On Academic Freedom

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: Academic Freedom and Me The complications of politics, culture, and academic freedom in one career.

The Indian Government and the Homosexuality Disease

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, The Times of India, Mumbai Oct. 21, 2008 at A-11 (Times/Nation Section) (quoting Solicitor General P.P. Malhotra).

Measure of Your Political Compass

For 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 political compass.

Washington bar supports same-sex marriage

I'd missed that our state bar came out in favor of same sex marriage -- until I saw this longish article: SR.com: Washington bar supports same-sex marriage, Spokesman Review (AP), Sept. 29, 2008.

WSBA's press release (Sept. 22, 2008) is here.

Intersectionality: African Americans, Religion and Marriage Rights for the LCBT Community in California

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 Jesse McKinley, Same Sex Marriage Ban is Tied to Obama Factor, New York Times, September 21, 2008, at A-18.. 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, Black Legislators Stall Marriage Amendment in Georgia, New York Times, March 3, 2004. The politics of inrtersecitonality will find a valuable laboratory in the coming weeks in California.

Dishonorable Passions - William N. Eskridge, Jr.

New in the Library:
Dishonorable Passions, by William N. Eskridge, Jr. (KF9328.S6 E84 2008 at Classified Stacks). The publisher's description:

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.

Cuba Authorizes Sex Change Operations

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 Cuba autoriza la operación de cambio de sexo, 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.

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.

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.

9th Circuit Deals a Blow to Military's Don't Ask, Don't Tell Policy

The opinion can be found at the following link:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DE9D0217A8A2A1758825744F007E23F3/$file/0635644.pdf?openelement

In brief, all three judges on the panel found the policy to be constitutionally infirm.

The plaintiff raised both substantive due process and equal protection claims.

The two judges writing in the majority held as follows:

(1) Substantive due process claim: The judges concluded that Lawrence v. Texas 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.

(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).

The third judge would go further, holding as follows:

(1) Substantive due process claim: He would apply strict scrutiny.

(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.

California Supreme Court on Same-Sex Marriage

The opinion can be found here:

http://www.courtinfo.ca.gov/opinions/documents/S147999.PDF

Here is my summary of the Court's holding:

(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:

(a) A fundamental right is involved (right to marry) under the due process and privacy clauses of the California constitution

(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.

(c) Fundamental right prong of California's equal protection clause

(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."

Michigan Supreme Court Decision on Domestic Partnership Benefits

In 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.

Read the decision here:

http://courts.michigan.gov/supremecourt/Clerk/11-07/133429/133429-Opinion.pdf

Mildred Loving has died

Mildred Loving, who along with her husband fought Virginia's anti-miscegenation statute all the way to the U.S. Supreme Court in Loving v. Virginia, has died.

The following statement, released by Mrs. Loving last year, on the 40th anniversary of Loving v. Virginia, tells you all you need to know about this remarkable woman:

Loving for All

By Mildred Loving

Prepared for Delivery on June 12, 2007,The 40th Anniversary of the Loving vs. Virginia Announcement

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.

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.

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?

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.

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.

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.”

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.

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.

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.

Legal Protections for Same Sexd Couples Under Israeli Law

In a decision that will likely be further reviewed, "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." Same Sex Couple Not Defined as Family, 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:

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.

Id. Stay tuned.

How to Take Things Out of Context

The 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:

http://www.nytimes.com/2008/04/27/magazine/27young-t.html?ei=5087&em=&en=9e7defb1e57bd2db&ex=1209528000&pagewanted=all

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:

http://www.christianpost.com/article/20080428/32146_The_New_Face_of_Gay_Marriage.htm

Seventh Circuit Anti-Gay T-shirt Case

In 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:

http://www.ca7.uscourts.gov/tmp/CR1FGL6H.pdf

Florida GSA suit dismissed

Hey everyone,

I was poking around some news stories and came across the following http://365gay.com/Newscon08/04/041008fla.htm.

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????

Oklahoma and its "Homosexual" Problem

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.

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:

Sally Kern (born 27 November 1946, Jonesboro, Arkansas) is an Oklahoma state legislator from Oklahoma City. Kern, a member of the Republican party, represents House District 84. A former teacher, she graduated from the University of Texas and East Texas State University. 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 terrorism or Islam - 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.

Wikepedia, Sally Kern. For the video of the comments, see Anti-gay stance hits YouTube: An Oklahoma lawmaker's anti-gay comments are attracting national attention.
For discussion of the lawmaker's reactions to exposure and her refusal to apologize for her remarks, see, e.g., Kern vows not to apologize for remarks against homosexuals; Oklahoma State Rep.: Gays “Biggest Threat” to U.S.; PlanetOut online news; JMBzine: Rep. Sally Kern responds to anti-gay hate speech.

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 Larry Catá Backer, Inventing a ‘Homosexual’ for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 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. See Larry Catá Backer, Religion and the Discursive Language of Same Sex Marriage, 30 Capital University Law Review 221 (2002).

An Interesting Blog Post By Jose Gabilondo

Our colleague at Florida International University, José Gabilondo, has just published some interesting thoughts on his new blog, appropriately titled, Professor Gabilondo's Blog. The title of this essay is Gay Babies? Donn'e Moi a Break.

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.

Marriage Symposium

Last fall, the Rutgers Law Review held a symposium, "Same-Sex Couples and the Exclusive Commitment," inspired by the New Jersey Supreme Court's decision, Lewis v. Harris, 908 A.2d 196, Rutgers website (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 here.

The articles present a range of opinion, but first one I looked at (George W. Dent, Jr., How Does Same-Sex Marriage Threaten You?, 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.

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)

In this instance, I have a lot of social scientists on my side. The American Psychological Association filed an amicus brief in Lewis v. Harris (as it has done in many cases, including the marriage equity cases here in Washington). The APA summarizes:

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 * * * .

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 ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that 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.

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 invalidities in the research presented by opponents of same-sex marriage.

In summary, the APA brief states that there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.

The full brief is available here.

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.

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?

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. Sanders changes mind on gay marriage: Mayor supports effort to overturn state ban, Union-Tribune, Sept. 20, 2007.

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.

Speaking of developing public awareness:

Thanks to Outlaws for today's activities in celebration of National Coming Out Day! 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."

Bathroom News

Two items in this morning's Seattle Times:

• Mall-restroom evictions raise transgender ire, 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 Gender Odyssey (an FTM conference), and so about 40 others went to the mall as a group for a pee-in.
• Ellen Goodman offers some sense on the Craig mess: When it comes to Craig, we must separate the law from the lewd, Seattle Times, Sept. 7, 2007.

  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.

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, CNN.com-Politics (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.

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:

http://data.lambdalegal.org/pdf/legal/varnum/varnum-d-08302007-ia-district.pdf

“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).

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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).

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):

http://www.ca10.uscourts.gov/opinions/06/06-6213.pdf

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?

British Government Compensates Discharged Gay Personnel

The British Government paid compensation to servicemembers who were discharged under their ban on gays in the military (which was repealed in 2000). According to the British Government, the compensation was for violating the privacy of servicemembers who were the targets of undercover investigations and entrapment operations. Read the story here:

http://www.pinknews.co.uk/news/articles/2005-5051.html

Quite a contrast from current US policy, which not only bans openly gay individuals from serving in the military, but also requires discharged gay servicemembers to repay the government for the tuition costs that the government paid on their behalf. See, e.g., Hensala v. Department of the Air Force, 343 F.3d 951 (9th Cir. 2003).

Data on Travelers' Sexual Orientation Part of Pact to Fight War on Terror

Under an agreement entered into between the United States and the European Union, airlines flying passengers from Europe to the United States are now required to share, among other things, data on the passengers' sexual orientation.

Read about the details here:

http://www.washingtonpost.com/wp-dyn/content/article/2007/07/27/AR2007072700159.html

Legal Challenge to Seattle Executive Order Recognizing Same-Sex Marriages

In 2004, Seattle's Mayor signed an executive order directing all City departments to recognize same-sex marriages entered into by its employees in other states or countries for the purpose of granting employee benefits. The executive order can be found here:

http://seattle.gov/mayor/executive_orders/cityrecognitionofvalidmarriagelicenses.pdf

In response, the California-based Pacific Justice Institute (http://www.pacificjustice.org/) filed suit, claiming that the Mayor's actions violated Washington's Defense of Marriage Act. In pertinent part, the act (R.C.W. 26.04.010) provides as follows:

"Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable."

The trial court rejected the challenge. PJI filed an appeal, but then put their appeal on hold pending the Washington Supreme Court's ruling on the constitutionality of Washington's Defense of Marriage Act. After the Washington Supreme Court upheld the constitutionality of the Act, PJI revived its appeal, which was recently argued before the Washington Court of Appeals.

You can find the Mayor's public defense of the executive order's constitutionality here: http://www.seattle.gov/mayor/issues/gay_qa.htm. The first part of his defense--that the Defense of Marriage Act is unconstitutional--has been rejected by the Washington Supreme Court (although the Washington Supreme Court did not reach its constitutionality under the Federal constitution, only the state one). But the second part of his defense would still seem to hold: that nothing in the Act purports to preempt a city law such as the executive order.

It seems like a no-brainer of a case, but I have not been able to get my hands on any briefs in the case. Any thoughts on the issue?

Negligent Infliction of Emotional Distress

Courts sometimes limit the category of bystanders who can recover for NIED to the victim's "family members." Is a same-sex domestic partner a "family member" in this context?

See Gain v. Carroll Mill Co., Inc., 114 Wash.2d 254, 787 P.2d 553 (1990) (dissent).

"There is another, but separate point which requires discussion. One of the fundamental issues in this type of case is determination of the class of persons whose peril causes the mental distress. In other words, what was the relationship of the plaintiff to the victim? That question should pose no issue here because the plaintiffs were father and brother of the decedent.
If recovery is allowed, this relationship is a protected one. 3 F. Harper, F. James & O. Gray, Torts § 18.4, at 690 (2d ed.1986).

Nonetheless, the majority causes substantial confusion for future cases. The majority haphazardly refers to the relationship as involving a “family member,” a “loved one,” a “relative,” and the “victim.” The majority provides no guidance as to the legal meaning of these imprecise and unnecessary categories. I assume that the majority's loose language will, someday, require us to decide whether a pet *267 is a family member or a loved one. There is a split of authority on that one. Roman v. Carroll, 127 Ariz. 398, 621 P.2d 307 (1980) holds no; Campbell v. Animal Quarantine Station, 63 Hawaii 557, 632 P.2d 1066 (1981) holds yes."

"Unintended Consequences" of Gay Marriage Bans

In the past several years, numerous state electorates have amended their state constitutions so as to prevent both their legislatures and their courts from extending the right to marry to same-sex couples. Some states have gone even further, banning not just marriage, but any other type of legal status that provides same-sex couples with some or all of the rights of marriage, such as civil unions or domestic partnerships. Consider, for example, this amendment to the Ohio Constitution, enacted in 2004:

"Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

Recently, a man who physically assaulted his live-in girlfriend and who was indicted for domestic violence invoked the second sentence of this amendment to argue that the state's domestic violence law was unconstitutional to the extent that it applied to people like himself and his girlfriend. His argument was that the statute—which applies not only if the victim is the accused's legal spouse but also if she is "living as a spouse"—violates the second sentence of the statute in that it created "a legal status...approximat[ing]...marriage."

In State v. Carswell, the Ohio Supreme Court rejected this argument, reasoning that the intent of the second sentence of the constitutional amendment was to prevent the state from circumventing the command of the first sentence by creating a status "similar to marriage," such as a civil union. The dissent, however, would rely on the plain text of the amendment to hold the statute unconstitutional, although recognizing this as an "unintended consequence" of the amendment. The opinions can be found at:

http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-Ohio-3723.pdf

Which of the opinions is more persuasive? Which of the opinions is a more favorable one from a gay rights perspective? Most people would say that the majority opinion is more favorable, but is it really? Isn't the dissent's opinion, which forces the broader electorate to deal with the "unintended consequences" of the constitutional amendment, more likely to cause voters in Ohio to reconsider and perhaps vote to repeal such an amendment? Indeed, concerns over such "unintended consequences" made Arizona the first state to reject such an amendment, with many of the "no" votes coming from senior citizens concerned that such an amendment would ban laws that allowed heterosexual senior citizens to enter into domestic partnerships (laws designed to allow them to get some of the benefits of marriage without having to give up some social security benefits).

State of Washington's Domestic Partnership Law

On July 23, 2007, at 8 a.m., gay and lesbian couples (along with couples in which one of the two people is 62 years of age or older) were allowed to register as domestic partners under a newly enacted law in Washington State. Details about the law—including the text of the law itself—can be found at the following website:

http://www.secstate.wa.gov/corps/domesticpartnerships/

The law provides a limited set of rights for couples who register as domestic partners, including:

• the right to visit one's partner in the hospital
• the right to make medical decisions for one's partner
• the right to receive information from a partner's health care providers about that partner's condition
• the right to administer the estate of a partner who dies without a will
• inheritance rights if one's partner dies without a will
• the right to be listed on a deceased partner's death certificate
• the right to authorize a partner's autopsy and to receive copies of a partner's autopsy reports and records
• the right to control the disposition of a deceased partner's remains (as well as the right to make anatomical gifts)
• the right to be buried as a couple
• the right to seek damages in a civil action for a partner's wrongful death

The proponents of the new law plan to add additional rights in future legislative sessions. What rights (and duties) do you think should be added next (keeping in mind that the state legislature can only address state, not federal, rights)?

As someone who specializes in evidence law, a right that I would like to see added is the right to prevent your domestic partner from being forced to testify against you in court, as well as the right to prevent one's former domestic partner from testifying about confidential communications made between one another when you were "partnered" (that word doesn't roll off the tongue quite like the word "married," does it?).

What else should be on the high priority list? If you could pick one right or duty added in the next legislative session, what would it be?

Welcome to Bent Law!

The purpose of this blog is to provide a forum to discuss legislation and judicial decisions that deal with the rights of sexual minorities, a subject that I teach at the University of Washington School of Law. While designed as a forum for faculty and students at the University of Washington School of Law and other law schools, practicing attorneys and non-attorneys who are interested in discussing these issues from a legal perspective are encouraged to participate as well.

Why the name "Bent" Law for this blog? There are a few reasons: (1) it is the opposite of the word "straight"; (2) it is British slang for "gay"; (3) I like it better than the word "queer," and I prefer it to alphabet soup terms like GLBTQ...; (4) it is the name of a song by Matchbox 20 that I am rather fond of; and (5) "Gay" Law was already taken by someone else!