Friday, August 31, 2007

The Senator Craig Transcripts

So, the transcripts of the post arrest interview of Senator Larry Craig have been released. See Transcript of Police Interview of Sen. Larry Craig, (Aug. 30, 2007). The entire tapes transcript is worth a read. They remind us that the promise of Lawrence v. Texas, 539 U.S. 558 (2003) has still a ways to go. But the most interesting aspect for me was the way in which the solicitation was made and the arrest pursued:

DK: Okay Urn, I just wanna start off with a your side of the story, okay. So, a

LC: So I go into the bathroom here as I normally do, I'm a commuter too here.

DK: Okay.

LC: I sit down, urn, to go to the bathroom and ah, you said our feet bumped. I believe they did, ah, because I reached down and scooted over and urn, the next thing I knew, under the bathroom divider comes a card that says Police. Now, urn, (sigh) that's about as far as I can take it, I don't know of anything else. Ah, your foot came toward mine, mine came towards yours, was that natural? I don't know. Did we bump? Yes. I think we did. You said so. I don't disagree with that.

DK: Okay. I don't want to get into a pissing match here.

LC: We're not going to.

Transcript, supra.

So allow me to be a bit provocative: As the tapes make clear, the state continues to take as its basic premise that same sex solicitation is closer to prostitution and other acts of lewdness, than it is to the casual solicitation of affective (sexual) interest between people of different sexes (and specifically between adult men and women). The state spends little time policing against any but the rudest forms of solicitations of sexual interest between men and women. The state devotes a tremendous amount of energy on vice--both sex for hire (whatever the sex of the participants) and sex between (in this case) men. That conflation ought to trouble us today far more than it did back in the days before Lawrence. Until the expression of sexual desire among anyone but heterosexual couples is uncoupled from the prostitution/lewdness construct, the expression of non conformist sexual desire will remain suspect, irrespective of the availability of the safe harbors" of civil unions and "gay" spaces.

Thursday, August 30, 2007

Same-Sex Marriage a Right Under Iowa Constitution

A state trial court in Iowa ruled today that same-sex couples have the right to marry. The decision is grounded in the due process and equal protection clauses of the Iowa Constitution. The decision can be downloaded at the following link:

Wednesday, August 29, 2007

“I am not gay. I never have been gay.”

One thing that is striking to me in the controversy around Senator Larry Craig (R-ID) and his alleged solicitation of sex in an airport men's room is his statement yesterday:
"I am not gay. I never have been gay."
Sen. Craig gives up four Senate committee seats; colleagues call for resignation, Idaho Statesman, Aug. 29, 2007.

It raises the question: what is it to be gay? Could the allegations about his seeking anonymous sex in a men's room be true and his statement that he's not gay also be true?

They say (I don't have a citation handy) that the large majority of men who sexually abuse boys identify as straight. It seems plausible to me that that many men who seek anonymous sexual encounters with other men in restrooms, parks, etc., might likewise identify as straight.

On the other hand, it seems quite plausible that men could identify as gay and not have sex with men (let alone anonymous sex in public places).

Another question raised by Sen. Craig's statement is why he would so vehemently deny being gay. Well, because he probably sees it as shameful -- indeed more shameful than either (a) being caught soliciting anonymous sex or (b) having such poor judgment as to plead guilty to a crime he didn't commit without consulting counsel (which is what he says he did).

Tuesday, August 7, 2007

Interested in Putting Up a Post of Your Own?

I have designed Bent Law to be a conversational blog rather than a one-way soap box.

Anyone is free to post a comment about an existing post—just click on the word "comment" at the end of a relevant post and follow the instructions.

Moreover, if you would like to put up a new post on a topic that is germane to this blog, just send me an email message with your name and email address and I will be more than happy to add you on as an authorized author! (To send me an email, just click on my name on the list of contributors on the right-hand side of the screen, and then click on the word "email" under contacts when my profile pops up).

Saturday, August 4, 2007

10th Circuit Holds Oklahoma Adoption Invalidation Law Unconstitutional

In 2004, Oklahoma enacted a law that provided in pertinent part that the State of Oklahoma "shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction."

On August 3, 2007, the U.S. Court of Appeals for the Tenth Circuit affirmed a trial court decision striking down the statute as unconstitutional under the Full Faith and Credit Clause of the U.S. Constitution. The opinion discusses the distinction between the full faith and credit that must be given to sister-state laws in making choice-of-law decisions (minimal) from the full faith and credit that must be given to sister-state judgments such as adoption decrees (exacting).

The opinion can be found at the following link (although it is 37 pages long, most of it is dedicated to standing; the merits of the case are addressed on pages 25-37 of the opinion):

Friday, August 3, 2007

The Same-Sex Marriage Debate and Indian Country

I came across the law review title "Same-Sex Marriage, Indian Tribes, and the Constitution," and couldn't resist skimming it (Matthew L.M. Fletcher, 61 U. Miami L. Rev. 53 (2006), on Westlaw here).

The author begins with a 19th century state case recognizing a polygamous marriage among Chippewa Indians because the tribe at that time recognized such marriages. He uses that as a springboard into the same-sex marriage debate and what it could possibly mean for tribal sovereignty. Pieces of the puzzle:
  • After Goodridge two lesbians applied for (and were denied) a marriage license on the Cherokee reservation. Their appeal was dismissed on procedural grounds.
  • The Navajo Nation passed a Defense of Marriage Act.
  • The federal DOMA explicitly mentions Indian tribes as sovereigns that don't have to recognize marriages recognized by other states and tribes.
  • Drafts of the proposed constitutional amendment to preserve marriage as heterosexual only do not mention Indian tribes.
Much of the article is speculative -- what if a constitutional amendment DOMA passes? what if there were a federal law requiring recognition of same-sex marriages, what if some tribes recognized such marriages? -- so speculative that I had a "so what?" reaction. But it is a good reminder that we're looking at a lot more sovereigns than 50 states, DC, and the federal government.

If someone registered as a domestic partner in Washington State is hurt on the Yakama Nation reservation and taken to a clinic there, does the partner get to visit and make decisions?