tg/8bxhefuyt0epdlhttp/caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=" href="http://www.8bxhefuyt0epdk.readnotify.com/tg/8bxhefuyt0epdlhttp/caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=478&invol=186" vol="478&invol="><span style="font-family:verdana;">478 U.S. 186 </span></a><span style="font-family:verdana;">(1986), a decision that I have previously described as similar in its bias and prejudice to <strong><em>Plessy v. Ferguson</em></strong>, </span><a title="http://www.8bxhefuyt0epdk.readnotify.com/tg/8bxhefuyt0epdlhttp/caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=" href="http://www.8bxhefuyt0epdk.readnotify.com/tg/8bxhefuyt0epdlhttp/caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&amp;amp;vol=163&invol=537" vol="163&invol="><span style="font-family:verdana;">163 U.S. 537 </span></a><span style="font-family:verdana;">(1896). I remain confident that some day a Supreme Court with a sense of fairness and an adequate vision of the Constitution will repudiate <strong><em>Bowers</em></strong> in the same way that a wise and fair-minded Court once repudiated <strong><em>Plessy</em></strong>. Indeed, I hope that day will not be long in coming. <strong>In my view of the Constitution, there is no more justification for discrimination against individuals because of their sexual orientation, which is most frequently a happenstance of birth, than there is for discrimination against blacks, Hispanics or Asians -- or against Catholics, Jews, or Muslims, who at least have the option to convert."</strong> [emphasis added].<br /><br />Judge Reinhardt expressly articulated this principle despite the fact that he clearly does not believe that sexual orientation is chosen; in his view, discrimination against gay men and lesbians is as pernicious as discrimination against members of any given religion; in fact, the former form of discrimination is even more reprehensible, due to the fact that gay people cannot change their sexual orientation, whereas members of religious minorities can change their religions. While this may offend many religious people, the logic is unassailable. Simply put, what is sauce for the goose is sauce for the gander. (Judge Reinhardt’s wish was realized in 2003, when the US Supreme Court bluntly and expressly overturned <strong><em>Bowers v. Hardwick</em></strong>, openly acknowledging that it had made a very serious mistake in its analysis in Bowers (see <strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558 (2003)))<br /><br />A few years ago, organizations such as yours were convinced that there was one particular struggle in the “culture war” (or, as Associate Justice Antonin Scalia so delicately and evocatively described it in his dissent in <strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996), the “<strong><em>kultuurkampf</em></strong>” (a particularly interesting choice of language and noun from a man whose tool is the written word, given the fact that Scalia was writing about the rights of a group of Americans who have been repeatedly and systematically abused, and who were also targets of the Nazis during the Holocaust) could be won; while Scalia whined about the homosexual “problem” in the State of Colorado, organizations such as yours were confident that gay men and lesbians would <strong><em>never</em></strong> win the right to marry in this country. Wrong again. One state recognizes gay marriage in both name and substance (Massachusetts). Three other states recognize gay marriage in substance, but not name (Vermont, New Jersey, and Connecticut, the last of which implemented civil unions without any prompting from its judiciary). California could well become the fifth state to recognize gay marriage in substance and the second state to recognize gay marriage in name, as soon as this year. The most recent attempt to amend the US Constitution to ban gay marriages did not even attract a simple majority of members of the US Senate, let alone the 67 votes needed to ratify the proposed Amendment.<br /><br />Around the world, the US has become the international laughing stock of more progressive societies. Denmark, Sweden, Norway, Finland, Iceland, and the United Kingdom now recognize civil unions that confer upon gay couples all of the benefits, privileges, and responsibilities of marriage. Belgium, Germany, Canada, The Netherlands, Argentina, Spain, Brazil, and South Africa have gone even further, recognizing gay marriage in both name and substance. The dominos are falling. Has your organization given a moment’s thought to the damage that would be done to this country were thousands of gay industrialists, scientists, professionals in short supply in the US, and other needed sources of high-tech labor to decide not to immigrate to this country due to the fact that their relationships with their spouses would be instantly annulled upon entry to the US?<br /><br />You are entitled to your religious beliefs, and you would be surprised by the vigor with which I would fight for your right to believe in them and to live by them. But when your religious beliefs become the mace of government coercion – when the wall of separation between Church and State is breached, and organizations such as yours – organizations which portray gay men and lesbians as filthy and disease-ridden people who are morally debased and sexually depraved – attempt to force your beliefs down the throats of the rest of us, I will fight back. We will fight back. We will do so because we are not fodder for religious zealotry, and we will not stroll back into the camps.<br /><br />Got it?<br /><br />Good.<br /><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-14852872466607532292007-02-17T23:11:00.000+00:002007-02-19T17:02:54.404+00:00Our Fundamental Rights -- from Bowers v. Hardwick through Lawrence v. Texas......<div align="justify"><span style="font-size:130%;"><strong>Justice at Last:<br /><br />Gay Equality, the Right to Privacy, and Substantive Due Process </strong></span><br /><br /><br /><strong>Introduction: <em>Lawrence v. Texas</em> and <em>Bowers v. Hardwick</em></strong><br /><br />Many gay people are currently celebrating the US Supreme Court decision handed down on June 26, 2003, invalidating all state sodomy statutes as applied to private, non-commercial oral and anal intercourse between both same-sex and opposite-sex couples (<strong><em>Lawrence v. Texas</em></strong>, 539 U.S. 558). Although the facts pertaining to this case are already widely known, a brief recapitulation follows:<br /><br />On September 17, 1998, the Harris County police department, responding to a false report of a weapons disturbance filed by a neighbor, entered the apartment of John Lawrence and found both Lawrence and another man, Tyron Garner, engaging in a sexual act that ran afoul of the state prohibition against “deviate sexual intercourse.” The applicable state law was the Texas Penal Code Ann. Sec. 21.06(a), which provided that “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex,” where such conduct was defined as “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.” The men were dragged off to jail for the night wearing nothing but their underwear, and were charged and convicted by a Justice of the Peace the next day. They exercised their right to a trial <em>de novo</em> in Harris County Criminal Court, where they submitted numerous motions challenging their convictions under the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, as well as under both equal protection and privacy provisions of the Texas state constitution. The trial judge dismissed these motions, and convicted both men, whereupon they appealed their convictions to the Texas Court of Appeals for the Fourteenth District (an influential middle-tier court in the state court hierarchy). After hearing the case en banc, the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S.W.3d 349 (Tex.App. 2001). In a move that reeked of cowardice, the Texas Court of Criminal Appeals (the highest state court dealing with criminal appeals) refused to grant certiorari. Several lower courts in the Texas hierarchy had already found sec. 21.06 to be unconstitutional in other contexts and in other jurisdictions, and it appears clear to this commentator that the Court of Criminal Appeals refused to entertain the appeal for purely political reasons. Justices sitting on this court are elected, and this court probably refused to hear the appeal due to the fact that case law from other intermediate courts of appeals, as well as from the Texas Supreme Court (which deals with civil cases as opposed to criminal cases) would have compelled reversal of the men’s convictions. At this point, the US Supreme Court granted certiorari, and the case was argued on March 26, 2003. The decision was handed down on June 26, 2003, reversing the Texas state courts and vacating the convictions of the appellants.<br /><br />Most people who are even vaguely familiar with this decision are also aware of the fact that this decision involved recognition by the Court of the right to privacy, and that the <strong><em>Lawrence</em></strong> Court explicitly overturned an earlier decision (<strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986)) in which the Court had denied the claim of a right to sexual privacy that had been made by a gay man in Georgia who had been arrested (but ultimately not prosecuted) as “at best, facetious.” There were striking similarities between the facts involved in both cases. Michael Hardwick was a bartender in a gay bar in Atlanta, GA, who had been the target of police harassment. The police had also entered the home of Hardwick in 1982, after having been admitted to the home in error by a houseguest. Hardwick was found engaging in oral sex with another man. Georgia’s sodomy statute was particularly harsh, providing for the mandatory incarceration of any person convicted under the statute for at least one year and at most 20 years. Although the District Attorney dropped the charges against Hardwick, Hardwick brought an action in federal district court challenging the constitutionality of the statute. The district court dismissed Hardwick’s suit under rule 12(b)(6) (failure to state a claim upon which relief can be granted), and Hardwick appealed. The US Court of Appeals for the Eleventh Circuit, in a divided opinion, reinstated Hardwick’s complaint and declared the statute to be unconstitutional. The state appealed, and the US Supreme Court granted certiorari. The Court handed down its decision (<strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186) on March 31, 1986.<br /><br />This decision was widely regarded as one of the coarsest, most insulting attacks upon both the legal rights and the dignity of gay people ever handed down by a court of law in a western nation. Bowers became the target of both immediate and sustained criticism; even some conservative groups accused the Court of meddling in the most private of contexts (the home), and condemned this decision as an attack on the most basic rights imaginable. Chief Justice Burger, in particular, wrote a concurrence in which he abandoned all pretence of ruling on the legal merits of the claim, and delivered himself of a religious tirade invoking Roman law, biblical interpretation, and sweeping claims to the effect that sodomy statutes had “ancient roots.” He piously observed that gay sex was punishable by the death penalty under Roman law. Some of the harshest criticisms were meted out by state supreme courts in the years that followed, as activists in the gay community turned to attacking state sodomy statutes before state supreme courts on state constitutional grounds, with considerable success. The Kentucky Supreme Court, striking down the Kentucky sodomy statute (<strong><em>Commonwealth v. Wasson</em></strong>, 842 S.W.2d 487 (1992)) subjected the US Supreme Court to a blistering tongue-lashing. Commenting on the US Supreme Court’s analysis in <strong><em>Bowers</em></strong>, the Kentucky Supreme Court stated that:<br /><br />“To be treated equally by the law is a broader constitutional value than due process of law as discussed in the <strong><em>Bowers</em></strong> case. We recognize it as such under the Kentucky Constitution, without regard to whether the United States Supreme Court continues to do so in federal constitutional jurisprudence. "Equal Justice Under Law" inscribed above the entrance to the United States Supreme Court, expresses the unique goal to which all humanity aspires. <strong><em>In Kentucky it is more than a mere aspiration. It is part of the "inherent and inalienable" rights protested by our Kentucky Constitution.</em></strong> Our protection against exercise of "arbitrary power over the . . . liberty . . . of freemen" by the General Assembly (Section Two) and our guarantee that all persons are entitled to "equal" treatment (in Section Three) forbid a special act punishing the sexual preference of homosexuals. It matters not that the same act committed by persons of the same sex is more offensive to the majority because Section Two states such "power . . . exists nowhere in a republic, not even in the largest majority."<br /><br />The purpose of the present statute is not to protect the marital relationship against sexual activity outside of marriage, but only to punish one aspect of it while other activities similarly destructive of the marital relationship, if not more so, go unpunished. Sexual preference, and not the act committed, determines criminality, and is being punished. Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals” [emphasis added].<br /><br />Even some federal appeals court judges, who are bound by US Supreme Court precedent, expressed profound reservations relative to the Court’s reasoning and motives in <strong><em>Bowers</em></strong>. Judge Reinhardt, considered to be one of the most liberal judges on the US Court of Appeals for the Ninth Circuit, dissenting in the case of <strong><em>Holmes v. California Army National Guard</em></strong>, 920 F. Supp. 1510 (N. D. Cal. 1996) stated that:<br /><br /><br /><a name="Top">I recognize that we are bound by this court's recent decision that the military may discharge service members who engage in homosexual conduct. See <strong><em>Philips v. Perry</em></strong>, </a>106 F.3d 1420 (9th Cir. 1997). Although I must follow that decision here, I note that it is necessarily rooted in <strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986), a decision that I have previously described as similar in its bias and prejudice to <strong><em>Plessy v. Ferguson</em></strong>, 163 U.S. 537 (1896). I remain confident that someday a Supreme Court with a sense of fairness and an adequate vision of the Constitution will repudiate <strong><em>Bowers</em></strong> in the same way that a wise and fair-minded Court once repudiated <strong><em>Plessy</em></strong>. Indeed, I hope that day will not be long in coming. In my view of the Constitution, there is no more justification for discrimination against individuals because of their sexual orientation, which is most frequently a happenstance of birth, than there is for discrimination against blacks, Hispanics or Asians – or against Catholics, Jews, or Muslims, who at least have the option to convert. (<strong><em>Holmes v. California Army National Guard</em></strong>, 920 F. Supp. 1510)<br /><br /><br /><strong><em>Bowers</em></strong> was regarded by most constitutional scholars to be one of the contemporary US Supreme Court’s most embarrassing and humiliating failures. A. J. Powel, who provided the swing vote for the majority, publicly acknowledged that he had made a mistake and that he regretted his vote following his retirement from the Court. At the time that cast his vote for the majority, he remarked to one of his clerks that he had never known a homosexual. Ironically, that clerk was a closeted gay man. Having observed the manner in which “coming out” transforms human behavior towards gay men and lesbians, the writer cannot help but wonder whether the gay community would have been spared the blight cast upon the entire community by <strong><em>Bowers</em></strong> had this clerk been able to come out to A. J. Powell. It is widely known, for example, that A. J. Kennedy, who authored the majority opinion in both <strong><em>Lawrence</em></strong> and in <strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996) (in which the Court struck down an anti-gay Colorado state constitutional amendment in a move that was widely considered to be a harbinger of the Court’s action in Lawrence), had a gay male couple as next door neighbors, and that A. J. Kennedy and his wife frequently had weekend barbeques with this couple prior to the handing down of <strong><em>Romer</em></strong>.<br /><br /><br /><span style="font-size:130%;"><strong>Fundamental Rights and the Right to Privacy<br /></strong></span><br /><br />Although most Americans believe in a right to privacy, few people are aware of the origins and extent of the right to privacy. Many Americans mistakenly believe that the right to privacy is guaranteed them by the text of the US Constitution; yet nowhere in the text of the US Constitution is there any reference to a right to privacy. Conservatives are fond of bashing the Court for the manner in which the Court derived this right, as well as the manner in which the Court has applied this right to contemporary issues that could not possibly have been foreseen by the Framers of the Constitution. Yet the vast majority of Americans believe that they are entitled to a right to privacy; differences in the beliefs of Americans with respect to the entitlement of this right tend to relate to the extent to which this right is seen as being applicable against the state and US government, not as to whether or not this right actually exists.<br /><br />There are many rights that Americans take for granted, but which are not mentioned anywhere in the text of the US Constitution. In the pantheon of rights recognized by the US Supreme Court, some rights are considered to be “fundamental,” whereas other rights are not considered to be “fundamental.” Those rights that are explicitly declared in the text of the US Constitution are referred to as “enumerated” rights, whereas those rights that are not mentioned anywhere in the text of the Constitution are referred to as “unenumerated” rights. All enumerated rights are fundamental rights; however, not all fundamental rights are enumerated rights. An example of a fundamental, enumerated right is the right to freedom of speech. The First Amendment is very specific in granting to citizens of the United States the right to freedom of speech, and is very clear in stating that Congress may not abridge this right (this essay will also discuss the incorporation of this, and other, rights against the states via the Due Process Clause of the Fourteenth Amendment). The right to freedom of speech is therefore an enumerated, fundamental right. However, through interpretation of the Clause recognizing the right of people peaceably to assemble, and the Clause recognizing the right of people to petition the government for a redress of grievances, the US Supreme Court has also recognized the existence of the right of expressive association and the right of intimate association. These rights are not stated in the text of the Constitution, but are nevertheless recognized by the courts as being fundamental rights which are “peripheral” to the right of people to petition the government for a redress of grievances. It therefore follows that the rights of intimate association and the rights of expressive association are unenumerated, fundamental rights.<br /><br />In <strong><em>Palko v. Connecticut</em></strong>, 302 U.S. 319 (1937), the US Supreme Court held that the US Constitution protected those rights that were “implicit in the concept of ordered liberty,” in addition to those rights which are guaranteed all Americans by the text of the Constitution. Stated differently, the Court held that those rights which were such that “<strong>neither liberty nor Justice would exist if they were sacrificed</strong>” were fundamental in nature, despite the fact that many such rights were not articulated anywhere in the text of the Constitution. The Court attempted to narrow the scope of fundamental rights to those rights that were “<strong>rooted in the traditions and conscience of our people</strong>.” This case is considered by constitutional scholars to be one of the most important cases ever decided by the Court. In addition to creating a flexible standard for the derivation of fundamental constitutional rights, the Court also held that some of these rights were made binding on the states through incorporation under the Fourteenth Amendment’s Due Process Clause.<br /><br /><br /><span style="font-size:130%;"><strong>The Right to Sexual Privacy is First Recognized</strong></span><br /><br /><br />It is arguable that the Court first recognized the existence of a right to sexual privacy in the case of <strong><em>Griswold v. Connecticut</em></strong>, 381 U.S. 479 (1965). At that time, the State of Connecticut had on its books a statute that made it a criminal offence for an individual to use “any drug, medicinal article, or instrument” for the purpose of contraception, or to aid or abet any other person to use such an item for the purpose of contraception. This applied even to married couples. The Court overturned this legislation, but did so on the grounds that the statute in question interfered with a right to privacy that the Court identified as emanating from several guarantees identified in the Bill of Rights. More specifically, the Court maintained that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The Court went on to maintain that various guarantees enumerated in the Bill of Rights created a zone of privacy. The Court reasoned that the “penumbras” of the First, Third, Fourth, Fifth, and Ninth Amendments, through the simultaneous operation of these Amendments, created a zone of privacy that rose to the level of being a fundamental constitutional right. The Court was specific in identifying the manner in which the First Amendment had already been interpreted as granting to all citizens the right of intimate association and the right of expressive association. The Court noted that the Third Amendment, with its prohibition against the quartering of soldiers in any house in times of peace without the consent of the owner, created “another fact of that privacy.” The Court relied upon the plain language of the Fourth Amendment, which explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” as creating another facet of the right to privacy. Turning to the Fifth Amendment, which is best known to Americans for its Self-Incrimination Clause, the Court held that this Clause added further substance to the right to privacy. Finally, the Court noted that the Ninth Amendment’s language and intent was consistent with the recognition of a right to privacy. (The Ninth Amendment, of course, provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Phrased differently, the fact that the Constitution recognizes explicitly the existence of specific rights should not be taken as an indication that the Constitution limits the rights that citizens enjoy only to those rights which are recognized explicitly.)<br /><br />In essence, the Court viewed the simultaneous operation of these rights, all of which are made binding on the states by the Due Process Clause of the Fourteenth Amendment (discussed below), as creating a fundamental right, in the form of a zone of privacy which was such that a prohibition of the purchase or usage of contraceptives by married couples (or the aiding and abetting of the purchase of usage of contraceptives by married couples) ran afoul of this fundamental right. The Court then held that this fundamental right was incorporated against the states through the operation of the Due Process Clause of the Fourteenth Amendment. This was an unusual case in the Court’s substantive due process jurisprudence, in that the substantive due process cases that followed (e.g. <strong><em>Planned Parenthood of Southeastern Pennsylvania v. Casey</em></strong>, 505 U.S. 833 (1992)) relied upon interpretations of the word “liberty,” as this word appears in the Due Process Clause itself, to create zones of personal autonomy that cannot not be encroached on by the states absent, at a minimum, the existence of a legitimate state interest. In his dissent in Lawrence, A. J. Scalia goes so far as to state that “[<strong><em>Griswold</em></strong>] expressly disclaimed any reliance on the doctrine of "substantive due process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause.” This analysis fails to take into consideration the fact that the <strong><em>Griswold</em></strong> Court nevertheless invoked the Due Process Clause to incorporate the fundamental right derived from the penumbras and emanations of the constitutional provisions above against the states (see below for a description of incorporation). There is clearly a degree of overlap between the concept of incorporation and the derivation of fundamental rights. It is also clear that Scalia tried to parse out incorporation under the Due Process Clause from the rights which were so incorporated in an attempt to deny that the <strong><em>Griswold</em></strong> Court invoked substantive due process to arrive at its result. The <strong><em>Griswold</em></strong> Court could have relied upon interpretations of the word “liberty” in the Due Process Clause itself as the wellspring of the right to privacy, but instead derived the right to privacy from the penumbras and emanations of the aforementioned constitutional provisions. Either way, this was a substantive due process decision, Scalia’s reasoning notwithstanding. Any reluctance on the part of the <strong><em>Griswold</em></strong> Court to state, explicitly, that it relied on substantive due process in its analysis must be discounted in the context of the disrepute that substantive due process, as a doctrine, had fallen into following the manner in which this doctrine had been stretched beyond all reasonable bounds in a much-debated earlier case (<strong><em>Lochner v. New York</em></strong>, 198 U.S. 45 (1905)).<br /><br />Conservatives attacked the reasoning of <strong><em>Griswold</em></strong> when this decision was handed down, and continue to do so to this day. While this commentator does not consider the logic underlying <strong><em>Griswold</em></strong> to be unsound, the language chosen by the Court to explicate its reasoning was perhaps unfortunate. Terms such as “penumbras” and “emanations” are terms used to describe phenomena observed at a séance, rather than terms one would expect to use in the reasoning of an analytically sound US Supreme Court opinion. Many legal scholars believe that <strong><em>Griswold</em></strong> is the lynchpin of the right to privacy as that right is currently recognized, and <strong><em>Griswold</em></strong> has been attacked by numerous anti-gay and anti-abortion protestors as these individuals (and groups) attempt to recriminalize abortion, and as they attempt to recriminalize and remedicalize homosexuality. However, the logic employed by the <strong><em>Griswold</em></strong> Court differs significantly from the logic employed in other decision pertaining to the right to privacy, and such attacks may in fact prove fruitless to social conservatives, even were they to succeed in overturning <strong><em>Griswold</em></strong> (which this commentator considers to be a highly unlikely development, notwithstanding the current political climate and notwithstanding recent developments that may alter the ideological slant of the US Supreme Court).<br /><br /><br /><span style="font-size:130%;"><strong>The Right to Sexual Privacy is Expanded</strong></span><br /><br /><br />The Court expanded the reach of the right to privacy derived in <strong><em>Griswold</em></strong> in a decision striking down a Massachusetts statute that made it a felony for any person other than a doctor, or a pharmacist acting in accordance with a doctor’s orders, to distribute contraceptives to unmarried people in <strong><em>Eisenstadt v. Baird</em></strong>, 405 U.S. 438 (1972). Here, the Court employed an equal protection analysis invoking the Equal Protection Clause of Section I of the Fourteenth Amendment, extending the right to privacy identified in <strong><em>Griswold</em></strong>. The Court made it clear that the right to privacy inheres both in the marital relationship <em>and</em> in the individual. In asserting that the right to privacy inhered in the individual, the Court relied upon precedent involving the right of the people to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (see <strong><em>Stanley v. Georgia</em></strong>, 394 U.S. 557 (1969)<a name="fn10_1stcall"></a>; <em><strong>Skinner v. Oklahoma</strong></em>, 316 U.S. 535 (1942); <strong><em>Jacobson v. Massachusetts</em></strong>, 197 U.S. 11, 29 (1905)).<br /><br />The gravamen of any equal protection challenge usually lies in the assertion that two groups of individuals who are similarly situated are treated differently, with resultant adverse impact to the members of one of the groups in question. In this case, the groups in question consisted of unmarried people and married people. Given the nature of the right to privacy – the fact that it inheres in the individual, not just in the marital status of the individual – it is plain to see how the Court reached the result and overturned the statute in question. The Court identified the right to privacy in <strong><em>Griswold</em></strong>, and used the Equal Protection Clause to extend the right to privacy to unmarried people in <strong><em>Baird</em></strong>.<br /><br />It should be important to emphasize that both <strong><em>Griswold</em></strong> and <strong><em>Eisenstadt</em></strong> were decided by invoking the doctrine of substantive due process (described below). <strong><em>Griswold</em></strong> was decided in terms of the zone of privacy created by the simultaneous operation of several of the Amendments located in the Bill of Rights, which were then made binding upon the states by operation of the Due Process Clause. <strong><em>Eisenstadt</em></strong> was decided by extending the right to privacy identified in <strong><em>Griswold</em></strong> to unmarried couples by invoking the Equal Protection Clause of the Fourteenth Amendment. The <strong><em>Eisenstadt</em></strong> Court also invoked precedent involving the right of the people to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child (see the above citations), but this analysis was tangential to the finding of a right to privacy as identified in <strong><em>Griswold</em></strong>. Chief Justice Burger, in his dissent, bemoaned the Court’s analysis in <strong><em>Eisenstadt</em></strong> as “regrettably [harkening] back to the heyday of substantive due process.” In fact, both <strong><em>Griswold</em></strong> and <strong><em>Eisenstadt</em></strong> invoked the doctrine of substantive due process, notwithstanding Chief Justice Burger’s complaint.<br /><br />At this point, the concept of substantive due process requires description and elucidation.<br /><br />It should be noted at the outset that the term “substantive due process” is quite literally an oxymoron, similar to the term “yellow red car” or the term “square triangle.” This concept cannot be described without explaining a closely-related concept known as incorporation.<br /><br />Although the US Constitution sets forth a description of the composition and functions of the three branches of government, most constitutional scholars maintain that the US Constitution is primarily a procedural document. The guarantees of the first eight Amendments apply to the behavior of Congress and set limits to what Congress may and may not do, as well as describing the rights of accused individuals against the US government. Nowhere in the Bill of Rights, however, is it stated or implied that these guarantees are also applicable against the states (and political subdivisions of the states, such as school districts, towns, and cities). Yet today, we recognize that almost all of the guarantees against the US government that are explicit in, or that have been derived from interpretation of, the first eight Amendments to the US Constitution are also binding upon the states.<br /><br />After the Civil War, three Amendments which are now referred to as the Civil War and Reconstruction Amendments were ratified. These were the Thirteenth Amendment, the Fourteenth Amendment, and the Fifteenth Amendment.<br /><br />The Thirteenth Amendment expressly prohibits slavery and involuntary servitude, except as punishment for a crime. The Fourteenth Amendment is considerably more complex, and will be discussed below. The Fifteenth Amendment expressly prohibits denial of the vote to persons on the basis of race or prior condition of servitude (slavery). These Amendments were passed to ensure that freed slaves and African-Americans would receive fair treatment at the hands of the states, particularly at the hands of those states that had formed the Confederacy during the Civil War.<br /><br /><br /><strong><span style="font-size:130%;">The Fourteenth Amendment: Overview<br /></span></strong><br /><br />The Fourteenth Amendment has five sections. Section Five permits Congress to enforce the other sections through the passage of appropriate legislation. In the context of this analysis and the right to privacy, Section One is the most significant. Section One of the Fourteenth Amendment provides that “<strong>All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws</strong>.”<br /><br />The first sentence of Section One is self-explanatory and is of little relevance to the contents of this essay. However, the second sentence articulates three distinct Clauses, which are known as the <strong>Privileges or Immunities Clause</strong>, the <strong>Due Process Clause</strong>, and the <strong>Equal Protection Clause</strong>. A massive body of case law has been built through analysis and implication of the Due Process and Equal Protection Clauses.<br /><br /><br /><strong>The Fourteenth Amendment: Privileges or Immunities Clause</strong><br /><br /><br />According to most constitutional scholars, the purpose of the Privileges or Immunities Clause was to make binding upon the states the first eight Amendments to the US Constitution, together with Section 9 of Article I of the US Constitution. Most constitutional scholars blame the fact that this Clause was virtually written out of the Constitution on Justice Miller, for his majority opinion in the <strong><em>Slaughter-House Cases</em></strong>, 83 U.S. 36 (1873). Robert C. Palmer, however, writing for the University of Illinois Law Review, takes a distinctly different view as pertains to this matter. Palmer describes and defends the reasoning of Justice Miller, and views Justice Miller’s analysis in the <strong><em>Slaughter-House Cases</em></strong> as reflective of a moderate, middle course, and contextually correct interpretation of this Clause. Palmer, however, contends that Justice Miller, writing for the majority, correctly construed the Privileges or Immunities Clause. More specifically, Palmer contends that Justice Miller interpreted this Clause as making binding upon the states the first eight Amendments and some of the provisions of Section 9 of Article I of the US Constitution. Palmer argues that true blame for the truncation of the reach of this Clause lay firmly at the door of Chief Justice Waite, who wrote for the majority in the case of <strong><em>United States v. Cruikshank</em></strong>, 92 U.S. 542 (1875). According to Palmer, C. J. Waite adopted an approach to judicial federalism premised on the notion that there was absolutely no overlap between state and federal powers. Palmer argues that Waite “refrained completely from quoting the fourteenth amendment” and that “[h]e did not base his argument on the language of the privileges or immunities clause. He made no attempt to explain the privileges or immunities clause or the comity clause. Waite quoted the fourteenth amendment only when considering equal protection and due process rights.” In short, Palmer argues that the careful analysis of Justice Miller in the <strong><em>Slaughter-House Cases</em></strong> was ignored by C. J. Wait in <strong><em>Cruikshank</em></strong>. Constitutional scholars agree that the reach and significance of the Privileges or Immunities Clause was severely truncated, forcing subsequent Courts to rely more heavily on the Due Process Clause to secure individual rights against the states. Since the Privileges or Immunities Clause was intended to describe and to define the rights of people as opposed to corporations, the manner in which this Clause was written out of the Constitution in <strong><em>Cruikshank</em></strong> was most unfortunate, in that it resulted in a situation in which individual rights were seen as being the result of government grants as opposed to being inherent in the individual (see <strong><em>Griswold</em></strong>, supra). This was a formulation that the American people would have most vehemently rejected; for a people that had just fought the Revolutionary War, personal rights inhered in individuals and were thus decisively different from corporate rights. The Due Process Clause was a more suitable vehicle for the protection of corporate rights than it was for the protection of personal rights, but as a result of <strong><em>Cruikshank</em></strong>, the Due Process Clause became the vehicle whereby the Court ultimately incorporated most of the rights guaranteed persons against the US government by the first eight Amendments against the states.<br /><br />It should be mentioned that the US Supreme Court recently breathed new life into the Privileges or Immunities Clause, invoking this Clause for the first time since its truncation as described above, in the case of <strong><em>Saenz v. Roe</em></strong>, 526 U.S. 489 (1999); this case dealt with the rights of welfare recipients moving to states which have higher welfare benefits than the states from which the recipients moved. Some scholars have speculated that the Privileges or Immunities Clause will eventually replace the Due Process Clause as the vehicle for granting to individuals additional rights against the states, once the elasticity of the Due Process Clause is exhausted. With its emphasis on individual rights, this Clause would certainly be more congruent with the intent of the authors of the Fourteenth Amendment.<br /><br /><br /><strong>The Fourteenth Amendment: Due Process of Law</strong><br /><br /><br />There are actually two Due Process Clauses located in the text of the Amendments to the US Constitution. The Fifth Amendment includes a Due Process Clause, stating that no person shall “be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendments Due Process Clause has already been quoted (supra). For the purpose of analysis, the Court has interpreted these Clauses almost identically; under the US Constitution, there is virtually no difference between protections from federal or state action under these Clauses. However, many state constitutions contain their own due process clauses, many of which are more generous by their terms, or as construed by state supreme courts, in extending protections to individuals, than are the Due Process Clauses of the Fifth and Fourteenth Amendments, both by their terms, and as construed by the US Supreme Court.<br /><br />(Although the first eight Amendments to the US Constitution do not include an equal protection clause or any textual reference to equal protection, the US Supreme Court has construed the Fifth Amendment’s Due Process Clause as subsuming an equal protection component. In <strong><em>Bolling v. Sharpe</em></strong>, 347 U.S. 497 (1954), the Warren Court held that it was inconceivable for Congress to impose an equal protection guarantee against the states unless the US government was also subject to the same guarantee. This issue, however, falls outside the scope of this essay.)<br /><br />The Due Process Clauses are ultimately derived, historically, from a similar clause in the Declaration of Magna Carta. This document, agreed to by the King of England in 1215, states that “<strong>No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his peers, or by the Law of the Land</strong>.” The core meaning of this clause is that no person may be denied his life, liberty, or property should the law of the land forbids such a deprivation. However, the US Supreme Court has interpreted the Due Process Clauses to have substantive components that actually prohibit legislatures from passing certain laws in the first place. Extremely conservative jurists such as Antonin Scalia have declared this interpretation to be unsound and to constitute a “judicial usurpation” of the powers of the US government and of state legislatures. Nevertheless, the distinction between procedural due process and substantive due process exists and is recognized by the contemporary US Supreme Court. Furthermore, even Scalia and jurists who share this view acknowledge that substantive due process is here to stay. The debate is not over whether or not to employ substantive due process; it is over the extent to which substantive due process should guide the Court and the extent to which the Court should rely on this doctrine in deciding cases involving the rights of individuals against the state.<br /><br /><strong>· Procedural Due Process</strong><br /><br />Procedural due process is premised on the concept of procedural fairness. At a bare minimum, procedural due process requires that the individual must be apprised of the charges against him or her, and that the individual be granted a hearing at which he or she can dispute the charges. This hearing must afford the individual a real chance to rebut the charges against him or her, and cannot be a mere sham. Innocent people are sometimes wrongly convicted, and prohibitions against cruel and unusual punishments are also implicated in fair procedures. In addition to being granted a fair and impartial hearing, the individual may not be arbitrarily deprived of life, liberty, or property without a showing by the government that a statute, ordinance, or regulation has been violated by the individual. In other words, an individual whose behavior comports with the strictures imposed on his or her movements, actions, or activities by specific statutes, ordinances, or regulations, cannot be deprived of life, liberty, or property by the state.<br /><br />However, due process does not end here. A law may be clear, unambiguous, and carry the presumption of innocence, yet nevertheless be abhorrent to the majority of people. Consider, for example, a law authorizing the execution of people who commit adultery or who are openly gay. This is exactly the type of law that the sect known as “Christian Reconstructionism,” founded by the late Rousas J. Rushdoony, wishes to see passed in contemporary America. Christian Reconstructionists believe that rebellious children and people who advocate or practice other religious beliefs should be stoned to death; furthermore, Christian Reconstructionists firmly believe that blasphemy, adultery and homosexual behavior should be criminalized, and those found guilty should also be stoned to death. A literal reading of the text of the Due Process Clauses, absent an understanding that these Clauses exist for the purpose of protecting fundamental rights, would permit the existence of such a barbaric system of justice in the United States.<br /><br />In the context of contemporary constitutional law, it is clear that, for the Due Process Clauses to mean anything, they must embody more than the mere “how” of the law (the manner in which the law is applied). They must also embody the “why” of the law (which kind of laws may or may not be passed in the first place).<br /><br /><strong>· Incorporation: The Bill of Rights and the Due Process Clause</strong><br /><br />The Due Process Clause of the Fourteenth Amendment became the vehicle whereby the majority of the guarantees against the US government in the Bill of Rights were also made binding on the states. In <strong><em>Gitlow v. New York</em></strong>, 268 U.S. 652 (1925), the US Supreme Court explicitly assumed that “freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” This was a First Amendment case, and the Court incorporated the guarantees of these First Amendment rights against the states (although the defendant, who distributed pamphlets advocating “criminal anarchy,” lost the appeal). In this case, the conviction of Benjamin Gitlow on charges of “criminal anarchy” was sustained, where the definition of “criminal anarchy” was, in part, “the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony.”<br /><br />Prior to the passage of the Fourteenth Amendment, the Supreme Court was adamant in refusing to extend the reach of the guarantees of the Bill of Rights against the states. For example, in <strong><em>Barron v. Baltimore</em></strong>, 32 U.S. 243 (1833), the Court bluntly declared that “The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.” In <strong><em>Pervear v. Massachusetts</em></strong>, 72 U.S. 475 (1833), the Court held that “The provision in the 8th article of the amendments to the Constitution, that "excessive fines" shall not be "imposed, nor cruel and unusual punishments inflicted" applies to national not to state legislation,” upholding the sentence of the appellant for selling intoxicating liquors without the requisite state permission.<br /><br />Following the passage of the Fourteenth Amendment and the truncation of the reach of the Privileges or Immunities Clause, incorporation under the Due Process Clause was a slow process. To some extent, it went hand in hand with the delimitation of certain rights as fundamental. In <strong><em>Palko</em></strong> (supra), the Court incorporated fundamental rights against the states, but did not incorporate all of the rights guaranteed individuals by the text of the Bill of Rights. The drive to incorporate the rights guaranteed individuals by the Bill of Rights against the states picked up speed during the 1940s and the 1950s. Justice Hugo Black believed that incorporation should have been “total.” Black believed that all of the rights guaranteed individuals by the text of the Bill of Rights should have been incorporated against the states, but he did not believe that other judicially derived fundamental rights should have been incorporated against the states. Black would probably not have approved of the manner in which the right to privacy, which is a judicially derived fundamental right, has been incorporated against the states.<br /><br />Justice Felix Frankfurter adopted a very different view towards incorporation. He believed that the process of incorporation should have been incremental, and that only those sections of the Bill of Rights whose abridgement would “shock the conscience” of the federal courts should have been incorporated against the states (see <strong><em>Rochin v. California</em></strong>, 342 U.S. 165 (1952)).<br /><br /><strong>· Substantive Due Process</strong><br /><br />Substantive due process is a constitutional doctrine that holds that the Due Process Clauses of the Fifth and Fourteenth Amendments regulate not only the procedures that the government must follow when depriving a citizen who has broken a law of life, liberty, or property, but also the substance of legislation that can be enacted by legislative bodies. This doctrine is controversial, and many right wing jurists reject its validity entirely (A. J. Antonin Scalia and A. J. Clarence Thomas represent examples of this mindset). Nevertheless, substantive due process is the bedrock principle upon which rest many of the rights that most Americans take for granted, and few people doubt that it is here to stay. The Court, which is the final interpreter of the law and of the US Constitution, has read into the Fifth and Fourteenth Amendments what could be characterized as “due substance” clauses. The rights in question are made binding on the states through incorporation under the Due Process Clause of the Fourteenth Amendment. The Court is empowered to interpret the word “liberty” as it appears in the Due Process Clauses. Through interpretation of the word “liberty,” the Court has held that there is indeed substance to be protected by the Due Process Clauses. The boundaries between procedural due process and substantive due process are not always clear, and the contours of this substance have been at issue in heated debates between “strict constructionists” and those who favor a more expansive interpretation of the Constitution. The Rehnquist court elucidated its position as pertains to substantive due process by writing the following, excerpted from <strong><em>Planned Parenthood of Southeastern Pennsylvania v. Casey</em></strong>, 505 U.S. 833 (1992):<br /><br />[The Fourteenth Amendment’s Due Process Clause] declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the case before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, at least since <strong><em>Mugler v. Kansas</em></strong>, 123 U.S. 623, 660-661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." <strong><em>Daniels v. Williams</em></strong>, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed,<br /><br />[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. <strong><em>Whitney v. California</em></strong>, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring).<br /><br />[T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." <strong><em>Poe v. Ullman</em></strong>, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting <strong><em>Hurtado v. California</em></strong>, 110 U.S. 516, 532 (1884)).<br /><br />The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., <strong><em>Duncan v. Louisiana</em></strong>, 391 U.S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See <strong><em>Adamson v. California</em></strong>, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.<br /><br /><br />.It should be noted that <strong><em>Griswold</em></strong> (supra) (the case dealing with the right of married people to avail themselves of contraception) was decided by invoking substantive due process, notwithstanding the crabbed interpretation of this concept explicated by A. J. Scalia in <strong><em>Lawrence</em></strong> (supra). The <strong><em>Griswold</em></strong> Court held that the right to privacy inhered in both the marital relationship and the individual, and the <strong><em>Griswold</em></strong> Court held that this zone of privacy was created, or generated, by the simultaneous operation of the “penumbras” and “emanations” arising from the interaction of several Constitutional Amendments (see above). This analysis differed from the analysis invoked by the Court in <strong>Roe v. Wade</strong>, 410 U.S. 113 (1973). In <strong><em>Roe</em></strong> and subsequent cases, the Court focused on a direct textual reference to “liberty” in the Due Process Clause of the Fourteenth Amendment to hold that the substantive component of the Due Process Clause prohibited the states from interfering with the right of women to choose to terminate their pregnancies during the first trimester; this right was considered by the Court to be “fundamental,” and women were able, following <strong><em>Roe</em></strong>, to invoke this right at any time during the first trimester, virtually without restraint. This commentator believes that the result arrived at in <strong><em>Roe</em></strong> was correct, but that the Court was forced, by the nature of the right at issue and by then-prevailing medical standards pertaining to viability, to write an analytically questionable opinion. Even ardent pro-choice attorneys have acknowledged that <strong><em>Roe</em></strong> was intellectually sloppy and poorly reasoned. Following her Senate confirmation hearings, A. J. Ruth Bader Ginsburg opined that <strong><em>Roe </em></strong>could have been decided with greater intellectual coherence and clarity by invoking an equal protection analysis as opposed to the substantive due process analysis that ultimately prevailed. Critics of Roe’s reasoning include Judge Richard Posner, who sits on the US Court of Appeals for the Seventh Circuit. (This scholarly and conservative Court of Appeals broke new legal ground in 1997 by holding that gay schoolboy Jamie Nabozny could bring an equal protection challenge against the Ashland, Wisconsin school district for the school district’s intentional and obtuse failure to protect Nabozny from violent physical abuses that he suffered at the hands of some of his heterosexual classmates.) Posner has referred to <strong><em>Roe</em></strong> as “an embarrassing performance” (Posner, <strong>Judicial Opinion Writing</strong>, 62 U.Chi.L.Rev, 1434 (1995)). Nevertheless, the Rehnquist Court affirmed <strong><em>Roe</em></strong> twice, employing substantive due process on both occasions (see <strong><em>Webster v. Reproductive Health Services</em></strong>, 492 U.S. 490 (1989) and <strong><em>Planned Parenthood of Southeastern Pennsylvania v. Casey</em></strong>, 505 U.S. 833 (1992)). It is black-letter law that “liberty” means more than mere freedom from physical restraint, and the Court has interpreted this word broadly, holding that liberty interests exist in a wide variety of social and personal contexts, and that some liberty interests are “fundamental” and cannot be curtailed by the states absent the most compelling of reasons, regardless of whether or not the states abide by principles of procedural fairness (see above). In <strong><em>Casey</em></strong>, the Court defined liberty in terms of its numerous attributes, in what has become an oft-cited passage:<br /><br />“At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”<br /><br />The irony of this statement, which followed the Court’s devastating ruling in <strong><em>Bowers v. Hardwick</em></strong>, 478 U.S. 186 (1986), is not lost on this commentator. It was also not lost on the <strong><em>Lawrence</em></strong> Court, which took note of this statement and of the inconsistency created in the law both by this statement and by subsequent legal developments (e.g. <strong><em>Romer v. Evans</em></strong>, 517 U.S. 620 (1996), in which the Court affirmed the overturning of Colorado’s infamous anti-gay “Amendment 2” by the Colorado Supreme Court).<br /><br />In 1967, the US Supreme Court handed down an opinion striking down “miscegenation” statutes (which prohibited white people from marrying non-white people). The bulk of this decision (<strong><em>Loving v. Virginia</em></strong>, 388 U.S. 1 (1967)) rested on interpretation of the Equal Protection Clause; however, the Court also noted that the Virginia “miscegenation” statute “also deprive[s] the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment.”<br /><br />In <strong><em>Meyer v. Nebraska</em></strong>, 262 U.S. 390 (1923), the Court held that a Nebraska statute that made it illegal to teach children in any language other than English until the child had passed the eighth grade violated the Due Process Clause of the Fourteenth Amendment.<br /><br /><br /><strong>Correcting a Misfire: The Court Overrules Bowers and Apologizes</strong><br /><br /><br />The US Supreme Court very seldom directly overrules itself, and on the few occasions that it does so, the Court takes great pains to explain why it has chosen to do so. This is exactly what A. J. Anthony Kennedy, writing for the <strong><em>Lawrence</em></strong> majority, proceeded to do. He criticized C. J. Burger for Burger’s sweeping statement, in <strong><em>Bowers</em></strong>, to the effect that prohibitions against gay sex had “ancient roots,” and, relying heavily on an extremely thorough briefing of the history of laws pertaining to sexual conduct in the United States, noted that American Colonial laws prohibiting gay sex were consistent with more general laws prohibiting non-procreative sex of any form, and that gay people were not often prosecuted for having sex in the privacy of their homes, even after laws were passed that expressly provided for such prosecutions. (This commentator does not disagree with the cold, hard fact that gay bars were frequently raided by the police in the 1950s and 1960s; in the state of New York, it remained illegal for a bar to serve known homosexuals until 1966. Police harassment took the form of arresting patrons on trumped-up charges of “indecency” or “lewd conduct” even after the change to liquor serving policy that occurred in 1966, culminating in the Stonewall riots of 1969; this bar operated without a liquor license and had mob ties.)<br /><br />Cases in which the Court overrules itself are sometimes justified by the overruling Court on the grounds that societal consensus has changed with respect to the law in question. For example, prohibitions against cruel and unusual punishment (prohibited by the Eighth Amendment) have resulted in usage of the electric chair being discontinued in states such as Georgia and Florida. The Court has declared that the Eighth Amendment’s prohibition of cruel and unusual punishment “draws its meaning from evolving standards of decency that mark the progress of a maturing society” (<strong><em>Trop v. Dulles</em></strong>, 356 U.S. 86 (1958)). What is important to note for the purposes of this essay is the fact that changes in societal consensus are often reasons for the Court to overrule itself, either directly or through a process of neglect combined with the opening of a new line of constitutional analysis. However, in <strong><em>Lawrence</em></strong>, the Court not only overruled Bowers explicitly and pointedly, but went to considerable pains to state that <strong><em>Bowers </em></strong>had been wrongly decided in the first case. Consider the following statements from the <strong><em>Lawrence</em></strong> majority:<br /><br />“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration, in and of itself, is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of <strong><em>Bowers</em></strong> has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.<br /><br />“<strong>Bowers</strong> was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. <strong><em>Bowers v. Hardwick</em></strong> should be and now is overruled…………<br /><br />The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." <strong><em>Casey</em></strong>, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”<br /><br />These statements are remarkable in that they constitute what can only be interpreted as an apology to gay Americans for a mean-spirited and ugly prior decision (<strong><em>Bowers</em></strong>) that dehumanized gay Americans and that mocked the claim that gay Americans enjoy any right of sexual privacy. As this commentator has observed in an earlier essay (at <a href="http://www.doaskdotell.com/readers/chandler.htm">www.doaskdotell.com/readers/chandler.htm</a>), the tone of a US Supreme Court decision can be almost as important as the result. <strong><em>Bowers</em></strong> was written in tones of sneering contempt; <strong><em>Lawrence</em></strong>, on the other hand, was written in tones stressing the dignity of gay men and lesbians, and emphasizing the magnitude of the Court’s error in <strong><em>Bowers</em></strong>.<br /><br />The decision was written by A. J. Anthony Kennedy, and was joined by A. J. Stephen Breyer, A. J. Ruth Bader Ginsburg, A. J. David Souter, and A. J. John Paul Stevens. A. J. Sandra Day O’Connor wrote a separate concurrence, agreeing with the result but adopting an equal protection analysis. O’Connor agreed that the Texas statute was unconstitutional, but refused to join her five colleagues in finding that the right to privacy under the Due Process Clause extended to the right of gay people to have sex in private. Instead, she advanced an equal protection argument, positing that the best method of rectifying the injustice imposed on both gay and straight Americans by the existence of sodomy statutes would be to enforce them vigorously against all citizens; this would, of course, result in public outrage and rapid repeal of such legislation. Although she did not accept the substantive due process analysis adopted by the majority of the Court, her vote provided a sixth voice on the Court finding that prohibitions against consensual gay (and heterosexual) sodomy violate the US Constitution.<br /><br /><br /><strong><span style="font-size:130%;">Whining from the Right Wing</span></strong><br /><br /><br />A. J. Antonin Scalia dissented and was joined by both A. J. Clarence Thomas and C. J. William Rehnquist. Scalia’s dissent was lengthy, impassioned, and longer than the majority opinion. In the dissent, Scalia angrily denounced the Court’s stare decisis jurisprudence for upholding <strong><em>Roe</em></strong> while overturning <strong><em>Bowers</em></strong>. He pointed out that <strong><em>Roe</em></strong> had been affirmed <strong><em>twice</em></strong>, despite the fact that the Court had been under fire for handing down <strong><em>Roe</em></strong> in the first place, and angrily contrasted the Court’s behavior in upholding <strong><em>Roe</em></strong> with the Court’s behavior in overturning <strong><em>Bowers</em></strong>, furiously denouncing the Court for what he considered to be selective, result-oriented application of the doctrine of stare decisis. A more searching examination of these cases and their societal and legal impact suggests to this commentator that this comparison is inapposite and without merit. When <strong><em>Roe</em></strong> was handed down, many states were in the process of repealing their abortion statutes. By the time <strong><em>Lawrence</em></strong> was decided, many state supreme courts had handed down decisions predicated on state constitutional grounds, invalidating their constitutionality and rendering them unenforceable; but only one state (Nevada) repealed its sodomy statute in the 17 year period between the handing down of <strong><em>Bowers</em></strong> and the handing down of <strong><em>Lawrence</em></strong>. The impact of <strong><em>Roe</em></strong> was to polarize the nation in such a manner as to cause a deep divide in American society. While <strong><em>Bowers</em></strong> certainly created an uproar, the impact of <strong><em>Bowers</em></strong> was largely (but certainly not entirely) limited to the lives of gay and lesbian Americans; furthermore, <strong><em>Bowers</em></strong> resulted in immediate, sustained, and vigorous criticism of the Court from many different quarters on the political spectrum (including criticism from such conservative organizations as the Cato Institute). It was disingenuous of Scalia to wrench these cases from their temporal and factual contexts; yet Scalia has never been consistent in his jurisprudence, his claims to the contrary notwithstanding. The above is further evidence of Scalia’s lack of intellectual coherence.<br /><br />A careful reading of Scalia’s dissents in both <strong><em>Romer</em></strong> and <strong><em>Lawrence</em></strong> soon makes it clear that he continues to view gay people not as a group defined by sexual orientation or by an innate attraction to members of the same sex; instead, he views gay people as heterosexuals who choose to “behave badly” by accepting the “homosexual lifestyle.” This crude and cruel analysis permits Scalia to compare gay people to adulterers, child molesters, murderers, and practitioners of incest and bestiality (see both dissents, <em>ibid</em>.). He is apparently joined in this view of gay people by A. J. Clarence Thomas and by the late C. J. William Rehnquist. His dissent in <strong><em>Lawrence</em></strong> consisted of page after page berating the majority for what he perceived to be errors in the majority’s analysis, particularly as pertains to <em>stare decisis</em>. He also assailed the majority for adopting rational basis review “with bite,” claiming that the Court had “laid waste the foundations of [its] rational basis jurisprudence” and that it had applied “an unheard-of form of rational basis review.” His hysterical statement to the effect that the overturning of <strong><em>Bowers</em></strong> created “a massive disruption of the current social order” reveals yet again the manner in which Scalia disguises serious analytical incompetence with rhetorical flourishes.<br /><br />The Court “laid waste” to absolutely nothing. While it is certainly permissible to question the manner in which the Court has blurred the tripartite analytical structure with which it approaches challenges to the constitutionality of legislation under the Due Process and Equal Protection Clauses, the Court’s behavior is not without precedent. In the past, rational basis review almost always resulted in victory for the state, and the level of review applied in any particular case was virtually outcome-determinative (see <strong><em>Heller v. Doe</em></strong>, 509 U.S. 312 (1993)). However, when it is clear to the Court that the legislation in question is intended to give effect to a bare desire to harm a politically unpopular group, the traditional rational basis standard of review becomes more searching. As A. J. O’Connor remarked in her concurrence in Lawrence:<br /><br />"When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.<br /><br />We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In <strong><em>Department of Agriculture v. Moreno</em></strong>, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "'discriminate against hippies.'" 413 U.S. at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id. at 535-538. In <strong><em>Eisenstadt v. Baird</em></strong>, 405 U.S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in <strong><em>Cleburne v. Cleburne Living Center</em></strong>, <em>supra</em>, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences -- like fraternity houses and apartment buildings -- did not have to obtain such a permit. And in <strong><em>Romer v. Evans</em></strong>, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group" -- specifically, homosexuals. 517 U.S. at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post at ___ (opinion of SCALIA, J.). "<br /><br />In short, the form of rational basis review applied by the majority in <strong><em>Lawrence</em></strong> is not “unheard-of.” It is a form of rational basis review that has been applied several times in the past when the Court has determined that the legislation in question was intended to harm politically unpopular groups. </div><div align="justify"><br />It is important to stress the fact that, although <strong><em>Lawrence</em></strong> directly overruled <strong><em>Bowers</em></strong>, <strong><em>Lawrence</em></strong> does not make all state sodomy statutes facially unconstitutional. A statute is only deemed to be facially unconstitutional if there exist no circumstances whatsoever under which application of the statute could ever be found to be constitutional (<strong><em>United States v. Salerno</em></strong>, 481 U.S. 739 (1987)). In <strong><em>Lawrence</em></strong>, the Court held that state sodomy statutes are unconstitutional as applied to consenting adults acting in private. This still renders it possible for the police to engage in entrapment of gay men and lesbians by inducing them to agree to have sex in such settings as public parks. While heterosexual men and women are frequently ignored (or even treated with a nod and a wink) by police if observed having sex in parked cars out of sight of the general public, gay men remain the target of sting operations (often named “bag a fag” operations) to entice them into having sex in such “public” settings. Only the removal of sodomy statutes from the books of those states that still carry them will guarantee enduring freedom from such discretionary executive abuses.<br /><br /><strong><span style="font-size:130%;">Life after Lawrence: Vigilance and Care</span></strong><br /><br />Changes in the composition of the Court as the result of the confirmation of Chief Justice John Roberts and the confirmation of Samuel Alito could have a profound impact on the direction of the Court for several decades. At the time of writing, it is difficult to determine the nature of this impact. It is known that John Roberts, while working as a partner at Hogan & Hartson, provided assistance to Jean Dubofsky, the former Colorado Supreme Court Justice who argued before the US Supreme Court for the plaintiffs in <strong><em>Romer v. Evans</em></strong> (which is to say that he provided assistance to the litigator who argued that Colorado’s Amendment 2 was unconstitutional). However, it is impossible, on the current record, to determine whether he believed in what he was doing.<br /><br />This commentator considers it highly unlikely that the US Supreme Court would reverse <strong><em>Lawrence v. Texas</em></strong> even should a vehicle arrive in the form of a legitimate Article III case or controversy. <strong><em>Bowers</em></strong> was decided 17 years before <strong><em>Lawrence</em></strong>, and a sudden reinstatement of <strong><em>Bowers</em></strong> would require the invalidation of preceding case law turning on substantive due process, undermining <strong><em>Loving</em></strong>, <strong><em>Meyer</em></strong>, <strong><em>Roe</em></strong>, and numerous other cases. The result would necessarily, in the opinion of this commentator, be a constitutional shambles. The US Supreme Court derives its prestige from the good will and esteem of the American people. It does not have an army that can enforce its rulings. That good will is dependent on its consistency and its reliability. The ringing tones in which the Court affirmed the dignity of gay Americans, together with the tremendous strides that the gay community has made over the course of the past two decades, would be extremely difficult for the Court to reconcile with another sneering attack. Furthermore, most Americans would be appalled were they to be told that the states could ban contraception, interracial marriages, and teaching foreign languages to children; the resulting backlash would constitute a serious setback for the hard right, notwithstanding the manner in which the Bush Administration has employed the federal government as another arm of the Republican party. In short, the Court took a terrible beating after it handed down <strong><em>Bowers</em></strong>. It would not behove the Court to repeat the slander immediately following such a resounding self-excoriation.<br /><br />---<br />©Copyright 2005 by Philip Chandler. All rights reserved subject to fair use. Reprinted here with permission as a courtesy to readers.<br />Here is the author’s new blog (2/2007): <a href="http://gayequalityandthelaw.blogspot.com/index.html">http://gayequalityandthelaw.blogspot.com/index.html</a><br />Return to <a href="http://www.doaskdotell.com/readers/">readers page</a><br />Return to <a href="http://www.doaskdotell.com/">home page</a></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-68509155509387922702007-02-17T17:02:00.001+00:002009-03-06T15:22:56.104+00:00Bowers v. Hardwick -- the US Supreme Court Crushes the Gay Community......<div align="justify"><span style="font-family:verdana;">On June 30, 1986, the US Supreme Court handed down what was regarded by most constitutional scholars, including a remarkably large number of conservative organizations, one of the coarsest attacks on the rights of gay men and lesbians ever forced on this community by any government entity. This attack took the form of a decision (<em><strong>Bowers v. Hardwick</strong></em>, 478 U.S. 186 (1986)) handed down by a deeply divided Court in response to a suit filed by a gay man named Michael Hardwick.<br /><br />In August 1982, an overnight guest permitted the police to enter the home of Michael Hardwick; the police entered Hardwick's bedroom and found him engaging in oral sex with another adult male. This act ran afoul of Georgia's sodomy statute, which forbade any couple (same-sex or opposite-sex) from performing oral or anal intercourse, even with the full and mutual consent of both members, in the privacy of a person's bedroom. The Georgia sodomy statute was particularly harsh in terms of punishment; violation of this statute was punishable by a mandatory minimum period of a year in prison, and a maximum period of 20 years in prison. At the time of Hardwick's arrest, about 25 states had sodomy statutes on their books, although very few states ever enforced these statutes. The Georgia District Attorney declined to present the matter to the grand jury for lack of evidence (perhaps realizing that, were Hardwick to be convicted and sentenced in accordance with the mandatory nature of the prison term, the state would become the target of widespread negative publicity). Hardwick, however, filed suit against the State of Georgia under 42 U.S.C. sec. 1983, alleging that the statute in question violated his right to intimate association and his right to privacy under the Ninth Amendment and under the Due Process Clause of the Fourteenth Amendment.<br /><br />The federal district court dismissed Hardwick's lawsuit under rule 12) b) 6 (failure to state a claim upon which relief may be granted), resulting in Hardwick perfecting an appeal to the US Court of Appeals for the 11th Circuit. A divided panel of this circuit reversed the district court and reinstated Hardwick's lawsuit, holding that the Georgia sodomy statute violated Hardwick's fundamental rights to privacy and intimate association under the Ninth Amendment and under the Due Process Clause of the Fourteenth Amendment. The panel held that the rights in question were "fundamental" in nature, and remanded the case back to the district court with instructions to apply "strict scrutiny" to the state's defense of the statute. The 11th Circuit quite logically invoked a string of US Supreme Court cases that pertained to sex and privacy in reversing the district court; specifically, the 11th Circuit invoked <strong><em>Griswold v. Connecticut</em></strong>, 381 U.S. 479 (1965), <strong><em>Eisenstadt v. Baird</em></strong>, 405 U.S. 438 (1972), <strong><em>Stanley v. Georgia</em></strong>, 394 U.S. 557 (1969), and <strong><em>Roe v. Wade</em></strong>, 410 U.S. 113 (1973), all of which decisions implicate the right to privacy first enunciated by the Court in <strong><em>Griswold</em></strong>.<br /><br />The US Supreme Court granted certiorari and reversed the 11th Circuit.<br /><br />From the outset, the Court adopted both tone and wording that made it clear that the Court had naked contempt for Hardwick and for gay men and lesbians. Although the Georgia sodomy statute applied to both same-sex and opposite-sex couples alike, the Court focused only on the impact that this statute had on same-sex couples, stating that "[t]he issue issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time." This crude, blunt, and demeaning analysis failed to take into consideration such factors as sexual attraction, love, and relationships, reducing gay men and lesbians to the perpetrators of certain sex acts.<br /><br />This decision was gratuitous in the contempt it displayed for gay men and lesbians, mocking Hardwick's claim that gay people are entitled to respect for their sexual privacy as "at best, facetious." The Court also took it upon itself to berate the lower federal courts for their identification of "fundamental rights," making it clear that, while it respected the countours of the right to privacy identified in the above-mentioned cases, it strongly discouraged any of the lower courts from the identification of additional "fundamental rights," or the expansion of those rights that it already recognized. More generally, the Court made it clear that it disapproved of the very concept of "substantive due process," notwithstanding the fact that it would (statedly) abide by precedent in cases where the Due Process Clauses were interpreted as having a substantive component.<br /><br />This decision was written in tones of sneering contempt. The tone of a US Supreme Court decision can, under some circumstances, be almost as important as the result. In <strong><em>Bowers</em></strong>, the Court used bitter and demeaning language, which became, itself, the target of some criticism. Although the holding of the Court in <strong><em>Bowers</em></strong> was actually very narrow (permitting the states to criminalize same-sex sexual activity), many lower courts took it upon themselves to interpret Bowers as creating a "gay exception" to the US Constitution. A federal district court in Kentucky granted a 12) b) 6 motion to dismiss filed against several Boone Country, KY police officers and against the City of Florence, KY, by a woman named Susan Stemler, appearing to accept police testimony that the US Court of Appeals for the Sixth Circuit found to be utterly lacking in merit (see <strong><em>Stemler v. City of Florence</em></strong>, FED App. 0300P, No. 96-5993 (1997); in this case, the above-mentioned police officers selectively harassed and badgered the plaintiff based on their perception that she was a lesbian; the Sixth Circuit held that "[i]t is inconceivable that <strong><em>Bowers</em></strong> stands for the proposition that the state may discriminate against individuals on the basis of their sexual orientation solely out of animus to that orientation" and went on to write that "[w]e emphatically reject this assertion; the proposition that the state may constitutionally discriminate by enforcing laws only against homosexuals (or Centre College graduates or SAE members) is not now, and never has been, the law."<br /><br />The collateral consequences of <strong><em>Bowers</em></strong> proved to be far more dangerous and far-reaching than the actual holding. <strong><em>Bowers</em></strong> was cited by legislative bodies when such bodies wished to rebuff petitions for the enactment of anti-discrimination statutes (these bodies would assert that they could not pass legislation prohibiting discrimination against unconvicted criminals). <strong><em>Bowers</em></strong> was cited in child custody cases; a state court in Virginia removed a young boy from the custody of his mother (a woman named Sharon Bottoms) and granted custody to the child's grandmother on the basis of the fact that Bottoms was an "unconvicted felon." <strong><em>Bowers</em></strong> was used by opponents of permitting gay men and lesbians to serve in the armed forces of the US on the same terms as heterosexuals; and <strong><em>Bowers</em></strong> was used to justify other forms of discrimination against gay men and lesbians. In short, this decision was a massive stumbling block to the attainment of legal equality by the gay community.<br /><br />However, gay men and lesbians fought back. State constitutions are frequently more generous, either by their terms or as construed by state supreme courts, than the US Constitution. In the face of Bowers, gay activists decided to overturn sodomy statutes by challenging their constitutionality on state constitutional grounds. The first state in which this strategy succeeded was the Commonwealth of Kentucky; in overturning the Kentucky sodomy statute on state constitutional grounds, the Kentucky Supreme Court subjected the US Supreme Court to a verbal thrashing, stating that:<br /><br />"Is there a rational basis for declaring this one type of sexual immorality so destructive of family values as to merit criminal punishment whereas other acts of sexual immorality which were likewise forbidden by the same religious and traditional heritage of Western civilization are now decriminalized? If there is a rational basis for different treatment it has yet to be demonstrated in this case. We need not sympathize, agree with, or even understand the sexual prefence of homosexuals in order to recognize their right to equal treatment before the bar of criminal justice.To be treated equally by the law is a broader constitutional value than due process of law as discussed in the <strong><em>Bowers</em></strong> case. <strong>We recognize it as such under the Kentucky Constitution, without regard to whether the United States Supreme Court continues to do so in federal constitutional jurisprudence. "Equal Justice Under Law" inscribed above the entrance to the United States Supreme Court, expresses the unique goal to which all humanity aspires. In Kentucky it is more than a mere aspiration.</strong> It is part of the "inherent and inalienable" rights protected by our Kentucky Constitution.<br /><br />"Our protection against exercise of "arbitrary power over the ... liberty ... of freemen" by the General Assembly (Section Two) and our guarantee that all persons are entitled to "equal" treatment (in Section Three) forbid a special act punishing the sexual preference of homosexuals. It matters not that the same act committed by persons of the same sex is *502 more offensive to the majority because Section Two states such "power ... exists nowhere in a republic, not even in the largest majority."The purpose of the present statute is not to protect the marital relationship against sexual activity outside of marriage, but only to punish one aspect of it while other activities similarly destructive of the marital relationship, if not more so, go unpunished. Sexual preference, and not the act committed, determines criminality, and is being punished. Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals." [emphasis added]<br /><br />Following this decision by the Kentucky State Supreme Court, gay activists went before other state high courts and made similar appeals, based on the state constitutions in question. States in which such actions succeeded included (in no particular order): Arkansas, Maryland, Minnesota, Georgia, and Tennessee. By 2003, the number of states which had sodomy laws on their books went down from 25 in 1986 to about 14; only one state (Nevada) repealed its sodomy statute, whereas about 10 states lost their legal battles to keep their sodomy statutes on the books as a result of court challenges relying entirely on state constitutional analysis and attack.<br /><br />The reversal of <strong><em>Bowers v. Hardwick</em></strong> in 2003 will be discussed in a separate entry in this blog......<br /><br /><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-21506754670391272902007-02-16T19:12:00.001+00:002009-03-06T15:23:45.123+00:00Examples of Rhetoric from the Right<div align="justify"><span style="font-family:verdana;">In an earlier post, I mentioned the fact that the agendas of the organizations I listed in that post (this list being merely a small subset of some of the more prominent groups making up the hard right) are fundamentally incompatible with the concept of participatory democracy, as the latter concept is viewed and understood by the majority of sociologists and political scientists. The following is a recent example of rhetoric from <strong>Concerned Women for America</strong> (specifically, rhetoric from Beverly <span class="blsp-spelling-error" id="SPELLING_ERROR_0">LaHaye</span>, who spearheads that particular <span class="blsp-spelling-corrected" id="SPELLING_ERROR_1">organization</span>), and should suffice to give the reader a flavor of what these hard right wing groups wish to accomplish in the US:<br /><br />"Christian values should dominate our government... Politicians who do not use the Bible to guide their public and private lives do not belong in office." - Beverly <span class="blsp-spelling-error" id="SPELLING_ERROR_2">LaHaye</span>, Concerned Women for America.<br /><br />In short, Ms. <span class="blsp-spelling-error" id="SPELLING_ERROR_3">LaHaye</span> seeks to overturn one of the guarantees codified in the Constitution of the United States. Specifically, I refer to the guarantee subsumed under Article VI of the US Constitution, which states (in relevant part) that "The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution; <strong><em>but no religious test shall ever be required as a qualification to any office or public trust under the United States</em></strong>."<br /><br />Concerned Women for America -- a group that has consistently opposed the enactment of "hate crimes" statutes because these statutes would enhance penalties for attacks on people where the perpetrators are motivated by hatred of the victims' sexual orientation -- wishes to overturn a constitutional guarantee that has existed since ratification of the US Constitution itself. Consider, for a moment, what James Madison (the fourth US President) had to say about the wall of separation between Church and State (which <span class="blsp-spelling-error" id="SPELLING_ERROR_4">LaHaye</span> so cavalierly dismisses):<br /><br />"The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries." - James Madison, 4<span class="blsp-spelling-error" id="SPELLING_ERROR_5">th</span> president of the United States.<br /><br /><span class="blsp-spelling-error" id="SPELLING_ERROR_6">LaHaye's</span> statement -- which is actually a call to disobey the US Constitution -- is, ironically, protected by the very "liberal interest groups" that right wing organizations love to attack at every possible opportunity. The US Supreme Court ruled, in 1969, that speech cannot be criminalized unless it constitutes "direct incitement to imminent lawless action" (see <strong><em>Brandenburg v. Ohio</em></strong>, 395 U.S. 444).<br /><br />Immediately following the 9/11 terrorist attacks on the World Trade Center towers, the Pentagon, and other targets, Pat Robertson made a statement tot the effect that blame for the terrorist attacks against the US rested firmly on the hands of gay Americans. This shocking and disgusting attempt to whip <span class="blsp-spelling-error" id="SPELLING_ERROR_7">up</span> the forces of hatred in this country backfired; people flooded Robertson's telephone lines with angry calls, and many people who had been less than friendly to the gay community berated Robertson for this statement. The irony, again, is that it is the "liberal" US Supreme Court that permits Robertson (and others of his ilk) to invoke the right to self-expression.<br /><br />Yet again, it is apparent that there exists a huge difference between doing the right thing and having the right to do something. It is unfortunate that so many conservatives blur this distinction or fail entirely to observe it in the first place......<br /><br /><br /><strong><span style="font-size:130%;">PHILIP CHANDLER</span></strong></span></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0tag:blogger.com,1999:blog-6705590065739638649.post-68263836167345532692007-02-15T16:44:00.000+00:002007-02-17T17:01:16.418+00:00Anti-Gay Groups -- the Names of the Players......<div align="justify">A large number of organizations exist in the US, all of which have in common the desire to roll back the progress that gay Americans have made over the course of the past two or three decades. Many of these organizations have existed for years and have chapters across the nation; others were formed in response to specific legislative victories and gains made by the gay community in specific locales at specific times. It is interesting to note the manner in which these organizations have employed careful choice of wording in formulating their titles, both (in the opinion of the writer) to hide the full extent and degree of malevolence and outright hatred that they harbor towards members of the gay community, and to make themselves readily identifiable to similarly-minded individuals and organizations that share the same anti-gay agenda.</div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify">The word "family," when it appears in the name of an organization dedicated to the pursuit of social change, is almost always a dead giveaway. In the guise of "protecting the family," many of these organizations advocate the recriminalization and remedicalization of homosexuality, and attack gay men and lesbians using some of the ugliest lies and evil propaganda imaginable. The purpose of much of the rhetoric espoused and disseminated by these organizations is to convince Americans that it is not possible for gay men and lesbians to coexist with "traditional" families in a multicultural, pluralistic society such as that found in any medium-to-large US city. In fact, it is the writer's contention that these groups pose a clear and present danger to the very concept of democracy itself, and that the beliefs espoused by these groups are actually incompatible with democracy as this term is known and understood by the majority of political scientists and sociologists.</div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify">When sociologists and politicians use the word "democracy," they usually refer to a society in which the will of the majority is inscribed into law, with certain protections created to ensure that the will of the majority will not harm, destroy, or impair certain fundamental rights enjoyed by all members of that society, including members of minorities. In the US, the rights of minorities are chiefly protected by the courts; both the state and federal judiciaries have the power of judicial review, and can strike down not only the manner in which state action is implemented, but also the substance of state action itself. Here in the US, this has been the status quo since the US Supreme Court handed down the decision named Marbury v. Madison, 5 U.S. 137 (1803). In this watershed decision (which is bitterly resented by social conservatives precisely because it prevents them from imposing their anti-gay agenda on US society), the Court enunciated what is considered to be one of the bulwarks of the American democratic system; the judiciary has the power to interpret the law, and in cases where the law conflicts with provisions of the US Constitution, federal judges have both the power and the duty to declare such legislation to be unconstitutional and hence unenforceable. (State court judges also possess the power to adjudicate the constitutionality of state statutes, and to strike down state statutes that conflict with state constitutional provisions; when a state supreme court strikes down a state statute on state constitutional grounds, that decision is immune to review by the US Supreme Court; this is one of the premises that undergirds our system of judicial federalism. State courts are not limited to the adjudication of state constitutional issues; state courts are fully entitled to adjudicate federal constitutional issues too. However, when a state supreme court adjudicates a federal constitutional issue, its decision is reviewable by the US Supreme Court, which is the final arbiter of federal law and US Constitutional interpretation. (In those cases where a state supreme court relies upon both state and US constitutional analysis to arrive at a judgment, the US Supreme Court is limited in its inquiry to a review of the state court's adjudication of the US constitutional issues involved; if the judgment would still be carried by the state court's interpretation of state law and the state constitution in question following the US Supreme Court's rejection and reversal of the US constitutional analysis -- i.e. if there exist "independent state constitutional grounds" to support and compel the judgment -- then the US Supreme Court cannot reverse the judgment. State constitutions are frequently more generous with respect to the protections that they grant citizens from the state than is the US Constitution, either by their actual terms or as construed by state supreme courts; for example, many state constitutions specifically make reference to and recognize a right to privacy that is much more generous than the right to privacy recognized in the US Supreme Court's privacy jurisprudence.))</div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify"></div><div align="justify">Bearing the above in mind, we turn to the most visible and energetic of the anti-gay groups, a few of which are listed below:</div><p align="justify"><br />American Family Association (<a href="http://www.afa.net/">http://www.afa.net/</a>)<br />Family Research Institute (<a href="http://www.familyresearchinst.org/">http://www.familyresearchinst.org/</a>)<br />Family Research Council (<a href="http://www.frc.org/">http://www.frc.org/</a>)<br />Focus on the Family (<a href="http://www.fotf.org/">http://www.fotf.org/</a>)<br />Colorado for Family Values<br />Alliance Defense Fund (<a href="http://www.alliancedefencefund.org/">http://www.alliancedefencefund.org/</a>)<br />Concerned Women for America (<a href="http://www.cwfa.org/">www.cwfa.org</a>)</p><div align="justify"><br />Of these organizations, the first two (AFA and FRI) publish what are considered by many people, including the writer, to be the most gratuitously vicious and filthy lies imaginable. The AFA hides behind this benign name to oppose such common-sense measures as adding sexual orientation to the list of characteristics (e.g. race, national origin) that may not be taken into consideration in making decisions pertaining to employment, housing, access to places of public accommodation, and the extension of credit. Few Americans realize that, at present, the Civil Rights Act of 1963 (as amended during the 1990s) does not include sexual orientation as a protected class. About 15 states have crafted state statutes prohibiting such discrimination statewide, leading to situations in which a gay person may be protected from irrational and cruel decisions to dismiss or demote him or her depending on the state in which that person is employed. Some of the ugliest and most malevolent lies are published by the AFA, which has also mounted a long-running boycott against Ford Motor Company due to the fact that Ford has tailored several of its commercials to target a gay consumer base, and due to the fact that Ford has sponsored several gay events. As more and more employers grant domestic partner benefits to the spouses of their gay employees, so the AFA becomes more and more vociferous in its attacks on corporate America. The AFA regularly endorses slanderous "studies" that purport to show that pedophiles tend to be gay (thereby conflating pedophilia and male homosexuality, which are in fact two entirely different issues). Pedophiles prey upon and sexually abuse children, and the majority of pedophiles self-report as being married heterosexual men. Homosexuality, on the other hand, was dropped from the list of mental disorders recognized by the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1973, following a unanimous vote by the Nomenclature Committee of the American Psychiatric Association (the American Psychological Association also dropped homosexuality from the list of mental disorders in 1973). Gay men and lesbians do not prey on children; by definition, they are individuals who are sexually and romantically attracted to members of the same sex.</div><div align="justify"><br />The Family Research Institute (FRI) is as debased and as immoral in its attacks on the gay community as is the AFA, if not more so. Prominent among its staff is an ex-psychologist who was stripped of his license to practice psychology in the only state where he had such a license (Nebraska) following the filing of serious allegations against him -- specifically, allegations that he had knowingly distorted the research of his colleagues in an effort to show that gay men tended, disproportionately, to be child molesters (when, in fact, the research that he distorted led to exactly the opposite conclusion). In addition to losing his license to practice psychology, Cameron was expelled from the American Psychological Association (APA). The bylaws of the APA make it absolutely clear that any member of the APA who resigns during the course of being investigated for ethics violations is expelled from the APA -- regardless of what that member may state to the contrary. This is exactly what happened in Cameron's case.</div><div align="justify"><br />Cameron likes to brag about the work he has had published in a journal named "Psychological Reports." However, "Psychological Reports" is what is referred to as a vanity journal -- individuals who wish to have their work published in this journal pay by the page for such publication. This is most certainly not the manner in which genuine, peer-reviewed journals such as, for example, the "New England Journal of Medicine" publish the results of research. It is an honor to be published in a real, peer-reviewed journal, and the person whose work is published in such a journal does not pay by the page for his or her work to be printed! Contrary to Cameron's outrageous "findings" to the effect that most child molesters are gay men, Dr. Carole D. Jenney (a specialist who works with abused children in Denver, CO) published a paper showing that the overwhelming majority of child molesters self-identify as heterosexual men.</div><div align="justify"><br />Not to be outdone, Cameron went on to claim that he was a sociologist. The American Sociological Association took the unusual step of releasing an announcement to the media, stating that Cameron was not a sociologist and that he was certainly not a member of the American Sociological Association.</div><div align="justify"><br />During the mid-1980s, Cameron was verbally thrashed by Federal District Court Judge Jerry Buchmeyer, who accused Cameron of deliberately trying to mislead the Court in a trial involving the constitutionality of the Texas sodomy statute (which is, of course, now dead following the US Supreme Court's recent decision in Lawrence v. Texas, 539 U.S. 558 (2003)). Buchmeyer accused Cameron of attempting to "perpetrate a fraud" against the Court.</div><div align="justify"><br />The above are merely a few of the anti-gay hate groups that gay Americans have to deal with in order to make social and legal progress in the US. The Family Research Council is another group that disseminates lies and misinformation in its attempt to discredit and to defame the gay community. Now that the Democrats have both chambers of Congress under their control, it is quite possible that the Employment Non-Discrimination Act (ENDA) may finally stand a chance of passage. This Act would prohibit employers nationwide from making hiring, firing, or promotion decisions based on the sexual orientation of employees. Those who claim that this legislation would grant gay Americans "special rights" fail to take into consideration the fact that this statute would apply to everybody -- not just to heterosexuals. The writer has patronized gay bars in Chelsea, NY where the bartenders have been heterosexual, and nobody has objected to this. The ability, competence, and willingness of the bartenders to do their jobs in a friendly and efficient manner have been the only criteria that have mattered to patrons, and the bartenders in question doubtless learned -- simply through exposure to gay people -- something about the humanity of their clientele. In order to survive equal protection challenges, non-discrimination laws are written to identify a characteristic possessed by everybody and to make it illegal to make adverse decisions on the basis of that characteristic -- in this case, sexual orientation (not homosexuality). Thus, heterosexuals are also protected from discrimination at the hands of gay men and lesbians. Everybody has a sexual orientation.</div><div align="justify"><br />The FRC contends that the addition of sexual orientation to federal hate crimes statutes would in some way constitute "thought policing" of the people. Yet federal hate crimes statutes already permit for penalty enhancements in cases where attacks against people are motivated on the basis of race or national origin. The FRC does not explain how the addition of sexual orientation to federal hate crimes statutes would constitute "thought policing" of the people. Once again, all people are protected from violence by such statutes, which specify that the commission of hate crimes motivated by the race of the victim result in heavier punishment than common assaults. Once again, these laws cut both ways -- they apply to white and non-white offenders alike.</div><div align="justify"><br />The above is merely a brief list of some of the more prominent anti-gay hate organizations in existence here in the USA. There are, of course, other organizations with vicious and pernicious objectives. This will be discussed in subsequent additions to this blog. </div><div align="justify"><br /></div><div align="justify"><br /><strong>PHILIP CHANDLER</strong></div>Philip Chandlerhttp://www.blogger.com/profile/14101934779909568450noreply@blogger.com0