tag:blogger.com,1999:blog-37767124971940374442024-03-04T21:24:25.373-08:00Bent LawA blog about gay rights and the lawPeter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.comBlogger32125tag:blogger.com,1999:blog-3776712497194037444.post-76127439954264221012009-07-21T06:36:00.000-07:002009-07-21T06:40:26.024-07:00On Academic Freedom<span id="_ctl0_MainContent_phAuthor"> Ian Barnard has written an essay on academic freedom and issues of sexual orientation, political views and the unwritten rules of academic discipline well worth reading: </span><a href="http://www.aaup.org/AAUP/pubsres/academe/2009/JA/Feat/barn.htm">Academic Freedom and Me </a> <span id="_ctl0_MainContent_phDeck"><a href="http://www.aaup.org/AAUP/pubsres/academe/2009/JA/Feat/barn.htm">The complications of politics, culture, and academic freedom in one career</a>.</span><span id="_ctl0_MainContent_phAuthor"> </span>Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-38791423076226344032008-10-21T20:28:00.000-07:002008-10-21T20:43:25.858-07:00The Indian Government and the Homosexuality Disease<div style="text-align: justify;">The Times of India recently reported on a case before the Indian High Court challenging Section 377 of the Indian penal code criminalizing sodomy and the like. To bolster its case, the Indian government has asserted arguments long popular before U.S. courts of a generation ago: (1) that homosexuality is a disease, (2) that Indian society as a whole disapproves of homosexuality and that consensus ought to be enough to support its criminalization, (3) that sexual acts between same sex individuals is immoral, a social vice a means of spreading disease and an agent of moral degradation, (4) same sex acts are against the order of nature, (5) that legalization of homosexuality would divide the country and cause social unrest, and (6) that legalization would lead to changes in marriage and divorce laws. The government is also using the case for strengthening its arguments for a broad view of parliamentary supremacy (that acts of Parliament, representing the will of the people cannot be reviewed by or set aside by any court). Lastly, the government is using the case to limit the use of transnational legal and human rights standards, arguing that constitutional norms in India ought to be made by reference solely to Indian traditions. "Our constitution does not talk about sexual orientation. We cannot impose other countries' constitutions on us. Our moral and ethical values are different." Homosexuality Not a Disease: HC, <span style="font-style: italic;">The Times of India</span>, Mumbai Oct. 21, 2008 at A-11 (Times/Nation Section) (quoting Solicitor General P.P. Malhotra). <br /></div>Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-88362811676719466012008-10-02T15:24:00.000-07:002008-10-02T15:28:17.683-07:00Measure of Your Political CompassFor a little relief from the election rhetoric and to get a sense of your own political orientation you might find the self test for your political compass interesting. To access the test go to the following site of the <a href="http://www.politicalcompass.org/">political compass</a>.Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-32553219544059777612008-09-29T13:37:00.000-07:002008-09-29T13:37:46.940-07:00Washington bar supports same-sex marriageI'd missed that our state bar came out in favor of same sex marriage -- until I saw this longish article: <a href="http://www.spokesmanreview.com/tools/story_pf.asp?ID=262552">SR.com: Washington bar supports same-sex marriage</a>, Spokesman Review (AP), Sept. 29, 2008.<br /><br />WSBA's press release (Sept. 22, 2008) is <a href="http://www.wsba.org/media/releases/marriageresolution+0908.htm">here</a>.Mary Whisnerhttp://www.blogger.com/profile/06780343632178750011noreply@blogger.com1tag:blogger.com,1999:blog-3776712497194037444.post-27355170215762549622008-09-25T11:11:00.000-07:002008-09-25T11:28:51.966-07:00Intersectionality: African Americans, Religion and Marriage Rights for the LCBT Community in California<div style="text-align: justify;">Intersectionality analysis serves as a reminder of complexity in even the most seemingly straightforward issues. This is particularly the case among communities that share a sense of oppression or subordination but perhaps little else. It is also a complicating factor when the issue involves communities that share some of the characteristics of subordinated and some of the characteristics of subordinated communities. That appears to be the case with respect to same sex marriage in California. A recent New York Times article highlighted the tension within two politically progressive communities joined in the struggle against subordination but separated by a difference in understanding of what ought to be privileged and what not in the greater struggle. See <span class="slugline">Jesse McKinley, <a href="http://www.nytimes.com/2008/09/21/us/politics/21gay.html">Same Sex Marriage Ban is Tied to Obama Factor</a>, New York Times, September 21, 2008, at A-18..</span> But the issue is complicated. While the African American community appears to be partial to a particular perspective in California, some leaders of the African American community in Georgia have seen things differently. See Andrew Jacobs, B<a href="http://query.nytimes.com/gst/fullpage.html?res=9C02E1D8153FF930A35750C0A9629C8B63&sec=&spon=">lack Legislators Stall Marriage Amendment in Georgia</a>, New York Times, March 3, 2004. The politics of inrtersecitonality will find a valuable laboratory in the coming weeks in California.<br /></div>Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-737281120114106012008-09-23T18:24:00.000-07:002008-09-29T13:34:24.984-07:00Dishonorable Passions - William N. Eskridge, Jr.<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg6N6q4YZYMHKKVIR8_AdhyA5Zb4jj_MC4XdmaOLT3oplyNyO1z7XXcaQWBg3HW_cPOmwyOeczogDEHZN-vFJrb-QjSOosXuE1ARxfr4oo5_hNkqpihdXwmRZHsGR6x2hToisjY-zK1zcXV/s1600-h/Dishonorable+Passions.jpg"><img style="float:right; margin:0 0 10px 10px;cursor:pointer; cursor:hand;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg6N6q4YZYMHKKVIR8_AdhyA5Zb4jj_MC4XdmaOLT3oplyNyO1z7XXcaQWBg3HW_cPOmwyOeczogDEHZN-vFJrb-QjSOosXuE1ARxfr4oo5_hNkqpihdXwmRZHsGR6x2hToisjY-zK1zcXV/s400/Dishonorable+Passions.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5249392903018384834" /></a><br />New in the Library:<br /><a href="http://us.penguingroup.com/nf/Book/BookDisplay/0,,9780670018628,00.html?strSrchSql=dishonorable/Dishonorable_Passions_William_N._Eskridge,_Jr."><em>Dishonorable Passions</em></a>, by William N. Eskridge, Jr. (KF9328.S6 E84 2008 at Classified Stacks). The publisher's description: <blockquote>From the Pentagon to the wedding chapel, there are few issues more controversial today than gay rights. As William Eskridge persuasively demonstrates in Dishonorable Passions, there is nothing new about this political and legal obsession. The American colonies and the early states prohibited sodomy as the “crime against nature,” but rarely punished such conduct if it took place behind closed doors. By the twentieth century, America’s emerging regulatory state targeted “degenerates” and (later) “homosexuals.” The witch hunts of the McCarthy era caught very few Communists but ruined the lives of thousands of homosexuals. The nation’s sexual revolution of the 1960s fueled a social movement of people seeking repeal of sodomy laws, but it was not until the Supreme Court’s decision in Lawrence v. Texas (2003) that private sex between consenting adults was decriminalized. With dramatic stories of both the hunted (Walt Whitman and Margaret Mead) and the hunters (Earl Warren and J. Edgar Hoover), Dishonorable Passions reveals how American sodomy laws affected the lives of both homosexual and heterosexual Americans. Certain to provoke heated debate, Dishonorable Passions is a must-read for anyone interested in the history of sexuality and its regulation in the United States.</blockquote>Mary Whisnerhttp://www.blogger.com/profile/06780343632178750011noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-29153541884537574472008-06-17T10:51:00.000-07:002008-06-17T11:09:55.970-07:00Cuba Authorizes Sex Change Operations<div style="text-align: justify;">While some Americans are celebrating the actions of the California Supreme Court invalidating prohibitions against gay marriage in California, sexual non conformists in oher parts of the world are slowly gaining rights and recognitions that the LGBT community in this country sometimes takes for granted. In Cuba, a country in which the ruling ideology, while usually characterized as "leftist" in matters of economic policy and fairly prissy in matters of sexual politics, it is telling that the government of Raul Castro has recently approved sex change operations for transsexuals. For a report (in Spanish), see <span class="tituloNota"><a href="http://www.lanacion.com.ar/1019086">Cuba autoriza la operación de cambio de sexo</a>, La Nación (arg.) June 6, 2008). It is now clear that there will be significant changes within Cuba in the coming months. Not only is Raul Castrio to shed the nation of its Stalinist organization and approch to economic policy in favor of Deng Xiaoping engagement with globalization, but it seems that he will be much more progressive when it comes to issues of sexual politics. How much more liberal, of course, remains to be seen. This is certainly a step in a direction that would have been impossible under the rule of his brother. And more may be on the way.<br /></span><blockquote>Con el apoyo de su padre y del gobernante Partido Comunista -departamentos ideológico y de cultura-, Mariela Castro, hija del nuevo líder cubano, encabezó a mediados de mayo una cruzada nacional contra la homofobia que estremeció los cimientos machistas cubanos sostenidos durante cinco siglos. </blockquote>Id. (transliteration: "With the support of her father and the ideological and cultural departments of the ruling Communist Party, Mariela Castro, daughter of the new Cuban leader from the middle of May headed a national campaign agabnist homophobia that was meant to shake the foundaitonal Cuban machismo privileged during the last five centuries"). Id.<br /><br /></div>Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-25725264103846155952008-05-21T19:54:00.000-07:002008-05-21T19:57:57.303-07:009th Circuit Deals a Blow to Military's Don't Ask, Don't Tell PolicyThe opinion can be found at the following link:<br /><br /><a href="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DE9D0217A8A2A1758825744F007E23F3/$file/0635644.pdf?openelement">http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DE9D0217A8A2A1758825744F007E23F3/$file/0635644.pdf?openelement</a><br /><br />In brief, all three judges on the panel found the policy to be constitutionally infirm.<br /><br />The plaintiff raised both substantive due process and equal protection claims.<br /><br />The two judges writing in the majority held as follows:<br /><br />(1) Substantive due process claim: The judges concluded that <em>Lawrence v. Texas</em> requires heightened (intermediate) scrutiny of the law because it infringes on a fundamental right. Under that standard, as articulated by the judges, the law must (a) significantly further (b) an important governmental interest; and (c) the law must be necessary to further that interest, with no less intrusive means available that would further the interest. The analysis is to be done on an as-applied basis to each person impacted by the policy.<br /><br />(2) Equal protection claim: The judges concluded that such a claim is subject only to rational basis scrutiny and that it survives such scrutiny (based on prior precedent in the Circuit).<br /><br />The third judge would go further, holding as follows:<br /><br />(1) Substantive due process claim: He would apply strict scrutiny.<br /><br />(2) Equal protection claim: He would apply strict scrutiny, for two different reasons: (a) that gays and lesbians are a suspect class; and (b) the statute impinges on a fundamental right.Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com1tag:blogger.com,1999:blog-3776712497194037444.post-69093291900962049272008-05-15T19:46:00.000-07:002008-05-15T19:54:06.591-07:00California Supreme Court on Same-Sex MarriageThe opinion can be found here:<br /><br /><a href="http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF">http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF</a><br /><br />Here is my summary of the Court's holding:<br /><br />(1) The Court held that it violates the California constitution to allow opposite-sex but not same-sex couples to marry, applying strict scrutiny for three different reasons:<br /><br />(a) A fundamental right is involved (right to marry) under the due process and privacy clauses of the California constitution<br /><br />(b) Sexual orientation discrimination is involved. Court holds that such discrimination is, like race and gender discrimination, subject to strict scrutiny under California's equal protection clause. Court further holds that you don't need to show current political powerlessness, nor do you need to show immutability.<br /><br />(c) Fundamental right prong of California's equal protection clause<br /><br />(2) The court held that it is unconstitutional to have a parallel scheme of"domestic partnerships." It leaves open the possibility that the legislature could change the name of "marriage" for everyone so that everyone gets a domestic partnership."Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-91650744640024170182008-05-07T19:28:00.000-07:002008-05-09T09:16:14.386-07:00Michigan Supreme Court Decision on Domestic Partnership BenefitsIn a 5-2 decision, the Michigan Supreme Court has held that the state's constitutional amendment providing that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" prohibits public employers in Michigan from providing health-insurance benefits to their employees' same-sex domestic partners.<br /><br />Read the decision here:<br /><br /><a href="http://courts.michigan.gov/supremecourt/Clerk/11-07/133429/133429-Opinion.pdf">http://courts.michigan.gov/supremecourt/Clerk/11-07/133429/133429-Opinion.pdf</a>Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-2976802002356934322008-05-05T18:58:00.000-07:002008-05-09T09:16:40.345-07:00Mildred Loving has diedMildred Loving, who along with her husband fought Virginia's anti-miscegenation statute all the way to the U.S. Supreme Court in <em>Loving v. Virginia</em>, has died.<br /><br />The following statement, released by Mrs. Loving last year, on the 40th anniversary of <em>Loving v. Virginia</em>, tells you all you need to know about this remarkable woman:<br /><br /><strong><span style="font-size:180%;">Loving for All</span></strong><br /><br /><span style="font-size:85%;">By Mildred Loving</span><br /><br /><span style="font-size:85%;">Prepared for Delivery on June 12, 2007,The 40th Anniversary of the Loving vs. Virginia Announcement</span><br /><br />When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.<br /><br />We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.<br /><br />When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?<br /><br />Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.<br /><br />We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.<br /><br />Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”<br /><br />My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.<br /><br />Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.<br /><br />I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-84509840977373696932008-05-04T11:33:00.001-07:002008-05-04T12:49:32.083-07:00Legal Protections for Same Sexd Couples Under Israeli LawIn a decision that will likely be further reviewed, "<span class="lead">The Tel Aviv Family Court rejected on Sunday the domestic violence suit of a man who claimed his male partner harassed him, on the grounds that according to the court's interpretation, Israeli law does not define same-sex couples as a legitimate family.</span>" <a href="http://www.jpost.com/servlet/Satellite?cid=1209627007814&pagename=JPost%2FJPArticle%2FShowFull">Same Sex Couple Not Defined as Family</a>, Jerusalem Post, May 4, 2008. What makes the decision interesting, and of potential relevance to law in the United States, was the basis of decision--grounded in both law and religion. The judge determined that the statute might not have been applicable. But his narrow interpretation might be open to question. More interesting was the constitutional aspect of the decision:<br /><span class="lead"><p></p><blockquote>According to the judge, the problem lies in the wording of the law concerning the basic dignity and freedom of man. The first paragraph of the law states that human rights are to be respected according to the principles outlined in the proclamation of the state. The Declaration of Independence mandates "a Jewish state in the land of Israel that will be based on the principles of freedom, justice and peace, in the guiding light of the visions of the prophets of Israel." The prophets of Israel did not look favorably upon homosexual relationships.</blockquote> <p></p></span>Id. Stay tuned.Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-64094631742772155472008-04-28T22:29:00.000-07:002008-05-09T09:16:55.895-07:00How to Take Things Out of ContextThe New York Times Magazine had a wonderful article about young gay men getting married to one another in Massachusetts. You can read the article here:<br /><br /><a href="http://www.nytimes.com/2008/04/27/magazine/27young-t.html?ei=5087&em=&en=9e7defb1e57bd2db&ex=1209528000&pagewanted=all">http://www.nytimes.com/2008/04/27/magazine/27young-t.html?ei=5087&em=&en=9e7defb1e57bd2db&ex=1209528000&pagewanted=all</a><br /><br />And here is the Christian Post's analysis of the article, using it as proof that same-sex marriage will change heterosexual marriage...for the worse:<br /><br /><a href="http://www.christianpost.com/article/20080428/32146_The_New_Face_of_Gay_Marriage.htm">http://www.christianpost.com/article/20080428/32146_The_New_Face_of_Gay_Marriage.htm</a>Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-80159541324176786692008-04-24T21:24:00.000-07:002008-05-09T09:17:11.748-07:00Seventh Circuit Anti-Gay T-shirt CaseIn an opinion penned by Judge Posner, the 7th Circuit has held that a school violated students' 1st Amendment rights by banning students from wearing a t-shirt that reads "Be Happy, Not Gay" (a response to day of silence t-shirts worn by gay and pro-gay students). The opinion can be found at the following link:<br /><br /><a href="http://www.ca7.uscourts.gov/tmp/CR1FGL6H.pdf">http://www.ca7.uscourts.gov/tmp/CR1FGL6H.pdf</a>Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-78946064558408632142008-04-11T11:25:00.000-07:002008-05-09T09:17:26.250-07:00Florida GSA suit dismissed<p>Hey everyone,<br /></p><p>I was poking around some news stories and came across the following http://365gay.com/Newscon08/04/041008fla.htm.<br /></p><p>From what I understand, essentially, gay-straight alliances in public schools are always in court fighting for recognition. however, in this case the judge dismissed the case because the named student in the case graduated the high school - so there is no case or controversy anymore. The judge refused to allow current students to be added to the suit to keep it alive. So now current students must start the suit over again. The original district court suit was filed over 2 years ago.......so what are your thoughts on this issue evading review because of mootness????<br /></p>Dave I.http://www.blogger.com/profile/16367011510911326024noreply@blogger.com1tag:blogger.com,1999:blog-3776712497194037444.post-24188894124918997462008-03-12T17:54:00.000-07:002008-03-13T07:06:20.155-07:00Oklahoma and its "Homosexual" Problem<div style="text-align: justify;">Americans have a lot to worry about. Not since the 1950s ave Americans been assaulted by so many threats at home an abroad. There is danger in every space available for such things. Even the insides of our heads are not safe.<br /></div><br /><div style="text-align: justify;">Fortunately, there are any number of people ready to watch and warn of new dangers--meteorologists, newscasters, pundits, soothsayers, and now an esteemed member of the Oklahoma legislature. lA state legislator from Oklahoma has finally focused the nation's priorities correctly. It is not terrorism, nor religion (that is, religion not her own), nor even the economy or the desperate position of native peoples in Oklahoma. No, the critical issue facing the people of Oklahoma is the threat of homosexuality. From Wikipedia:<br /></div><br /><div style="text-align: justify;"><blockquote><b>Sally Kern</b> (born <a href="http://en.wikipedia.org/wiki/November_27" title="November 27">27 November</a> <a href="http://en.wikipedia.org/wiki/1946" title="1946">1946</a>, <a href="http://en.wikipedia.org/wiki/Jonesboro%2C_Arkansas" title="Jonesboro, Arkansas">Jonesboro, Arkansas</a>) is an <a href="http://en.wikipedia.org/wiki/Oklahoma" title="Oklahoma">Oklahoma</a> <a href="http://en.wikipedia.org/wiki/Oklahoma_House_of_Representatives" title="Oklahoma House of Representatives">state legislator</a> from <a href="http://en.wikipedia.org/wiki/Oklahoma_City" class="mw-redirect" title="Oklahoma City">Oklahoma City</a>.<span style="text-decoration: underline;"> </span> Kern, a member of the <a href="http://en.wikipedia.org/wiki/Republican_Party_%28United_States%29" title="Republican Party (United States)">Republican party</a>, represents House District 84. A former teacher, she graduated from the <a href="http://en.wikipedia.org/wiki/University_of_Texas" class="mw-redirect" title="University of Texas">University of Texas</a> and <a href="http://en.wikipedia.org/wiki/East_Texas_State_University" class="mw-redirect" title="East Texas State University">East Texas State University</a>. She is married to Steve Kern, pastor of Olivet Baptist Church. . . . . , Kern made national headlines when she stated "I honestly think [homosexuality is] the biggest threat our nation has, even more so than <a href="http://en.wikipedia.org/wiki/Terrorism" title="Terrorism">terrorism</a> or <a href="http://en.wikipedia.org/wiki/Islam" title="Islam">Islam</a> - which I think is a big threat, OK? Cause what's happening now is they are going after, in schools, two-year olds...And this stuff is deadly, and it’s spreading, and it will destroy our young people, it will destroy this nation." After receiving attention for the remarks, Kern said "I said nothing that was not true" and refused to apologize.</blockquote></div><a href="http://en.wikipedia.org/wiki/Sally_Kern">Wikepedia, Sally Kern</a>. For the video of the comments, see <a href="http://www.cnn.com/video/#/video/us/2008/03/10/dnt.ok.lawmaker.anti.gay.kwtv" class="external text" title="http://www.cnn.com/video/#/video/us/2008/03/10/dnt.ok.lawmaker.anti.gay.kwtv" rel="nofollow">Anti-gay stance hits YouTube: An Oklahoma lawmaker's anti-gay comments are attracting national attention. </a><br />For discussion of the lawmaker's reactions to exposure and her refusal to apologize for her remarks, see, e.g., <a href="http://www.newsok.com/article/3214388/" class="external text" title="http://www.newsok.com/article/3214388/" rel="nofollow">Kern vows not to apologize for remarks against homosexuals;</a><span style="text-decoration: underline;"> </span> <a href="http://www.democracynow.org/2008/3/11/headlines#6" class="external text" title="http://www.democracynow.org/2008/3/11/headlines#6" rel="nofollow">Oklahoma State Rep.: Gays “Biggest Threat” to U.S.;</a><span style="text-decoration: underline;"> </span> <a href="http://www.planetout.com/news/article.html?2008/03/10/3" class="external text" title="http://www.planetout.com/news/article.html?2008/03/10/3" rel="nofollow">PlanetOut online news;</a> <a href="http://jmbzine.com/2008/03/10/rep-sally-kern-responds-to-criticism-over-anti-gay-hate-speech/" class="external text" title="http://jmbzine.com/2008/03/10/rep-sally-kern-responds-to-criticism-over-anti-gay-hate-speech/" rel="nofollow">JMBzine: Rep. Sally Kern responds to anti-gay hate speech.</a><br /><br /><div style="text-align: justify;">It is refreshing, I suppose, to experience "old timey" queer baiting in one of its more pristine forms. The old nostrums about gay predators have been a long time dying. Now it seems that idea is making a come back. For a discussion, see <a href="http://web.mac.com/lcb911/iWeb/Larry%20Cata%20Backer/My%20Published%20Work_files/71TulaneLRev529%281996%29InventHomosex.pdf">Larry Catá Backer, Inventing a ‘Homosexual’ for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts,</a> 71 Tul. L. Rev. 529 (1996). In the old days, the idea of sexual non conformists as pied pipers was quite current. And the idea that teaching tolerance would open the door to greater acceptance of the blandishments of these Swengalis commonly accepted as part of the so called homosexual agenda. Now the old days are back again--at least in Oklahoma. Of course Representative Kern has no reason to apologize. She means every word she said. And she believes them, too. And that is the tragedy, and the threat. While many in the LGBT community have been focusing on second and third generation issues--marriage, social acceptance, etc.--the first generation issues remain quite potent. In that context, the threat of violence remains high, and the use of the state to enforce sectarian norms even higher. As Representative Kern's spouse might agree, the likely language of the contest for influence will be religious, rather than political, scientific or secular. <a href="http://web.mac.com/lcb911/iWeb/Larry%20Cata%20Backer/My%20Published%20Work_files/30CapitalULRev221%282002%29ReligionSameSexMar.pdf"> See Larry Catá Backer, Religion and the Discursive Language of Same Sex Marriage</a>, 30 Capital University Law Review 221 (2002).<br /></div>Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com1tag:blogger.com,1999:blog-3776712497194037444.post-26111957768325897462008-03-07T09:28:00.000-08:002008-03-07T09:36:38.609-08:00An Interesting Blog Post By Jose GabilondoOur colleague at Florida International University, José Gabilondo, has just published some interesting thoughts on his new blog, appropriately titled, <a href="http://fiulawnews.com/gabilondo/">Professor Gabilondo's Blog</a>. The title of this essay is <a href="http://fiulawnews.com/gabilondo/?p=30">Gay Babies? Donn'e Moi a Break.</a><br /><br />Professor Gabilondo raises a question made possible only by technology--the consequences of being able to choose the sexual reorientation of a baby. In a world in which choices are already being made about the sex of infants to be conceived and brought to term, the question has a number of interesting eddies and ramifications.Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com2tag:blogger.com,1999:blog-3776712497194037444.post-83723366866768582442007-10-11T18:32:00.000-07:002007-10-11T20:02:46.494-07:00Marriage SymposiumLast fall, the Rutgers Law Review held a symposium, "Same-Sex Couples and the Exclusive Commitment," inspired by the New Jersey Supreme Court's decision, <em>Lewis v. Harris</em>, 908 A.2d 196, <a href="http://lawlibrary.rutgers.edu/courts/supreme/a-68-05.doc.html">Rutgers website</a> (N.J. 2006), which held that New Jersey must provide same sex couples with marriage or a legal equivalent. If you're keen to read about marriage issues, the symposium articles are available <a href="http://lawreview.newark.rutgers.edu/issues/v59n2.htm">here</a>.<br /><br />The articles present a range of opinion, but first one I looked at (George W. Dent, Jr., <a href="http://pegasus.rutgers.edu/%7Ereview/issues/PDF/059n2%20-%20Dent.pdf"><em>How Does Same-Sex Marriage Threaten <em>You</em>?</em></a>, 59 Rutgers L. Rev. 233) got my dander up. It took the position that same-sex marriage is a threat to society because heterosexual marriage is important for reproduction and child-rearing and, ultimately, social stability. Well, it was my bad luck for choosing that article: I'd thought it would finally explain to me how same-sex marriage threatens heterosexual marriages (the author didn't really mean to include me in the "you" of his title), but it didn't.<br /><br />I suppose we all choose what to believe based on our existing beliefs and assumptions. I believe the studies that say that kids do pretty well with gay or lesbian parents. On the other hand, Prof. Dent believes the people who say that those studies are flawed. He believes that "Children conceived by artificial reproductive technologies and reared apart from one or both biological parents 'hunger for an abiding paternal presence.'" (59 Rutgers L. Rev. 233, 242)<br /><br />In this instance, I have a lot of social scientists on my side. The American Psychological Association filed an amicus brief in <em>Lewis v. Harris</em> (as it has done in many cases, including the marriage equity cases here in Washington). The <a href="http://www.apa.org/psyclaw/lewis-v-harris.html">APA summarizes</a>:<blockquote>APA's brief provides the Court with the scientific and professional literature pertinent to the issues before the Court. * * * The brief addresses the extensive psychological literature that has found no difference between same-sex and heterosexual couples on characteristics such as levels of intimacy, feelings of commitment and desire for relationships * * * .<br /><br />Additionally, the brief addresses the large number of children raised by lesbians and gay men, both in same-sex couples and as single parents. APA takes the position that <span style="font-style: italic; font-weight: bold;">ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents </span>as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that <span style="font-weight: bold; font-style: italic;">lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents. </span><br /><br />Unlike past APA briefs supporting same-sex couples, this brief also addresses the social and psychological benefits – to both gay and heterosexual people – of marriage as an institution. The brief states that allowing same-sex couples to marry would give them access to the legal, social, and economic support that already facilitate and strengthen heterosexual marriages as well as end the antigay stigma imposed by the State through its same-sex marriage ban. Also addressed are <span style="font-weight: bold; font-style: italic;">invalidities in the research presented by opponents of same-sex marriage. </span><br /><br />In summary, the APA brief states that there is <span style="font-weight: bold; font-style: italic;">no scientific basis</span> for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.</blockquote>The full brief is available <a href="http://www.apa.org/psyclaw/lewis-v-harris.pdf">here</a>.<br /><br />This raises issues of cognitive authority. Why do I believe "my" experts while he believes his? He did have footnotes to support his statements, after all -- it's not that he made it all up. I'm not inclined to believe his experts because I'm committed to believing that I'm OK, my relationship is OK, and my relationship doesn't really jeopardize society. For his part, he's not likely to believe the experts cited in the APA's brief. Before believing them, he would probably counter that the APA (or at any rate the APA's leadership that agrees to amicus filings) has been taken over by benighted fools who can't judge research, or mischaracterize results to suit the GLBT community.<br /><br />What does it take to change one's beliefs, to be open to the long string of studies the APA cites rather than the books and articles Prof. Dent cites?<br /><br />The mayor of San Diego changed his mind, apparently because was able to generalize from his lesbian daughter to all the people excluded from the straights-only marriage law. <a href="http://www.signonsandiego.com/news/metro/20070920-9999-1n20sanders.html">Sanders changes mind on gay marriage: Mayor supports effort to overturn state ban</a>, Union-Tribune, Sept. 20, 2007.<br /><br />Not everyone will have an LGB or T family member -- but more and more people know that they know, respect, and like bent folks, and that makes them more open to changing their beliefs about social science, policy, and law.<br /><br />Speaking of developing public awareness:<br /><span style="font-weight: bold;font-size:130%;" ><br /></span><span style="font-weight: bold;font-size:130%;color:violet;" >Thanks to Outlaws for today's activities in celebration of National Coming Out Day!</span><span style="font-weight: bold;font-size:130%;" > </span> It was great to see people around the law school wearing badges proclaiming their support of LGBT rights. I didn't get a chance to pick up my sticker until late in the day, but I have it now: "I DO Support Marriage Equality."Mary Whisnerhttp://www.blogger.com/profile/06780343632178750011noreply@blogger.com1tag:blogger.com,1999:blog-3776712497194037444.post-38119513970198340762007-09-07T07:42:00.000-07:002007-09-07T09:15:44.791-07:00Bathroom NewsTwo items in this morning's <em>Seattle Times</em>:<ul><li><a href="http://seattletimes.nwsource.com/html/localnews/2003872953_transbath07m.html">Mall-restroom evictions raise transgender ire</a>, Seattle Times, Sept. 7, 2007. Two ftm transgendered people used a men's room at Pacific Place and were hauled out by security. They were in town for the <a href="http://www.transconference.org/">Gender Odyssey</a> (an FTM conference), and so about 40 others went to the mall as a group for a pee-in.</li><li>Ellen Goodman offers some sense on the Craig mess: <a href="http://seattletimes.nwsource.com/html/opinion/2003872513_goodman07.html">When it comes to Craig, we must separate the law from the lewd</a>, Seattle Times, Sept. 7, 2007. <blockquote>Yet the stings go on. Craig was only one of 40 arrested since May in Minneapolis. There were 45 arrested in the Atlanta airport this year. How many elsewhere? There must be saner ways to keep a restroom from becoming a meeting ground, better than using a dubious law that shames men into pleading guilty for the same reason Craig did: humiliation and the fear of exposure.</blockquote></li></ul>Mary Whisnerhttp://www.blogger.com/profile/06780343632178750011noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-73145637922209749152007-08-31T07:27:00.000-07:002007-08-31T07:53:29.166-07:00The Senator Craig Transcripts<div style="text-align: justify;">So, the transcripts of the post arrest interview of Senator Larry Craig have been released. See <a href="http://www.cnn.com/2007/POLITICS/08/30/craig.transcript/index.html">Transcript of Police Interview of Sen. Larry Craig</a>, CNN.com-Politics (Aug. 30, 2007). The entire tapes transcript is worth a read. They remind us that the promise of <a href="http://www.law.cornell.edu/supct/html/02-102.ZS.html">Lawrence v. Texas, 539 U.S. 558 (2003) </a>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:<br /><br /><p></p><blockquote><p> DK: Okay Urn, I just wanna start off with a your side of the story, okay. So, a</p><p> LC: So I go into the bathroom here as I normally do, I'm a commuter too here.</p><p> DK: Okay.</p><p> 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.</p><p> DK: Okay. I don't want to get into a pissing match here.</p><p> LC: We're not going to.</p></blockquote><a href="http://www.cnn.com/2007/POLITICS/08/30/craig.transcript/index.html">Transcript</a>, supra. <br /><br />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 <span style="font-style: italic;">Lawrence.</span> 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.<br /></div>Larry Catá Backerhttp://www.blogger.com/profile/06545101367530775497noreply@blogger.com2tag:blogger.com,1999:blog-3776712497194037444.post-63703707614130730282007-08-30T19:08:00.000-07:002007-08-30T19:20:59.885-07:00Same-Sex Marriage a Right Under Iowa ConstitutionA 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:<br /><br /><a href="http://data.lambdalegal.org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf">http://data.lambdalegal.org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf</a>Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com1tag:blogger.com,1999:blog-3776712497194037444.post-38752987280334872712007-08-29T21:53:00.000-07:002007-08-29T21:53:07.278-07:00“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:<blockquote>"I am not gay. I never have been gay."</blockquote><a href="http://www.idahostatesman.com/eyepiece/story/145182.html">Sen. Craig gives up four Senate committee seats; colleagues call for resignation</a>, Idaho Statesman, Aug. 29, 2007.<br /><br />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? <br /><br />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. <br /><br />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).<br /><br />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).Mary Whisnerhttp://www.blogger.com/profile/06780343632178750011noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-39558558152608774372007-08-07T14:25:00.000-07:002007-08-07T14:34:26.828-07:00Interested 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.<br /><br />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.<br /><br />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).Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-22977808143172208692007-08-04T12:31:00.000-07:002007-08-04T12:40:47.780-07:0010th Circuit Holds Oklahoma Adoption Invalidation Law UnconstitutionalIn 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."<br /><br />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 <em>laws</em> in making choice-of-law decisions (minimal) from the full faith and credit that must be given to sister-state <em>judgments</em> such as adoption decrees (exacting).<br /><br />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):<br /><br /><a href="http://www.ca10.uscourts.gov/opinions/06/06-6213.pdf">http://www.ca10.uscourts.gov/opinions/06/06-6213.pdf</a>Peter Nicolashttp://www.blogger.com/profile/00885824715562192462noreply@blogger.com0tag:blogger.com,1999:blog-3776712497194037444.post-63489307071819682382007-08-03T16:37:00.000-07:002007-08-03T17:00:52.462-07:00The Same-Sex Marriage Debate and Indian CountryI 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 <a href="http://tinyurl.com/ytxjsp">here</a>).<br /><br />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:<ul><li>After <em>Goodridge</em> two lesbians applied for (and were denied) a marriage license on the Cherokee reservation. Their appeal was dismissed on procedural grounds.</li><li>The Navajo Nation passed a Defense of Marriage Act.</li>The federal DOMA explicitly mentions Indian tribes as sovereigns that don't have to recognize marriages recognized by other states and tribes.</li><li>Drafts of the proposed constitutional amendment to preserve marriage as heterosexual only do not mention Indian tribes.</li></ul>Much of the article is speculative -- <span style="font-style:italic;">what if</span> a constitutional amendment DOMA passes? <span style="font-style:italic;">what if</span> there were a federal law <em>requiring</em> recognition of same-sex marriages, <span style="font-style:italic;">what if</span> 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.<br /><br />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?Mary Whisnerhttp://www.blogger.com/profile/06780343632178750011noreply@blogger.com3