Consolidated footnote file for DADT Book, Chapter 6


(notes in iUniverse printing start at 558).    

1 Warren Farrell, op. cit., p. 367. (see Chapter 3)

2 Robert Bork, op. cit., p. 117. Taken literally, Article II Section 2 gives Congress the authority to modify the appellate jurisdiction of the Supreme Court in both fact and law. See also Bork's "The Conservative Case for Amending the Constitution," The Weekly Standard, March 3, 1997, p. 21. Justice Ginsburg has pointed out that judges cannot choose the issues they want to debate, but common people can. Conservatives complain about "court-made" law which seems motivated by judicial notion of "equity"; generally, judges do not overturn statutes or make civil rulings without reference to specific statutes, constitutional clauses, and preceding cases.

2a Ch. 6 P 293 fn 2: Marbury v. Madison had established that the Supreme Court is the final interpreter of constitutional questions. So on constitutional matters, legislative choice can overrule only with constitutional amendment. Bork seems to be contradicting this, on the theory that majority determines morality. There is some controversy on how this applies to the states (as in the Hawaii gay marriage issue). It is clear that court opinions on statutory (rather constitutional) matters can be overridden by conventional legislative choices.

 3 HJ Res 121/SJ Res 45: Religious Equality Amendment proposed (Henry Hyde) would prohibit denial of federal or state benefits because of practice of religion; HJ 127: Religious Liberties Amendment (Istook) would permit student-composed prayer in public schools but forbid official prayers; HJ 184: Religious Freedom Amendment (Armey) is similar to Hyde but would "legitimate the direct public subsidy of religious activities and of pervasively religious institutions." David Ackerman and James Sayler, "School Prayer and Other Church-State Issues: Proposals to Amend the Constitution," Congressional Research Service, IB95080, Sep. 24, 1996. Note, also, the controversy over the Religious Freedom Restoration Act of 1994 (Jeffrey Rosen's "Anti-Antidisestablishmentarianism," The New Republic, Feb. 24, 1997). This law requires a "compelling interest" before a state can interfere with the practice of religion (as in zoning or employment discrimination), and ironically may have the effect of requiring deference to religious preferences on certain Free Speech situations (such as "fair use" privileges in federal copyright law) and therefore giving religion resources (at least indirectly, by exempting them from regulation that applies to everyone else) at the expense of other cultural and individual endeavors. Indeed, it seems to have overridden earlier Supreme Court rulings on separation of church and state and seems to comport with Judge Bork's notion that legislatures should be able to override judicial review. [Last minute news: On June 25, 1997, the Supreme Court rules the RFRA unconstitutional by a 6-3 vote, and appealed mainly to "separations of powers" arguments.] See fn 31 for related comment about charter schools.

3a Ch. 6 P 294 fn 3: Chronol- contains a chronology of major court cases and legislative initiatives affecting individual liberty, since mid 1996.

3b Another related issue will be publicly funded vouchers for poorer students to attend private schools, especially religious ones. Once private schools receive the benefit of public monies, then arguably (following the Boy Scout paradigm) they ought to be held to anti-discrimination laws. Conservatives see this as a hornet's nest. See Joe Loconte, "Paying the Piper: will vouchers undermine the mission of religious schools," Policy Review, Jan-Feb. 1999. Also see Nathan Lewin, "Are Vouchers Constitutional: yes, and here's how to design them," same issue. The relevant Supreme Court ruling is Agontini v. Felton (1997), holding that "to provide remedial education to low-income, special-needs children in religious schools neither advances religion nor creates 'excessive entanglement' between church and state.'"

4 Boaz, Libertarianism, op. cit., p. 125.

5 Actually, a local Democratic party caucus in the heavily gay Oak Lawn area of Dallas in 1980 adopted a balanced budget amendment resolution, in my presence. To further explore the difficulties with a Balanced Budget Amendment, see Paul Reidinger, "The Faltering Revolution," American Bar Association Journal, Feb. 1997, p. 56.

5a Ch. 6 P 294, fn 5: In The Quill Dec. 1994, Mark Herzendorf ("Let's Not Kid Ourselves: 94 Elections Do Not Guarantee a Libertarian Future") argues that the mathematics of the balanced budget amendment is itself deceptive because of macroeconomics (exaggerated business cycles) and "neutral deficits."

 6 David Kluge, The People's Guide to the United States Constitution (New York: Citadel, 1994), pp 150-155. Such a convention might be limited to the Balanced Budget Amendment, but then I could sue to get my changes to the Bill of Rights introduced! Maybe that would keep things tied up for a while. Most likely, the Supreme Court would allow only the issue that brought on the convention to be addressed. The practical consequence of this "threat" is that Congress should itself pass a Balanced Budget Amendment and send it to the states once a constitutional convention had really become credible. This is looking unlikely in 1997, so there is at least considerable statutory pressure on Congress to stay on track for a balanced budget by 2002. Some libertarians even insist that a federal budget should be balanced against prior year's revenues, not just expected revenues.

6a Ch. 6 P 294, fn 6: In fact, in the confirmation hearings in 1990 for Supreme Court Justice David Souter, Senator Heflin asked Souter whether a constitutional convention to consider a Balanced Budget Amendment could be limited to that one measure. Souter could not reassure the Senator that it could be so restricted; after all, he pointed out, the present-day Constitution arose from a convention called to revise the Articles of Confederation. "Whether we could expect such happy results another time ¾ is a question I think everybody (had) better face." (Kluge, op. cit., p. 154-155). Article V does not appear to implement a "time limit" of content restriction to a constitutional convention call, except restrictions on slave importation or "head tax" could not be lifted before 1808 and state representation could not be changed. In the 1970's, there were a few calls for constitutional conventions, such as to ban abortion.

Further research shows that the states' resolutions were passed before 1987. See also our Bill of Rights 2 White Paper.

During the controversy over the appointment of Justice John G. Roberts to the office of Chief Justice of the Supreme Court, and a memo that he apparently wrote on Dec. 11, 1981 contesting the idea that the Bill of Rights confers a “right to privacy,” Sen. Joseph Biden (D Del), supposedly a liberal, voted for the Hatch Amendment, which would have said that the Constitution does not secure a right to abortion. Cal Thomas, “Robert’s Rules,” The Washington Times, Sept. 18, 2005, p. B1.  

6b Ch 6 P.295 pr. 2. In an earlier draft, I had used the word "subpoena" instead of "interrogate." The "subpoena" invocation is a bit if hyperbole; but an inquiry of a civilian writer about a servicemember's statements sounds like a credible threat, when you consider internal DOD memos justifying the questioning of family members and "close friends." Possibly, a civilian writer with a public reputation for "stalking" servicemembers would himself become a target of military investigators who, even with flimsy evidence or innuendo, think they can uncover more homosexual statements or "conduct." (Generally, civilians do not have to answer questions from military investigators).

6c Ch. 6 P 295 pr 2: See also Nov. 1996, Marie Claire, "How Your Sex Life Can Land You in Jail," for an account of a man imprisoned in 1995 in Georgia for heterosexual sodomy when his ex-wife set him up.

A fair question concerns age of consent. Is it fair to charge an adult with "statutory rape" for consensual sex with a minor (or to charge a sales clerk of a crime when selling tobacco to the minor) if the minor can, at the same age and in the same state, be tried as an adult for some violent crimes? Is it fair to have one age for voting and another for drinking? You're either a grown-up or you're not. Let's be logical!

6d In 1996, Congress floated a bill that would have criminalized electronic communications of artwork that looked like child pornography, even if it wasn't created by using children. Remember, Oklahoma has seized the movie The Tin Drum for a gentle scene involving minors in bed (how about The Ice Storm?)

6e The reader will also want to look at John R. Vile, Constitutional Questions Surrounding the Constitutional Amending Process. (London: Praeger, 1993).  Vile provides a balanced discussion of the obscure scholarly writings on the process, especially the (second) "convention" method and the "runaway convention" scenario (while Vile doubts).

6f  In the squabble over gay marriage in 2003-2004, President Bush has proposed a constitutional amendment defining marriage as between one man and one woman. See this link for discussion, as well as my “Amendment 29” later in this chapter. There have been five attempted constitutional amendments in recent years: (1) Equal Rights, proposed in 1972 and expired in 1982; (2) criminalize flag burning, never gotten out of the Senate; (3) Balanced Budget, passed the House in 1995 and missed by one vote (of the 2/3 majority) in the Senate twice; (4)  Term Limits, failed to pass the House in both 1995 and 1997; (5) School Prayer, failed the House in 1998.

7 Frank Whitworth, of Colorado's Ground Zero News, relates to me that Norfolk, Virginia police, in the early 1970's, would bait "known homosexuals" with undercover lovers in order to press sodomy charges (as in Mixner, op. cit., pp 106-110).

7a. In Peralta, N.M., an unmarried (heterosexual) couple was served a summons for cohabitation by the sheriff (by mail) for violating a state law (30-10-2) against “unlawful cohabitation,” after a complaint involving a previous marriage. A number of states have cohabitation laws, and Arizona recently refused to repeal its law, as a lawmaker claimed it “a bulwark against the ‘decaying fabric of society.’”  See New York Times story by Jim Yardley, March 25, 2000, p. A7.  

7b North Dakota decided recently (in early 2003) to keep its cohabitation law, that affects unmarried opposite-sex couples but does not affect same-sex couples. 

8 In 1991, the Virginia attorney general agreed not to enforce this law, agreeing it was unconstitutional. But a military resident of Alexandria had tried to use it to close down a local gay bar.

9 Nicholas Riccardi, Jeff Leeds, "Megan's Law Calling Up Old, Minor Offenses," The Los Angeles Times, Feb. 24, 1997.

9a  Of course, since the middle of 2005, with the NBC Datelines “To Catch a Predator Series” (motivated by Internet predators trolling chatrooms) and the Mark Foley scandal, as well as numerous shows about sex offenders on Ophrah, Dr. Phil, and ABC 20/20 and Nightline, the public stigma has exploded. The New York Times has a major editorial (Dec. 30, 2006) on the shortsightedness of  exiling” registered sex offenders (after release from prison).  The David A. Kaye federal prosecution and long sentence (in Virginia) represents a particularly troubling case. There is more at  

10 David Frum, "The Courts, Gay Marriage, and the Popular Will," Sullivan, Same-Sex Marriage, op. cit., p. 360.

11 Timothy Lynch, "Dereliction of Duty: The Constitutional Record of President Clinton," Policy Analysis, No, 271, Cato Institute, March 31, 1997.

12 Irwin Schiff, The Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes (Las Vegas: Freedom, 1990/92). Schiff bases much of his constitutional reasoning on the premise that compliance with federal income tax laws is entirely voluntary.

13 Leslea Newman, Heather Has Two Mommies (Boston: Alyson, 1989). Also Michael Willhoite's Daddy's Roommate (Alyson, 1990). Both booklets try to teach mainstream children respect for peers who grow up in unconventional homes.

14 Michael Pallan, "Opium Made Easy: One Gardener's Encounter with the War on Drugs," Harpers, April 1997, p. 35. Maybe Harpers itself could be in jeopardy for running this 10,000 word piece!

15 Ronald Goldfard and Gail Ross, The Writer's Lawyer (New York: Times, 1989), p. 36. In the mid-1980's, it was sometimes possible to seize the entire stock of a bookstore for the sale of one book or magazine portraying child pornography.

15 a Ch. 6 P 296. Shame on the St. Paul, Mn police department and local television stations for posting pictures and names of prostitutes and johns when they haven't even been convicted of their victimless crimes!

15b On Jan. 4, 1998, the St. Paul Pioneer Press carried a story "Unsafe for Democracy" (by D. J. Tice) about censorship during World War I, as motivated by the Sedition Act of 1917. In Minnesota, it was enforced by a Commission for Public Safety, manned mostly business leaders. Persons' were harassed for criticizing government policy, especially conscription, to the point that their homes were searched.

Prof. William Eskridge at Georgetown University publishes a list of ways in which governments intentionally disfavor gays and lesbians. These include homosexual-only sodomy laws (6 states in late 1997), regulations that homosexuality be portrayed in public schools as a harmful lifestyle, lack or marriage rights, anti-adoption laws, and lack of protection for claims of same-sex sexual harassment. Contact him through

On April 29, 1998, PBS "Frontline" aired a pungent report on the DEA's enforcement tactics against marijuana growers. These include infrared scans of private homes from helicopters, and the use of snitches, as well as mandatory minimum sentences that fill our prisons with non-violent offenders.

On April 13, 2000, USA Today ran an editorial, “Unreasonable seizure,” the title of which suggests that the civil asset forfeitures, as practiced, violate the 4th Amendment. The House, with the sponsorship of Henry Hyde, has finally voted out a bill to curb the worst abuses. For example, a California air charter went under when the government seized a plane just because a passenger the charter owner had carried was arrested for drug trafficking (unbeknownst to him). The charter operator was never even charged with a crime. Almost half the property seized under forfeiture is kept. You can definitely lose your car if a passenger is carrying marijuana even though you don’t know it. 

15c  Laws prohibiting solicitation or importuning or even flirting in public places may be constitutional, but they can definitely be designed to be selectively enforced against gays and, in the past, to attempt to shut gay bars down (discussed in Chapter 3).  In Ashtabula, Ohio a man was jailed after a jogger complained to police about a verbal sexual advance.  Ohio law provides a jail sentence for unwelcome verbal homosexual approaches (source, Lavender, Minneapolis, May 4, 2000, p. 14, and LLDEF. The case is State of Ohio v. Thompson).  

15d   Even though the government now maintains that civilian security clearances are not to be affected by sexual orientation alone, there are troubling consequences for the State Department’s “asking” about illegal sex acts considering state sodomy laws. See Or the May 4, 2001 Washington Blade.

15e.  The conviction of Tom Green in Utah (in May 2001) for polygamy again raises troubling questions about intimate privacy and how the state actually proves that a common law plural marriage actually exists.

15f.   Another good question comes to mind in a few cases where gay adults have “adopted” their partners to get legal benefits.  Question: could they be prosecuted for “incest”?  Adoption will not help gay adult couples get around immigration laws, which require that the “child” have been adopted before age 16.

15g  (See 15c). There was a case in Dayton, Ohio recently where a man was entrapped and falsely arrested for an innocuous conversation at a urinal in a public park restroom when he apparently did not even intend to solicit sex. After a plea bargain, he was placed on probation and labeled a sex offender. See

Impact Weekly, July 2002
322 S Patterson Blvd, Dayton, OH
A walk in the park
How a conversation about a red bird and the weather got (a
Dayton man) labeled
as a sexual offender
By Carrie Inmon

16 Robert Corn-Reves: "New-Age Comstockery: Exon vs. the Internet," Cato Policy Bulletin, July 28, 1995.

Richard Sincere, "Act Deserved to Be Struck Down," Alexandria, Virginia Metro Herald, June 21, 1996 and The Quill, Aug. 1996. "Obscenity" refers to a work which, taken as a whole, appeals to prurient interest. Under current constitutional law, obscene communications between consenting adults can be prohibited. "Indecency" refers to a sexually explicit passage or word, taken out of context. Adults have a First Amendment right to share indecent speech as long as it is kept out of the sight of children or unwilling recipients. Supporters of CDA have sometimes maintained that "indecent" refers only to gratuitous depictions of sexual or excretory acts. The appellate court, however, correctly noted that Congress did not explicitly define the term "indecent" in the statutes but allowed the influence of community standards. [Theoretically, this observation applies also to obscenity, about which there is less controversy.] Since the Internet is omnipresent ("pervasive") and unsupervised, there is a possibility that all "abnormal" sexual terms, even "gay" and "lesbian," could be excluded according to the strictest possible community standards. It is not completely clear that service providers would be totally free or civil and criminal liability for infractions by customers (there is already such a case involving copyright). Even so, some will argue that protecting children is necessary even if effective methods to isolate adult speech do not exist. Cost-effective technology to allow a self-publisher to validate (by credit card or list service) who can receive his work is just now coming into existence, but it might not be effective in chat rooms or discussion boards. [Furthermore, it probably could be bypassed even on web sites by clever minors, and there would eventually develop demands to ban all "indecent" postings regardless of protections.] The Clinton Justice Department promises it intends to prosecute only the most egregious offenders. But there would be nothing to stop a district attorney in Mississippi from prosecuting me for providing this book on-line because of a few isolated passages! I heard (from the "three-minute line") the Supreme Court hear arguments for the CDA in March, 1997, and it is certainly a pivotal case regarding the open broadcast of unconventional ideas and values. [Can there be a federal definition of "indecent" that removes community standards?] [Last minute news: On June 26, 1997, the Supreme Court ruled, by a 7-2 vote, that the CDA is unconstitutional.]

16a Ch. 6 P 297, after fn 16 (D)On June 26, 1997 the Supreme Court struck down the Communications Decency Act. The Court unanimously held that the "display" provisions would interfere with constitutionally protected exchanges between adults and that online postings (compared to broadcast) are not intrusive enough to violate a minor's incompetence at consent. Justice Stevens characterized the "town crier" phenomenon (this book??) as the substance of free speech. Individual speech, more than anything else, enables the political participation by individuals on their own, regardless of affiliation with "political powerless" (or powerful) groups.

Attorneys at the Electronic Frontier Foundation tell me that the Court's reasoning is quite simple. That is, consenting adults have a constitutional first amendment right to exchange "indecent" material (but not "obscene" material) and the CDA provided no practical way to prevent access by minors without shutting down access by adults. Therefore, it is "overbroad" and unconstitutional. I would interpret the Supreme Court Opinion as reinforcing the Appeals Court in saying that the term "indecent" was unconstitutionally vague and open, for practical purposes, to all the problems of "community standards" that obscenity would be; others have argued with me that community standards do not apply to "indecency."

16b In October 1998, Congress passed and President Clinton signed the Child Online Protection Act (COPA). This law essentially replaced "indecent" (including George Carlin’s “seven bad words”) in the CDA with "harmful to minors," which essentially means "obscene with respect to minors" (according to a three-pronged definition that arguably allows a community standards paradigm). Details are covered at this site at my colpa file and at the web site of Electronic Frontier Foundation, of which I am a member. This site (until 7/31/2005 it was which supports my two books was, I felt, at definite risk because it is impossible to present difficult and controversial social issues (like gays in the military) without some adult subject matter and materials that some persons could consider "harmful to minors." Therefore I consulted with EFF and we decided that I would become a sub-plaintiff (along with four other sites) under sponsorship of EFF, with the constitutional challenge supervised by the ACLU (Ann Beeson). I got a crash course in preparing and transmitting (email, ftp, Federal Express) legal documents (my affidavit) quickly, although I did not personally testify in court. On November 20, 1998 a Temporary Restraining Order (TRO) was obtained. In preparing its arguments, the ACLU paid particular attention to the likely effect of COPA on gay-related websites and the lack of trust it had that the government might not in the future target gay sites for prosecution; the ACLU mentioned the 1993 "Don't Ask Don't Tell" law regarding gays in the military, and the 1996 Defense of Marriage Act (DOMA) as examples. On February 1, 1999 Judge Lowell Reed of the Eastern District of Pennsylvania issued a Preliminary Injunction, which the Justice Department appealed on April 1. Judge Reed's opinion begins with a discussion of "who owns the press" very much in the spirit of Chapter 5 of my second (Our Fundamental Rights) book. On June 22, 2000, the Third Circuit upheld Judge Reed’s injunction, noting that the topology of the Internet does not allow speakers to limit the reach of their messages to specific geographical areas according to community standards.

Recently (August 1999) I spent a lot of time at an Internet station in a crowded gay bar (admission only to age 21 and over, for drinking) surfing the raunchiest for porn sites that I could find (sado-masochism, body shaving, explicit sex, etc.) Practically all such sites offered one to five free photos (not too "interesting") and then required adult access ID (and often membership paid by credit card) to enter the rest of the site.  Customers will tend to surf through many of these sites and browse many free teasers within a short time period, without actually entering any of the sites for paid materials.  So COPA would tend to discourage rapid (that is, by requiring separate adult verification by every different site offering a teaser) surfing by adults, even in environments where presumably everyone is over 18 or 21, and probably force smaller adult-oriented sites out of business (and favor the larger ones). They were readily found by major search engines, mixed with non-pornographic sites (which greatly outnumbered them). The DOJ has insisted that it is these "teasers" that COPA was designed to prohibit, but a literal reading of the law does not convince one that this is all that is prohibited. (But a law limited to "pictures" and "sound" is much more likely to be upheld.) I found one site, with text only but no pictures, giving a fictitious third-person account of a “straight” man experiencing the “shameful pleasure” of final desecration and humiliation as he is chest-shaved, castrated and emasculated, and one discussion board on passive- and self-mutilation (some of it very graphic and specific – “penectomy,” outside of the medical context of transgendered issues and sexual reassignment surgery, was a search keyword). This board conveyed the sentiment that some men sought relief from the “responsibility” for “initiative” associated with possessing male genitalia.

17 Paul Wallich, "Cracking the U.S. Code," Scientific American, April 1997, p. 42.

18 ABC "Turning Point," Nov. 14, 1996. I once underwent a voir dire for a child molestation case in Dallas and was asked if I would believe the testimony of a small child in court testifying against parents.

19 Although the delays at some airports after the 1996 TWA explosion prompted one Seattle passenger to complain of "Clinton's body cavity searches!"

20 Steven King, The Stand, (New York: Signet, 1990), p. 779.

21 Jeffrey Rosen, "Orginalist Sin," New Republic, May 5, 1997, covers the concepts of textualism and originalism while reviewing these two books: Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), and Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1997). Rosen points out many contradictions that occur in the "conservative" judiciary, and these usually result from a desire of a justice to shore up "tradition." One interesting area is Scalia's objection to the invention of substantive due process and various new "rights" which apparently don't come from "original" interpretations of the Constitution's text. Rosen also points out that substantive due process has sometimes been interpreted as prohibiting redistribution of wealth but not as restraint from enforcing standards of general "morals."

In the June 23, 1997 New Republic, George Feltcher ("Unsound Constitution") argues that originalism can rationalize a citizen's (that is, McVeigh's [#1]) taking power back from the government with his own firearms. The original republic, Fletcher claims, was grounded in "contradiction" inherent in a stratified society that still condoned slavery.

22 There is also a similar recent decision, Planned Parenthood v. Casey , 505 U.S. 833 (1992).

23 Vincent Samar, The Right to Privacy: Gays, Lesbians, and the Constitution (Philadelphia: Temple University, 1991), p. 24. Without a "penumbra," a Bill of Rights might defeat its own purpose by circumscribing rights. Justice Ginsburg has pointed out that other rights, such as suffrage, spelled out in various other articles and amendments are also fundamental rights.

24 Marian Faux, Roe v. Wade (New York, Mentor, 1989). The plaintiff, in 1994, announced publicly that she now opposes abortion. Roe v Wade has been supplemented by Casey v. Planned Parenthood, with a focus on the concept of fetal viability.

24a Katha Pollitt, “Jesus to the Rescue?” The Nation, Feb. 7, 2005, p. 10, discussed Jim Wallis’s book God’s Politics: Why the Right Gets It Wrong and the Left Doesn’t Get It (Harper Collins, 2005) points out, “the Bible doesn’t mention abortion even once. Wa;;is cites the text antichoicers commonly use to justify their position. ‘For it was you who forme dmy inward parts; you knit me together in my mother’s womb.’ Say what? Nothing about abortion there, pro or con.” 

24b  Conservatives have pointed out (in the summer of 2005) that technology may make fetal viability a reality so early in pregnancy (even in the first few weeks) that Roe could effectively be nullified.

25 Harold Spaeth and Conrad Smith, The Constitution of the United States (New York: Harper Perennial, 1991), pp 133-137.

26 Linda R. Monk, The Bill of Rights, A User's Guide (Close Up, 1991), p. 215.

27 Richard Posner and Katharine Silbaugh, A Guide to America's Sex Laws (University of Chicago Press, 1996), p. 65.

28 Posner, op. cit., p. 71.

29 Dave Edmondson, "Run Down by Clinton's HealthCare Express," The Quill, Aug., 1994. Also visit 

29a The police harassment of gay bars in Dallas, TX stopped around early 1981 when a computer operator was actually acquitted in a fair bench trial. The harassment did not resume during the AIDS crisis as it erupted around 1983, even though the “Dallas Doctors Againsy AIDS” was very vocal in the media.

30 Bowers v. Hardwick, 760 F. 2d 1202 (11th Cir., 1985), note 1, p. 199, June 30, 1986. For detailed analysis of the opinions, see

Harvard Law Review, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1989), pp 9-43.

30a The notion of "fundamental rights" is largely derived from the "substantive due process" clause of the ("incorporating") 14th Amendment, and to a lesser extent, from the 5th and 9th Amendments. See footnote file for Our Fundamental Rights and Bill of Rights 2. Note that the difficulty of enforcing laws that seem to violate "privacy rights" did not seem to enter very much into the Court's deliberation, as it was quite willing to allow laws with seem to equate "status" and "conduct," a problem that arises with the propensity and rebuttable presumption device of the military's "don't ask, don't tell."

30b. On June 8, 2000 the Texas 14th Circuit Court of Appeals struck down the state’s homosexual-only sodomy law, originally challenged in Baker v. Wade. This case is Lawrence and Garner v. State of Texas.  See,

The Supreme Court agreed in December 2002 to hear the homosexual-only Texas sodomy law. The CNN law story is at  The case relates to the arrest of John Geddes Lawrence and Tyron Garner in their own bedroom in 1998. The men pleaded no contest to misdemeanor charges and paid a $200 fine but they maintain that in some states they could be required to register as sex offenders. Police had arrested them after entering their apartment in response to a call about an intruder.

 30c.  The Minnesota Civil Liberties Union (MCLU) filed suit (naming the Minnesota governor Jesse Ventura and Attorney General Mike Hatch as defendants) in state court challenging the constitutionality of the Minnesota sodomy law, which provides a $3000 fine and a year in prison. The Minnesota law applies to both same-sex and opposite-sex acts. Named as having standing are a lesbian attorney who could be evicted from her home, and a married teacher who could lose his teaching license, a quadriplegic married heterosexual man, and law students who say that their law license applications are jeopardized by some questions on the license involving illegal sex acts.  One problem again is that the sodomy law is almost never enforced as a criminal statutes, but that (as in the military) the “propensity” to violate it can have consequences. The news story is “MCLU suing to abolish state’s anti-sodomy law” in the Minneapolis Star Tribune, June 23, 2000, by Margaret Zack and Rosalind Bentley.

District court juge Delila Pierce ruled that the Minnesota sodomy law is unconstitutional on May 21, 2001, although the ruling applies only to the plaintiffs. The religious right, as usual, complained. Former state senator Wayne Olhoft said, “the writers of the Constitution would be aghast that privacy meant protection of sodomy,” and the Minnesota Family Council argued that the privacy arguments could be used to allow “incest, illicit drug use, prostitution, and other illegal acts.”

30d  New York State, in reforming its state sexual assault statutes, is eliminating its sodomy and deviant sexual intercourse statutes.  From the Empire State Pride Agenda Press Release of June 23, 2000.

30e On July 6, 2000, the Louisiana Supreme Court upheld the state’s sodomy law (both heterosexual and homosexual) by a 5-2 vote. Justice Chet Taylor wrote: “Simply put, commission of what the Legislature determines as an immoral act, even if consensual and private, is an injury against society itself.”  Get real!  Taylor went on to comment that state constitutional guarantees or privacy and liberty did not matter here!  So we still have to fight this!  

30f  The American Family Associations sent around an email to the Republican National Convention demanding the arrest of (Arizona) Rep. Jim Kolbe under the “presumption” that he violates the state’s sodomy law. Of course, the “presumption” concept technically does not apply to criminal prosecution even in the military, just for administrative discharges. But we heard this kind of thing in Texas in the 1980’s during the AIDS crisis (that cohabitation of two men could be regarded as a violation of the state’s homosexual sodomy law—and unlikely to stand up in court). 

30g  Sodomy as such was not a statutory crime in Europe until 1533 under Henry VIII, when the crime of “buggery” incorporated both bestiality and sodomy. The first sodomy law in the American colonies apparently was enacted in Virginia in 1661. 

30h  Arizona, a state known for a strong libertarian element in its Republican party,  repealed its sodomy law and also some laws against cohabitation, as signed by the governor May 11, 2001.  See The Washington Blade, May 11, 2001.  One significance is that unmarried gay couples on one income may sometimes be able to get assistance.  The religious right has threatened to force a referendum.  But Republican Steve May reports that his own district supported repeal by a margin of 3 to 1.  The high age of consent (18) seems unchanged. 

30i  One resource to keep track of the shrinking list of states with active sodomy laws is

30j. In July 2002 Lambda Legal Defense and Education Fund announced that it would challenge the Texas homosexual-only sodomy law in the Supreme Court, largely on equal protection grounds, in a new attempt to overturn Bowers v. Hardwick. The specific case is Lawrence and Garner v. Texas. The two men were arrested in September 1998 when police came into their apartment on a false report of an armed intruder, and both spent a night in jail before paying the fine. The Texas state courts upheld the conviction on the theory that the state may uphold “moral standards” or social standards. One reader supplies the following quote from the recent state ruling invalidating the Arkansas sodomy law:

Nine states have invalidated sodomy laws by judicial decision: Georgia
in Powell v. State,
     510 S.E.2d 18 (1998); Kentucky in Commonwealth v. Wasson, 842
S.W.2d 487 (Ky.1992);
     Maryland in Williams v, State, 1998 Extra LEXIS 260, Baltimore City
Circuit Court,
     (January 14, 1999)(trial court holding that sodomy statute did not
apply to consensual, non-
     commercial, private sexual behavior. The decision was not appealed
by the State);
     Massachusetts in Gay and Lesbian Advocates & Defenders v. Attorney
General, 436 Mass.
     132, 763 N.E.2d 38 (2002); Minnesota in Doe, et al. v. Ventura, et
al., 2001 WL 543734, No. 01-489 (Dist. Ct. Hennepin County May 15,
2001)(neither the State of Minnesota nor
     Attorney General Mike Hatch appealed the lower court decision);
Montana in Gryczan v. Montana, 942 P.2d 112 (1997); New York in People v. Onofre, 415
N.E.2d 936 (N.Y.1980),cert. denied, 451 U.S. 987 (1981); Pennsylvania in
Commonwealth v. Bonadio, 415 A.2d 47 (Pa .1980) (the state legislature
later repealed the law in 1995); Tennessee in Campbell v. Sundquist, 926
S.W.2d 250 (Tenn.Ct.App.1996).

     Six states, including
Arkansas, maintain "same-sex" sodomy
Arkansas, Ark.Code
     Ann.  5-14-122 (Repl.1997); Kansas, Kan. Stat. Ann. 21-3505 (1995);
Michigan, Mich.
     Comp. Laws Ann. 750.158, .338(a)-(b)(1991); Missouri, Mo Rev. Stat.
566.090 (1999);
     Oklahoma, Okla. Stat tit. 21 886(1983);
Texas, Tex. Penal Code Ann.
21.06 (1989).
     Nine states and
Puerto Rico maintain statutes prohibiting same-sex
and opposite-sex
Alabama-"Sexual Misconduct" Ala.Code 1975, 13A-6- 65(a)(3)
("Sodomy" is
     defined what would be rape, except for the parties. Ala.Code 1975,
13A-6-63 & -64);
Florida--Fla. Code. 800.02 (1993); Idaho-Idaho Code  18-6605
(Supp.2001); Louisiana-
     La. Rev. Stat. Ann. 14:89 (1986); Mississippi-Miss. Code Ann.
97-29-59 (1972); North
     Carolina--N.C. Gen.Stat. S 14-177 (1994);
Puerto Rico-- Penal Code
sections 99 and 103 (33 L.P.R.A. 4061 and 4065);
--S.C.Code Ann. 16-15-120 (1985); Utah-Utah Code Ann. 76- 5-403
(1995); Virginia-Va. Code Ann.  18.2-361 (1994).

30k The US Supreme Court heard oral arguments on Lawrence v. Texas on Wed. March 26, 2003. Tyron Garner and Paul Smith argued for the plaintiffs. Rehnquist and Scalia again brought up the due process questions (fundamental rights and “deep rootedness” in procreation, marriage, etc.)  The plaintiffs brought the fundamental rights question back to privacy in a non-commercial, consensual setting (as so insistently argued in DADT, although the public expression of homosexual identity has become an issue in the workplace and even maybe the military). O’Connor asked whether the equal protection arguments would be satisfied by extending the law in Texas to heterosexuals (as in Georgia, Bowers v. Hardwick).  Rosenthal, arguing for the state, put up the usual arguments about procreation and marriage, so well outlined in “thought experiments” by Andrew Sullivan in The New Republic “We’re all sodomists now: Unnatural Law,” March 24, 2003.

I responded this to Andrew:

Andrew Sullivan effectively, if intellectually, walks us through most of the arguments concerning the "moral" purpose of sexuality, starting with procreation and then support for the marriage institution, with the end purpose of justifying the status of lesbians and gay men as second class citizens.

Logically, homosexuals either have equal social and legal status, or they don't.  Of course, in practice we do not, and the real question is, why is it important to mainstream (especially so-called "socially conservative" culture) to maintain our inferior status?

Power is often related to the perception that resources for a culture are finite and somewhat of a zero-sum game. The past thirty-plus years, essentially since Stonewall, have seen the growth of individualism and the idea that every person should define his or her own course in life, regardless of family attachments. We have encouraged this paradigm because we believed that can afford it.

Economic hard-times, terrorism and war remind us of the idea that there are limits, that freedom cannot be taken for granted; the disparate sharing of burdens and sacrifices becomes a moral imperative. That is what makes the idea that gays must not serve in the military, marry, or parent children particularly offensive.

Social conservatives see traditional marriage as providing a morally appropriate granularity for individualism---the traditional family with its "tender trap" and all of its lineage and institutions. Family is supposed to provide a way for persons to share unchosen responsibilities without a real sense of sacrifice because the duty to family is tied to "natural" sexuality. Where social conservatism seems to break down into contradictions (again, in a "thought experiment") is in the proper role of family for that majority of individuals who cannot distinguish themselves constructively by their own individual efforts in a competitive or "meritocratic" society. Remember that George Gilder ("Men and Marriage," 1986) used to argue that family provides the "average Joe" a socially legitimate key to sense of self. But if the purpose of family (and, particularly, women) is to tame men, then why do men really need individual achievement and recognition? Socialists love this.

So more advanced forms of conservatism try to solve this problem by describing freedom as a stepwise iteration among individual merit or competition, family commitment, faith, and somewhat closed community. The Mormon Church comes to mind. In a secular example, the "Smallville" program intrigues me, because teenage superman Clark
Kent cannot enjoy his abilities without being human and moral first, and then putting his adoptive family first. And most of us do not have the abilities of a Clark Kent (let alone the money or inheritance of Lex Luthor).

So, to have a chance to win the final argument about sodomy laws on a psychological (rather than legal or constitutional) battlefield, we would need to convince ourselves that we can have our cake and eat it too: that people can take the responsibility for others that must go with freedom and still maintain fidelity to their own emotional makeup and intricate systems of what they value in others---even when that sexual value system shows up visually in break dancing.  For what offends most about sodomy laws is that they attempt to assign preferences or stigma according to the deepest of emotional values, even if these values are perceived as individual choices.

Then, to an article by Sen. Allen Simpson in The Wall Street Journal, March 26, 2003 I responded to the WSJ

Senator Simpson admirably lays out a simple argument for getting rid of sodomy laws and ending discrimination against homosexuals: "No special preferences, but no special penalties."

However, many people still see homosexuality as a character disorder and, beyond religious belief, see homosexuality as a way to escape responsibility for and commitment to others. It is important to understand why some people still feel this way. It gets to be a complicated topic, but one place to start is to look at the circular reasoning offered against allowing gay marriage, gay adoptions, and even the service of open gays in the military.

But, given our war on terror (and on rogue states like Iraq) and cultural conflict with a major part of the Islamic world, it is interesting to compare the hostility of that world towards our open and supposedly self-indulgent culture and the hostility within our country of some people to not just gays as people but to what they see as narcissistic and juvenile "gay values." Of course, one notion of modern individualism (gay or not) is repudiation of old-fashioned protective patriarchal culture. As Denish D'Souza has written, individual freedom does need individual authentication. Sometimes it even requires disparate sacrifice.

Justice Scalia asked if rape laws were unconstitutional under equal protection if they applied only to opposite-sex acts. Perhaps not since they pass a rational basis test, but common sense says that they should apply to same-sex cases, and in many states they do (or are covered by general laws concerning assault, which may have less severe penalties, however).

But Justice Rehnquist asked one real corker of a question:

"If you were to win this case," said Chief Justice Rehnquist, "how could a state prohibit homosexuals from teaching kindergarten?" Such a prohibition, Smith replied, would also have to pass the rational basis test.

 ( “US Supreme Court weights landmark case,” Ann Rostow, March 26, 2003.)  This comment shows that the military ban does indeed set an example in other areas like teaching and that sodomy laws could be used to try to ban gays from teaching or getting teacher’s licenses, at least in younger grades.

On April 21, 2003, Sen. Rick Santorum (R-PA) made the following comment in an Associated Press interview: “We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold -- Griswold was the contraceptive case -- and abortion. And now we're just extending it out. And the further you extend it out, the more you -- this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.

”Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality “

I presented the whole quote here to present the boldness of Santorum’s arguments. What he claims is not so much that homosexual acts affect the traditional family, but it is the freedom to commit them that affects the family. That is, it is an argument of encapsulation. It sounds a bit like word salad, but what he probably means is more something like this: Homosexual culture (especially young male homosexual culture) competes with the family and undermines a major source of identity for average men who have no other access to individuality except through the nuclear family. That’s the George Gilder argument. But, he is denying the opportunity for men to account for themselves, at least beyond a certain psychological realm.  To answer his contention that allowing sodomy allows anything, I would make this distinction: homosexuality is deeply tied to what one values in other people, in a way that the other behaviors that he mentions is not.

More is at

30l Here is a list of materials from the Supreme Court submission and oral argument briefs:


Sexual Orientation, Equal Protection, Fourteenth Amendment, Privacy


1.      Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law - which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples - violate the Fourteenth Amendment guarantee of equal protection of the laws?

2.      Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3.      Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?


1.      Texas Court of Appeals - 14th District, Filed: March 15, 2001

2.      United States Supreme Court, Cert. Granted: December 2, 2002


1.      Docket Sheet From the U.S. Supreme Court.

2.      Northwestern University - Medill School of Journalism: On the Docket



1.      Petitioners (Petition) [PDF]

2.      Respondent - Opposition (Petition) [PDF]

3.      Petitioners - Reply (Petition) [PDF]

4.      Petitioners (Merits) [PDF]

5.      Respondent (Merits) [PDF]

6.      Petitioners - Reply (Merits) [PDF]

Amicus - Petitioners

7.      Stonewall Law Association, et al. (Petition) [PDF]

8.      Alliance of Baptists, et al. (Merits) [PDF]

9.      American Bar Association (Merits) [PDF]

10.  American Civil Liberties Union and ACLU of Texas (Merits) [PDF]

11.  American Psychological Association, et al. (Merits) [PDF]

12.  American Public Health Association, et al. (Merits) [PDF]

13.  Cato Institute (Merits) [PDF]

14.  Constitutional Law Professors, Bruce Ackerman, et al. (Merits) [PDF]

15.  Human Rights Campaign, et al. (Merits) [PDF]

16.  Institute for Justice (Merits) [PDF]

17.  Log Cabin Republicans and Liberty Education Reform (Merits) [PDF]

18.  National Lesbian and Gay Law Association, et al. (Merits) [PDF]

19.  National Organization for Women (NOW) Legal Defense and Education Fund (Merits) [PDF]

20.  Professors of History, George Chauncey, et al. (Merits) [PDF]

21.  Mary Robinson, Amnesty International, et al. (Merits) [PDF]

22.  Republican Unity Coalition and Alan K. Simpson (Merits) [PDF]

23.  Stonewall Law Association, et al. (Merits) [PDF]

Amicus - Respondent

24.  Pro Family Law Center (Petition) [PDF]

25.  American Center for Law and Justice (Merits) [PDF]

26.  American Family Association, Inc., et al. (Merits) [PDF]

27.  Center for Arizona Policy and Pro-Family Network (Merits) [PDF]

28.  Center for Law and Justice International (Merits) [PDF]

29.  Center for the Original Intent of the Constitution (Merits) [PDF]

30.  Concerned Women for America (Merits) [PDF]

31.  Family Research Council, et al. (Merits) [PDF]

32.  Liberty Counsel (Merits) [PDF]

33.  Public Advocate of the United States, et al. (Merits) [PDF]

34.  States of Alabama, South Carolina, and Utah (Merits) [PDF]

35.  Texas Eagle Forum, et al. (Merits) [PDF]

36.  Texas Legislators, et al. (Merits) [PDF]

37.  Texas Physicians Resource Council, et al. (Merits) [PDF]


Excerpts from oral arguments:

MR. SMITH The one thing, that I submit the court, the state should
not be able to come in to say is: We are going to permit ourselves,
the majority of people in our society, full and free rein to make
these decisions for ourselves, but there's one minority of people
[who] don't get that decision and the only reason we're going to give
you is we want it that way. We want them to be unequal in their
choices and their freedoms, because we think we should have the right
to commit adultery, to commit fornication, to commit sodomy. And the
state should have no basis for intruding into our lives, but we don't
want those people over there to have the same right.

JUSTICE ANTONIN SCALIA I mean you can put it that way, but society
always - in a lot of its lives - makes these moral judgments. You can
make it sound very puritanical, the, you know, the laws against
bigamy. I mean, who are you to tell me that I can't have more than
one wife, you blue-nose bigot?

Sure, you can make it sound that way, but these are laws dealing with
public morality. They've always been on the book; nobody has ever
told them they're unconstitutional simply because there are moral
perceptions behind them. Why is this different from bigamy?

MR. SMITH First of all, the first law that's appeared on the books in
the states of this country that singles out only same-sex sodomy
appeared in the 60's and the 70's, and it did not - and it does not -
go way back, this kind of discrimination.

Now, bigamy involves protection of an institution that the state
creates for its own purposes, and there are all sorts of potential
justifications about the need to protect the institution of marriage
that are different in kind from the justifications that could be
offered here involving merely a criminal statute that says we're
going to regulate these people's behaviors, we include a criminal law
which is where the most heightened form of people protection analysis
ought to apply.

This case is very much like McLaughlin, Your Honor, where you have a
statute that said, We're going to give a specially heightened penalty
to cohabitation, but only when it involves a white person with a
black person. That interracial cohabitation is different, and the
state there made the argument, We're merely regulating a particular
form of conduct, and that's a different form of conduct than
interracial cohabitation. And this court very clearly said, No,
you're classifying people; and that classification has to be

And this court at many times said a merely disapproval of one group
of people, whether it be the hippy communes in
Moreno or the mentally
retarded in
Cleburne, or indeed gay people.

CHIEF JUSTICE WILLIAM H. REHNQUIST But all, almost all, laws are
based on disapproval of either some people or some sort of conduct.
That's people legislate.

MR. SMITH And what this court does under the equal-protection clause
is standard as a bulwark against arbitrary government . . .

CHIEF JUSTICE REHNQUIST If you prevail, Mr. Smith, and this law is
struck down, do you think that would also mean that a state could not
prefer heterosexuals to homosexuals to teach kindergarten?

MR. SMITH I think the issue of preference in the educational context
would involve very different criteria, Your Honor, very different
considerations. The state would have to come in with some sort of a

JUSTICE SCALIA A justification is the same that's alluded to here,
disapproval of homosexuality.

MR. SMITH Well, I think it would be highly problematic, such a
custody case. JUSTICE SCALIA Yes, it would?

MR. SMITH If that were the only justification that could be offered,
there was no some showing that there would be any more concrete harm
to the children in the school. . . .

JUSTICE RUTH BADER GINSBURG Your first argument was the right of
personal privacy in one's most intimate sexual relations. You were
asked and you didn't get a chance to answer because you went back on
your equal protection track. You are asking the court to overrule
Bowers v. Hardwick. I thought that was very --

MR. SMITH Yes, Your Honor. We're asking you to overrule it, and we
think that the fundamental right of unmarried people to make these
choices about private adult consensual intimacy applies to different
sex couples as well as same sex couples . . .

MR. ROSENTHAL The petitioner also claims that the mores of our nation
have changed to the point where physical homosexual intimacy is now
part of the fabric of American values. And it's our position this
cannot be correct.

Even if you infer that various states acting through their
legislative process have repealed sodomy laws, there is no protected
right to engage in extra-sexual - extramarital sexual relations,
again, that can trace their roots to history or the traditions of
this nation.

JUSTICE SCALIA I'm sorry. I didn't get that argument. I thought you
were going to say - you were responding to the argument that the
morals haven't changed, or that the morals have changed so that
homosexuality is now approved. And you respond to that by saying that
there's no tradition? I mean, that's a totally different argument
from tradition. I mean, the argument is tradition doesn't matter.

MR. ROSENTHAL Well, history - tradition - does not matter in terms of
whether or not it can be a protected liberty interest.

JUSTICE SCALIA Why do you think that the public perception of
homosexual acts has not changed? Do you think it hasn't?

MR. ROSENTHAL The public perception of it?

JUSTICE SCALIA Yes, yes. Do you think there's public approval of it?

MR. ROSENTHAL Of homosexuals, but not of homosexuality activity.

JUSTICE SCALIA What do you base that on?

MR. ROSENTHAL I beg your pardon?

JUSTICE SCALIA What do you base that on?

MR. ROSENTHAL Well, even --

JUSTICE SCALIA I mean I think there ought to be some evidence which
you can bring forward.


JUSTICE SCALIA Like perhaps the failure of the federal Congress to
add the sexual preference to the list of protected statuses against
which private individuals are not permitted to discriminate, that
addition has been sought several times and it's been rejected by the
federal Congress, hasn't it?

MR. ROSENTHAL Yes, sir, and in addition, what I was trying to say by
the fact that various states have changed their position on sodomy,
they've done it through the legislative process. And that's where we
believe this belongs, is in the statehouse of
Texas, not this court.

JUSTICE SCALIA Yes, but I thought you were responding to the argument
that the public perception hasn't changed, that there still is a
public disapproval of homosexual acts.

And you can't establish that by saying that the states have repealed
their homosexual laws.

MR. ROSENTHAL Well, I think it goes back to whether people in
and people in the other states that had this law on their books
actually accepted through their representative government. I think it
comes down to the actual people who determine the consensus and mores
of the state or the elected legislators.

JUSTICE SCALIA Might there be a difference between the people's
willingness to prosecute something criminally and the people's
embracing of that as a fundamental right?

MR. ROSENTHAL Well, certainly. And just because someone has
decriminalized sodomy doesn't mean that they embraced that practice
as something that ought to be taught in the schools, as was mentioned

JUSTICE STEPHEN G. BREYER But the argument of Bowers, to overrule
Bowers, is not directly related to sodomy. It's related, but not
directly. It's that people in their own bedrooms, which have their
right to do basically what they want, it's not hurting other people.
And they, the other side, says Bowers understated the importance of
that. It got the history wrong. It didn't understand the relationship
of the sodomy to families, and, in addition, Bowers has proved to be
harmful to thousands and thousands and thousands of people, if not
because they're going to be prosecuted, because they fear it, they
might be, which makes it a possible instrument of repression in the
hands of the prosecutors. Now, that's the kind of argument that
they're making. Harmful in consequence, wrong in theory, understating
the constitutional value.

MR. ROSENTHAL All right--

JUSTICE BREYER All right, now how do you respond to that?

MR. ROSENTHAL O.K. First of all, let me correct something that's very
minor at this point, but the allegation was made in petitioner's
argument that people convicted of homosexual conduct are banned from
jobs and housing and all that kind of thing. In
Texas, homosexual
conduct is a Class C misdemeanor. That is, it is the lowest
misdemeanor or the lowest prohibition that
Texas has.

On June 26, 2003 the Supreme Court overruled the Texas sodomy law, apparently on due process grounds. Justice Kennedy, normally a mainstream conservative, wrote the majority opinion. More details will be presented as available.

Some commentators do believe that all sodomy statues have been invalidated. For the complete text at this site (public domain) see

30m  After the Lawrence decision, the sudden new debate about gay marriage actually caused public approval of gays to sag. According to a USA Today/CNNGallup Poll, the percentage of people who believed that homosexual acts should be legal actually dropped from 60% to 48%, a scary thought given recent religious-right calls for a constitutional amendment not just to outlaw gay marriage but to allow “prohibition” approach to sex. Approval of gay marriage dropped from 49% to 40%.

For more on the gay marriage debate, especially some notes on the Massachussets opinion of November 2003 and the recently proposed constitutional amendments purporting to ban same-sex marriage, visit the fay marriage essay at

30n Virginia, Alabama, Texas and Georgia and a few other (mostly southern) states have fairly stringent laws against possession and selling “obscene” materials such as sex toys. This refers to ownership by adults; this is not one of the state “harmful to minors” laws discussed with COPA. In Georgia employees at a sex-toy shop were prosecuted, and in Burleson, Texas (Johnson County, near Fort Worth) an adult “Passion party” consultant Joanne Webb was prosecuted for a home-based sex toy business intended to help married couples remain sexually committed. In July 2004, after eight months, charges were dropped. Webb may sue to have the law declared unconstitutional, using reasoning already in Lawrence v. Texas.  Here is one older account:

Another account with a GLBT slant is  Webb appeared on ABC “Good Morning America” on July 20, 2004.

30o  Debra Hobbs, an emergency dispatcher for the sheriff’s department in Pender County, NC, was forced to resign from her job because of a North Carolina cohabitation law which she was violating with an opposite-sex lover. She is suing (with the ACLU of North Carolina) to have the law overturned under Lawrence v. Texas. Laws in Virginia and West Virginia prohibit “lewd and lascivious cohabitation” by same-sex couples could be challanged in  future litigation. Florida, Mississippi, North Dakota and Michigan also have cohabitation laws. Fornications laws in Virginia and Georgia (where sexual intercourse before marriage “SIBM” was specifically illegal) have been truck down in 2003/2004. See Ryan Lee, The Washington Blade, May 27, 2005.

30p  Very sobering indeed is the Sept. 2005 Harpers article, Cass R. Sunstein, “Fighting for the Supreme Court: How right-wing judges are transforming the Constitution.” Specifically, at issue (in connection with the nomination of John G. Roberts to the Supreme Court, now as Chief Justice) is the notion of judicial fundamentalism, limiting the application of the Constitution and amendments to the literal meaning as the founding fathers would have understood it when it was written. In this view, notions like segregation, state churches, and state limitation of sexual privacy would not be unconstitutional. Oddly, commercial advertising (and self-promotion) would have the same first amendment protection as political speech, and this does not make moral sense. In a climate of this implementation of judicial fundamentalism, the pretext of my book would not have made sense.

30q It’s worthy of note that the FDA decided in July 2006 to allow the sale of “Plan B” (Duramed, Barr Pharmaceuticals) to women 18 and over without a prescription (although from locked and controlled cabinets, like ciagarettes). The drug suppresses ovulation and reduces the likelihood that an egg will attach to the uterus. The pills supposedly have no effect if a woman is already pregnant, so it is dubious that the pill causes “abortion” rather than contraception.

31 Chai Feldblum, Sexual Orientation, Morality, and the Law: Devlin Revisited, (Washington, Georgetown University Law School, 1996).

Chai Feldblum, Brief to the Supreme Court, Romer vs. Evans, Oct., 1995. This paper lists five "warnings to the courts" regarding scrutiny level, such as immutability, benignness, and history of discrimination.

Melinda S. Cooper, "Equal Protection and Sexual Orientation in Military and Security Contexts: An Analysis of Recent Decisions," Law and Sexuality, a Review of Lesbian and Gay Issues, Vol. 3, Tulane University School of Law, (New Orleans: Sprint, 1993).

31a Ch. 6 P 300, pr 4. In October 1997, the 6th Circuit allowed to stand a Cincinnati City Charter which forbade the city council from passing any ordinances giving any kind of special protections for homosexuals or bisexuals. The Court (despite Romer) seemed to feel that the locality of the charter muted the deleterious effect on gays' access to political process and equal protection. Possibly, the charter does not preclude ordinances allowing individual (not group) claims of discrimination. This case is very murky legally. But why do we need to put people first into "suspect classes" in order to protect their individual rights.

31b Ch 6 P 301, after pr. 2: (D) As we know from the June 1997 Agostini v. Felton decision on the incidental use of public school teachers in parochial institutions (for non-religious instruction) it is sometimes possible for the Court to reverse itself on controversial matters, and these could one day include either sodomy or abortion.

31c Ch. 6 P 302, pr. 2. In 1967, two years before America's Stonewall, Britain decriminalized sodomy (although until 1999 it did not allow "telling" homosexuals to serve in its military, see the Chapter 4 notes). However, British law does criminalize sex when more than two people are present and it has a higher age of consent for homosexual than for heterosexual sex. (The European Court has, in July 2000, challenged this law regarding “group sex.”)  [I understand that Parliament has corrected the age of consent problem, to be signed by the Queen and to take effect early in 2001]. In any case, an age-of-consent differential in Britain, as Philip Chandler has pointed out, still makes homosexuals legally inferior and “tolerated” at the whim of the government.] 

31d Ch. 6 P 302, pr. 3. In 1997, Minneapolis City Council candidate Bob Odden (libertarian/reform) criticized the city for "arresting buildings" instead of criminals themselves, by condemning and tearing down crack houses when they could have been renovated as moderate income housing by private property owners, while there were few actual arrests for drug trafficking. (See also note 58a). The City tried to cover this up with its notorious "shopping cart" ordinance, as if shopping carts were the cause of urban blight!

31e.  On Romer v. Evans, a few more observations have been made by others. The Court, for example, did not rely on the “fundamental” (First Amendment and incorporated) right to petition a (by incorporation, state) government for grievances; doing so might have actually precipitated a need for strict scrutiny (as argued by Feldblum in her Devlin paper) as a conservative Court was reluctant to do. (Notes by David Cruz, USC law, on queerlaw).  Further, the Court showed some subtlety in its use of the term “animus” (as something short of hatred). The Court did hold that Romer seemed to invoke a “classification of persons for its own sake,” which is impermissible under the equal protection clause (apparently even under rational basis review, although saying that raises e.p. questions about “don’t ask, don’t tell”). Some of the relevant case law that could be discussed further in this case includes

1.      United Brotherhood of Carpenters and Joiners of America. Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983) (conspiracies motivated by economic or commercial animus)

2.      Griffin v. Breckenridge, 403 U.S. 88 (1971), explanations of the term “animus” (notes from Cruz)

3.       A policeman on Long Island, N.Y. filing suit for harassment under gender discrimination, 42 USC, 193)

4.      Jamie Nabzony, 1997, against a school district in Wisconsin for failing to protect him from harassment for perceived sexual orientation

5.      Stemier v. City of Florence  (notes by Philip Chandler from queerlaw)    


31f  In Virginia, in early 2002, “The House Education Committee approved a measure yesterday requiring local school boards to prohibit any information about "crimes against nature" from being included in classroom discussions, assemblies, student meetings or
school presentations.”  Source is the Frederikcsburg,
Va. Times”.

31g  Randy E. Barnett, in “Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas,” Cato: Supreme Court Review  2002-2003 believes that Justice Kennedy makes a distinction between “fundamental rights” and “liberty interests.” “He spends all of his energies demonstrating that same-sex freedom is a legitimate aspect of liberty—unlike, for example, actions that violate the rights of others, which are not liberty, but license.”

32 Robert Wintemute, Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter (Oxford: Clarendon Press, 1995).

32a Ch. 6 P 302, fn 32. Although in Canada, provinces technically can opt-out of discrimination laws required by the Canadian Charter (and Canada was very late in giving women the right to vote!)

33 Wintemute compares the various arguments: privacy (or liberty) and equal protection in the US, and "fundamental choice" in Europe. He advocates (through extending fundamental choice) the notion that sexual orientation discrimination is a special case of sex discrimination.

34 Barry Lynn, "What's Wrong with 'Parental Rights'" Gay and Lesbian Parents International Network, Summer 1996. This editorial refers to the "Parental Rights Amendment" as proposing "the right of parents to direct the upbringing and education of their children shall not be infringed." The writer believes that such an amendment would dumb down public education, but actually it could force school privatization, or at least school "choice."

35 Peter McWilliams, Ain't Nobody's Business If You Do (Los Angeles: Prelude Press, 1996), p. 641.

35a - notes on the proposed Constitutional amendment

Ch 6 P 305 Provision 6: Here is a link with more recent information on the abortion debate.

Ch 6 P 305 (manu. 211), Provision 9: Actually, off-hours "prayer clubs" are legal in any public schools today, provided that the school offers any off-hours extracurricular activities at all.

Ch. 6 P 305, Provision 10. "Charter schools" might satisfy this amendment when parents have enough individual choice for their children within them. There has been a lot of controversy since 1998 about federally mandated "profiles in learning" and "school to work" programs which seem to give government the opportunity to assign a child her station in life before she can define it herself.

Also, state-funded charter schools can be abused. Kate Engstrom writes, in the Sept 22 Minneapolis Focus Point, that the head of the National Heritage Academies, J.C. Hulzenga, told the Wall Street Journal that he would not hire (openly) gay teachers for his charter schools which, according to the Michigan ACLU, often simply provided tax-paid religious education for white upper middle class families who had transferred their children from tuition-supported private academies. Again, there is always that threat that a military-style "ban" can spill over into teaching. See Chapter 5, fn 157 on the California 1978 Briggs Initiative.

Ch. 6 Page 306, Provision 12. I would now add the provision "without an unreasonable burden upon adult speakers and readers of electronic media."

Ch. 6 Page 306 pr. 2: As a point of law regarding conspiracy prosecution: one can be charged with "conspiracy" only when one has committed at least one affirmative act that would start the execution of the conspiracy plan. Merely discussing or proposing a criminal act is not a crime, but buying the weapons or explosives intended to be used in the crime may itself amount to "conspiracy." (But I still wonder if a sex act could be construed as part of a "conspiarcy.")

Ch. 6 P 307, after para 4 (before "Provision 8"): (D) One June 26, 1997, the Supreme Court held that people do not have a "fundamental right" to assistance in ending their own lives. Such a holding could undermine social incentives to take care of ill, disabled people, especially those without families or who are seen as "burdens."

Ch. 6 P 307, pr. 4. The 1995 Massachusetts Youth Risk Behavior Survey of Gay, Lesbian and Bisexual Students found that gay teens were also much more likely to have smoked cigarettes or to have used cocaine, or to have been truant. Of course, some people will take these results both ways. See We Are Family Gram, Sept. 1997, PO Box 30734 Charleston SC 29417

Ch. 6 P307 general  See a comment about Amendmet 27, the so-called “Rip Van Winkle Amendment” at

On October 20, 2001, the Minneapolis Star Tribune published an op-ed by attorney Erick Hamel to the effect that the Constitution should be amended to give Congress and the Executive explicit powers to deal with domestic terrorism, powers that legally now reset in a decentralized manner with the states under federalism. He mentions the 1878 National Posse Comitatus Act, as well as the limitations of Articles I and IV to suppress insurrections and invasions. 

The cOPA litigation and trial (2006) will be covered in DADT II and III. It's apparent that adult id verification would not helo much, but we didn't know that in 1997!

36 Amniocentesis today is generally not available to check for birth defects or unwanted genes until about the fifteenth week, after the ninety-day period above. David Brown: "Late Term Abortions," The Washington Post Health Magazine Sept. 17, 1996, p. 12. But a fetal blood test might detect unwanted genes much earlier; see Rick Weiss, "Geneticists Hope to Put a Simple Fetal Test Into Circulation," The Washington Post, Nov. 11, 1996, p. A3. Jonathan Tolins's play Twilight of the Golds (New York: S. French, 1994) and made into a cable movie for Showtime in 1997), depicts a couple's discovery through genetic testing that their unborn child will be gay. and walks through the "moral" paradox in predictable fashion. Of course, I hope no one would use tests to pick gender or orientation, but it should not be the business of the state to interfere in the earliest weeks of pregnancy.

37 The film Parts, The Clonus Horror (1978).

38 Boaz (Libertarianism: A Primer) notes that slavery was once called "man stealing."

38a Ch. 6 P. 308 pr. 1. Parental rights would also mean, states could not pass laws to protect grandparents' "rights" as demonstrated on 20/20 2/28/97. A touching problem, but not one for government

39 ABC "20-20" Feb. 28, 1997.

40 On Nov. 27, 1996, a Federal judge, responding to an ACLU lawsuit enjoined the implementation of this amendment, and noted that since the amendment does prevent preferential treatment for age and certain other categories, it could indirectly burden racial and gender minorities despite its logically neutral language.

41 Much has been made of the fact that Timothy McVeigh [#1] had read the novel The Turner Diaries, and a murder victim in Florida has sued Paladin press and an author for publishing a book on how to do a "hit" (settled out of court in May 1999). Supposedly there was one murder which imitated one of Stephen King's novels. My contention is that a criminal will commit the crime anyway. It is unlawful to provide literature which assists another in performing or planning a specific crime. More recently, according to John Stossel on ABC 20-20 Downtown (March 23, 2000), Congress has outlawed “the distribution of information on making destructive devices,” in print form and presumably the Internet (and, unlike the case with pornography and the CDA/COPA, this has not yet attracted a lot of attention—bomb-making directions can be purchased from the government printing office in the form of Army manuals!).  The legal standard for banning “fighting words” is now the threat of “imminent lawless action” rather than “clear and present danger.”  Stossel’s broadcast emphasized that “speech codes” encouraged by government and effectively imposed on the workplace by the tort system allows the “offended” to decide what is offensive and harmful. On some campuses, hecklers have effectively kept speakers with unpopular views (such as an African-American professor, Connerly, who tried to present the case against remedial “affirmative action” racial preferences at the University of Texas). 

Jonathan Rauch, "Offices and Gentlemen," New Republic, June 23, 1997, provides subtle analysis of the way workplace harassment and "hostile environment" laws, when they go so far to stop the hurting of people's feelings, jeopardize the First Amendment because of the constant threat of frivolous litigation.

On March 22, 2000 ABC “20-20” presented a debate on whether school violence was encouraged by video games like “Doom,” which video-game executive Todd Hollenshard defended. The show presented David Grossman, author of Stop Teaching our Kids to Kill, as arguing that the military uses video games to desensitize soldiers and improve their marksmanship. 

42 David Loomis, Gay Spirit: A Guide to Becoming a Sensuous Homosexual (New York: Strawberry Hill/Grove, 1974).

42a  For more on the harmful to minors problem, follow the links at I was probably naïve at the time of the 1997 publication about the difficulty and expense of keeping Internet materials away from minors.

43 It used to be conventional wisdom that writers needed to prove they could earn their way writing genre trash before they dared to write what they really wanted, because they would often create conflicts with their real jobs or risk lawsuits by making enemies.

44 A healthy example of free speech was the reaction of sponsors to the self-outing of "Ellen" in May, 1969. Many sponsors replaced the ones which "jumped ship" and the show, despite a TV-14 rating, earned terrific ratings. Christopher Jones, "Ellen's Biggest Sponsors all Jumped Ship," The Washington Blade, May 2, 1997, p. 23. Another effect of freer speech and discussion is the improvement of attitudes towards gays in smaller towns, Hans Johnson, "Gays Are Achieving Big Gains in Small Towns," The Washington Blade, May 2m 1997, p. 41.

44a.  My proposed Amendment 29 was designed to encourage states to experiment with recognizing same-sex relationships without the burden of making these recognitions binding on other states or on federal law. There is an element of “compromise” in the wording.  However, a collation of religious and “pro-family” groups (the “Alliance for Marriage”) is introducting (July 12, 2001) a “Federal Marriage Amendment” that states "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."  The group “Marriage Equality Minnesota” claims that “this would reverse the civil union law in Vermont, reciprocal beneficiaries law in Hawaii, and domestic partnership benefits and laws in states that now have them.”  That is, the federal Constitution would be preventing states from conferring certain benefits upon same-sex couples even for states wanted to, even within their own borders, because in a sense the Full Faith and Credit Clause may not be overridden by a state’s convenience for this one issue. 

Law professor David B. Cruz has provided an interesting perspective in the Southern California Law Review, Issue 74, #4, “Just Don’t Call It Marriage: The First Amendment and Marriage as an Expressive Resource,” at There is interesting discussion of the symbolic cultural value of marriage and how that can raise First Amendment concerns.

Times have changed and part of DOMA (the federal benefits) was struck down in 2013. Will be covered in DADT III.

45 Sometimes in heterosexual rape cases, "sodomy" is charged because it is easier to convict the accused of something if the he maintains the victim gave "consent." This is a dishonest judicial practice and gets back to the jury manipulation issues of some notorious trials.

45a Ch. 6 P 311. pr. 1 A good example of a liberal's plan to rework the constitution to (as he sees it) a fairer and more efficient form of federal government is contained in the book, Daniel Lazare, The Frozen Republic: How the Constitution is Paralyzing Democracy (New York: Harcourt Brace, 1996). On page 276, Lazare discusses Clinton's paralysis in confronting Sam Nunn over gays in the military.

45b. I didn’t spend any space on the right to a trial by jury (Sixth Amendment), but “jury nullification” has recently become a significant controversy. Juries do have a “right” to refuse to apply a law in a manner they think is unfair; this would be derivable from the double jeopardy clause (5th Amendment) or due process clause (14th Amendment). A good example might be refusing to convict after racial profiling by law enforcement. There have been complaints that judges do not advise juries of this right. Some relevant cases would be Georgia v. Brailsford (1794) and Sparf and Hansen v. United States (1895).  A good reference is to be found at        

46 Waldman, op. cit., p. 33. Waldman suggests that those not meeting military standards (gays??) would do civilian service. Possibly, military service would be required as a pre-requisite for some public offices. But civilian service programs (AmeriCorps) are serious competition for military recruits. See also Harris Wofford, Steven Waldman, Doug Bandow, "AmeriCorps the Beautiful," Policy Review, Sept 1996, p. 28; "Americans Won't Face Another Draft," Newsweek, Feb 18, 1991, p. 117. Eric Schmitt "The fear of ethnic war intrudes upon the search for a few good men," New York Times, Jan. 9, 1996. The very recent sexual harassment scandal which forces the Army to encourage female soldiers to adopt a self-chaperoning buddy system, while a welcome sign that the military may finally be ready to give up "lesbian baiting," raises the troubling possibility that combat units simply will not resolve their sexual tensions and that the all-male draft could again appear necessary. Paul Simon, in his remarks supporting ENDA, hinted he believed a draft could be reinstituted (Congressional Digest, Nov. 96, p. 282) In 1996, the Marine Corps failed to meet its recruiting goals. AOL bulletin boards comically call for gays to boycott any future "draft." Very recently, Arizona state representative Steve May has discussed the possibility of resumption of the draft (in conjunction with his own fight against the military gay ban). On the other hand, another bill to abolish Selective Service was introduced in the House in 1997 and some observers say this bill has a fair chance to pass this time.

47 Steven Waldman, "The Case for Paid Volunteering," U.S. News and World Report, Apr. 28, 1997, p. 36.

48 Lerner, op. cit., pp 294-295.

49 Jonathan Alter, "Powell's new War," Newsweek, Apr. 28, 1997, p. 28 See also articles in the same issue by Allan Sloan and Nicholas Lemann on corporate donations and private charities.

50 Patterson and Kim, op. cit., p. 246.

50a Ch. 6 P 314, pr. 2, comment on "intrinsic obligation" of self-defense: See Austin Fulk, "Gun Control v. Our Freedoms," The Quill, Dec. 1993. According the colonial law (before the Revolutionary War), British subjects were not supposed to carry their own weapons!

51 Wayne La Pierre, Guns, Crime, and Freedom (New York: Harper Perennial, 1994), pp 11-21.

51a Libertarians often point out that when some citizens are armed, the “real criminals” (carjackers, burglars) are deterred by the possibility that any motorist or homeowner may be armed. Those who do not own weapons are deriving a benefit from those who do (that is, the Swiss model).  Gay men often carry pepper spray in neighborhoods around gay bars in many cities, but even this is illegal in some cities like Washington, D.C. 

52 Monk, op. cit., p.91, discussion of "Collective Rights v. Individual Rights."

53 Some communities have passed laws outlawing gun ownership even at home, and the Supreme Court has not incorporated the Second Amendment.

54 Lambda Legal Defense and Education Fund, Lambda Update, Fall 1994, p. 20. The police had tried to use the presumption argument.

55 Harvard Law Review, Sexual Orientation and the Law (Cambridge: Harvard University Press, 1989), p. 25.

56 A similar process was described by Perot in 1992, and by Patterson and Kim, op. cit., pp 269-273.

56a  Here is a possible proposed “Bill of Responsibilities” 

57 Harry Browne (Why Government Doesn't Work) does support a missile defense; see pp 146-158.

58 And, please, don't present Ebonics, with its vagueness about time and causality, as a real "language" (although some linguists will disagree with me).

58a.  All students in secondary school and colleges in this country should master standard English. And some persons may speak “incorrect” English out of ignorance or “laziness.”  But there are genuine claims that Ebonics is a legitimate dialect, and what comes across as ambiguity about time sequence may be an idiomatic way of putting time sequence into a background perspective, in a kind of subjunction. It is respected as a dialect in parts of Africa, so perhaps the tone of my first comment was a bit strident.       

58b Page 317, pr. 4. Although I repeatedly emphasize that my arguments are non-partisan, my behavior since publishing DADT has been somewhat so. I have been active in the Libertarian Party of Minnesota, which assisted me in setting up speaking engagements at Hamline University in St. Paul (Feb. 25, 1998) and the University of Minnesota (March 31, 1999). Students at both schools were extremely helpful in setting these up. For the Hamline speech, I was on crutches from an acetabular fracture in a convenience store fall (more litigation there, and Minnesota appropriately has loser pays in such cases), but the 57-minute speech was videotaped and shown several times on Minnesota public access cable. So I have gradually become even more of a "public figure" as I present the case for a "Bill of Rights 2." But I also hit the streets for LPMN candidates. In 1997, a libertarian, Bob Odden, actually finished ahead of the Republican in a Minneapolis City Council primary, and I got a good dose in salesmanship (don't talk too much!) from him in going door-to-door. Odden would get 33% of the final vote in November.  (That summer, Hamline undergraduate student Anthony Sanders almost placed in the final running for the St. Paul city council, getting about 12% of the vote as a libertarian candidate.) In July 1998, we all hit the streets for a "call to arms" through "ballot access petitioning" to get libertarian party candidates on the ballots for the 1998 elections. To do this, you tailgate strangers at outdoor concerts and at events like the Hennepin Avenue Block Party, just to get a legal signature and address. You don't have to be a registered voter to sign such a petition, and legitimate petitions do not result in mailing lists. But campaigning as a candidate is a high volume, low depth experience, just to get into televised debates! We've also manned booths at county and state fairs, starting discussions with the electronic political quiz. Of course, the public as a whole knows that Jesse Ventura, from the Reform Party, trashed both Skip Humphrey and Norm Coleman in the gubernatorial election in Minnesota. Ventura refused to run as a Libertarian because we were not a major party. He says rather Libertarian things about leaving "moral issues" out of government and with private citizens in debates, but political reality is forcing him to govern like a DFL-er (Democrat-Farn-Labor Party of Minnesota).

58c. This is a good place to mention the controversy over expunged convictions. Many states allow minor convictions to be expunged. Law schools, and especially state bars, are increasingly asking applicants to state expunged as well as recorded convictions. This problem disparately affects African Americans. Kurt L. Schmoke, “Gone but not Forgotten: Bar examiners cheat would-be lawyers of a second chance by asking them to disclose expunged convictions,” Legal Affairs, Jan/.Feb. 2006, p. 27. 

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