Consolidated footnote file for DADT Book, Chapter 6
CONSOLIDATED FOOTNOTES FOR 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
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,
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
6 David Kluge, The
People's Guide to the
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
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,
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
8 In 1991, the
9 Nicholas Riccardi, Jeff
Leeds, "Megan's Law Calling Up Old, Minor Offenses," The
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
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
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.
Prof. William Eskridge at
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
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 http://www.gaymilitary.org/securitysex.htm.
15e. The conviction of Tom Green
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
Impact Weekly, July 2002
A walk in the park
How a conversation about a red bird and the weather got (a
as a sexual offender
By Carrie Inmon
Richard Sincere, "Act Deserved to Be Struck Down,"
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
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
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
19 Although the delays at some airports after the 1996
20 Steven King, The Stand, (New York: Signet, 1990), p. 779.
21 Jeffrey Rosen, "Orginalist
22 There is also a similar recent decision, Planned Parenthood v. Casey , 505 U.S. 833 (1992).
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,
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
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
28 Posner, op. cit., p. 71.
29 Dave Edmondson, "Run Down by
29a The police harassment of gay
30 Bowers v. Hardwick, 760 F. 2d 1202 (11th Cir.,
1985), note 1, p. 199,
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."
The Supreme Court agreed in December 2002 to hear the homosexual-only
Minnesota Civil Liberties Union (MCLU) filed suit (naming the
District court juge Delila
Pierce ruled that the
American Family Associations sent around an email to the Republican National
Convention demanding the arrest of (
as such was not a statutory crime in
30i One resource to keep track of the shrinking list of states with active sodomy laws is http://www.sodomylaws.org/.
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
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
(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
Ann. 5-14-122 (Repl.1997); Kansas, Kan. Stat. Ann. 21-3505 (1995);
Comp. Laws Ann. 750.158, .338(a)-(b)(1991); Missouri, Mo Rev. Stat.
Oklahoma, Okla. Stat tit. 21 886(1983);
Nine states and
defined what would be rape, except for the parties. Ala.Code 1975,
13A-6-63 & -64);
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);
sections 99 and 103 (33 L.P.R.A. 4061 and 4065);
(1995); Virginia-Va. Code Ann. 18.2-361 (1994).
30k The US Supreme Court heard oral arguments on
Lawrence v. Texas on
I responded this to Andrew:
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
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,
Senator Simpson admirably
lays out a simple argument for getting rid of sodomy laws and ending
discrimination against homosexuals: "No special preferences, but no
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.
(Planetout.com gay.com “US Supreme Court weights
landmark case,” Ann Rostow,
”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.
30l Here is a list of materials from the Supreme Court submission and oral argument briefs:
Sexual Orientation, Equal Protection, Fourteenth Amendment, Privacy
Petitioners' criminal convictions under the
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?
Court of Appeals - 14th District, Filed:
States Supreme Court, Cert. Granted:
1. Docket Sheet From the
1. Petitioners (Petition) [PDF]
2. Respondent - Opposition (Petition) [PDF]
3. Petitioners - Reply (Petition) [PDF]
4. Petitioners (Merits) [PDF]
5. Respondent (Merits) [PDF]
- Reply (Merits) [PDF]
Amicus - Petitioners
7. Stonewall Law Association, et al. (Petition) [PDF]
9. American Bar Association (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
18. National Lesbian and Gay Law Association, et al. (Merits) [PDF]
Organization for Women (
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]
Law Association, et al. (Merits) [PDF]
Amicus - Respondent
26. American Family Association, Inc., et al. (Merits) [PDF]
27. Center for
28. Center for Law and Justice International (Merits) [PDF]
29. Center for the Original Intent of the Constitution (Merits) [PDF]
31. Family Research Council, et al. (Merits) [PDF]
32. Liberty Counsel (Merits) [PDF]
Advocate of the
34. States of
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
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
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.
MR. ROSENTHAL Sure.
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
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
conduct is a Class C misdemeanor. That is, it is the lowest
misdemeanor or the lowest prohibition that
Some commentators do believe that all sodomy statues have been invalidated. For the complete text at this site (public domain) see http://www.doaskdotell.com/content/lawtex.htm
30m After the
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 http://www.doaskdotell.com/content/gaymarr.htm.
Another account with a GLBT slant is http://www.gaylesbiantimes.com/?id=1738&issue=837 Webb appeared on
30o Debra Hobbs, an emergency dispatcher
for the sheriff’s department in
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. http://www.cnn.com/2006/HEALTH/07/31/morning.after.pill.ap.ap/index.html
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.
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,
Brotherhood of Carpenters and Joiners of
2. Griffin v. Breckenridge, 403 U.S. 88 (1971), explanations of the term “animus” (notes from Cruz)
3. A policeman on
Nabzony, 1997, against a school district in
5. Stemier v. City of
school presentations.” Source is the Frederikcsburg,
31g Randy E. Barnett, in “Justice Kennedy’s
32 Robert Wintemute, Sexual Orientation
and Human Rights: The
33 Wintemute compares the various
arguments: privacy (or liberty) and equal protection in the
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. http://www.doaskdotell.com/content/abortion.htm
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
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
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
37 The film Parts, The Clonus Horror (1978).
38 Boaz (Libertarianism: A Primer) notes that slavery was once called "man stealing."
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
Jonathan Rauch, "Offices and Gentlemen," New Republic,
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 http://www.doaskdotell.com/content/colpa.htm. 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,
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
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 http://www-rcf.usc.edu/cgi-local/usclrev/PrintArticle.cgi?file=074401 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.
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 http://nowscape.com/fija/fija_us.htm.
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,
47 Steven Waldman, "The Case for Paid
48 Lerner, op. cit., pp 294-295.
49 Jonathan Alter, "Powell's new War," Newsweek,
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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