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).

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

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."