Well, I guess that answers that? (MD)

The organizations litigating the Maryland marriage case, Equality Maryland and the ACLU of Maryland, appear to be sticking to their original strategic decision: accept no less than marriage equality. The updated Q&A on both organizations websites affirms the position that civil unions are not an acceptable substitute, and declares lobbying for a marriage bill the next step. Good luck.

Speaking of legislative action, for the moment Equality California is still holding out hope and gathering signatures urging Gov. Schwarzenegger to sign that state's marriage equality bill this time around. He justified his earlier veto by reference to Proposition 22 and the popular will. One can counter that the popular will was more recently expressed by sending those who passed the 2005 marriage bill back to the statehouse, plus one more LGBT ally.

MD court denies marriage; reserves civil unions?

Things to note about today's decision of the Courts of Appeals of Maryland:

The court split three ways: 4-1-2. The split was 5-2 in rejecting the plaintiff couples' arguments that they were constitutionally entitled to marry. However, only four judges accepted the state's argument that the couples were not entitled to the rights and benefits of married couples. Out of the remaining four, one would have found the plaintiffs entitled the the rights and benefits of marriage but not to marriage qua marriage, while two would have struck down the marriage ban altogether.

In a lengthy footnote, the majority criticizes Judge Raker's partial concurrence for proposing the "alternate remedy" of civil unions, because the plaintiffs expressly disavowed that they wanted such a remedy. Indeed, the plaintiffs clearly stated that a separate-but-equal solution a la New Jersey would not fully remedy their injuries and might even constitute a fresh dignitary harm.

It's possible that the plaintiffs' litigation strategy determined, at least in part, the result in this case. If a new lawsuit sought a New Jersey-style remedy, the majority's analysis (at least on my cursory skimming) does not seem to rule out a victory altogether. Whether such a suit will be pursued, I'm not sure.

Another note of potential interest is that two of the judges in the majority are now past the mandatory retirement age. (Then again, the author of the partial concurrence soon will be, too.) One wonders whether marriage-equality advocates will look to the choice of new judges in considering a follow-up suit -- or, perhaps, vice versa.

For those wondering about that catchall character question...

A piece at the American Lawyer titled, "Bare Facts: Is an appearance in 'Happy Naked Girls' properly considered by a bar admissions committee? Is an online death threat?" explores matters that have been much on my mind as I prepare to sit for the Bar. (Once again via How Appealing.)

Prosecuting minors for child pornography

Okay, I'm a little in late in picking up on this one, but:

A long while back, amidst a freewheeling discussion of the regulation of indecency, obscenity and child pornography, a friend wondered aloud whether -- since, unlike adult pornograhy, the mere private possession of child pornography is constitutionally punishable -- teenage sweethearts who playfully photograph themselves or one another in the buff can be prosecuted, despite themselves being the ostensible victims. I thought this was a pretty good question, but not one that was very likely to be litigated.

Boy, was I wrong. It happened, in 2005, in Florida. And in January it was upheld on appeal against a challenge under the explicit right to privacy in Florida's constitution. The case is A.H. v. State, Case no. 1D06-0162 (Fla. App. 1 Dist. 2007).

A dissenting justice in A.H. emphasized a prior Florida Supreme Court decision holding unconstitutional the prosecution of a minor for having sex with another willing minor - a case the majority brushed aside. (They instead emphasized a precedent upholding a minor's conviction for making a sex tape with a minor partner and showing it to a third party.) Interestingly, the dissenter focuses on the question of whether a minor's "reasonable expectation of privacy" in their sexual conduct (remember, Florida's privacy right is broader than the federal one) extends to images of that conduct, without reaching the question of whether the state was justified in infringing upon that interest.

-----------------------------


The Florida appeals court discussed Florida precedent, but failed to grapple with the implications of Ashcroft v. ACLU (the U.S. Supreme Court decision holding "virtual" child pornography protected by the First Amendment), which to my mind has important parallels with this case.

Unlike the material in COPA, the material at issue here does feature actual minors in sexual poses or situations. On the other hand, like the COPA material it does not arise out of adult-child sexual conduct and most likely does not document an underlying crime. Of course there remains the consideration that the production of such images may indirectly encourage the market for child pornography generally and the abuse of children -- but it was precisely this concern that the Court in COPA found to be an insufficient premise for criminal liability.

The crucial difference between the COPA materials and those under discussion here is, in the words of the Florida court, that

if these pictures are ultimately released, future damage may be done to these minors’ careers or personal lives. These children are not mature enough to make rational decisions concerning all the possible negative implications of producing these videos.

This is, without doubt, a weighty concern. But it is far form clear that criminal liability is well-tailored to this protective interest, given the possible negative implications of a child pornography conviction itself. Sure, some teens will be deterred, and others will be able to keep their convictions under seal when they come of age, but the "damage that may be done to these minor's careers or personal lives" by being prosecuted remains immense. (I of course gloss over here another crucial difference with COPA, i.e. that it was a First Amendment case and not a privacy case. Notwithstanding the doctrinal differences, I think much of the analysis transfers, at least once you accept that there is a constitutional right at issue here.)

--------------------------------


I honestly don't know why imagined this issue would never materialize, as teenagers have been taking naughty pictures at least since the advent of the Polaroid camera and probably before. With the increasing ubiquity of camera phones, web cams, and other cheap digital cameras, no doubt teenagers are generating indecent images of themselves and each other, with no adult involvement, as never before.

But let's not leave it to speculation: raise your hand if you, as a teenager, committed the crime of "producing, directing or promoting a photograph or representation that [you] knew to include the sexual conduct of a child," i.e. teenager.

If you haven't raised your hand, ask your friends.

If none of them did, that probably just means you're over 35.

Perhaps I'm engaging in a bit of hyperbole here, but I think I nevertheless have made the point that this is a very widespread phenomenon, and treating it as a crime is potentially a very big deal.

It remains to be seen, of course, whether federal or other state prosecutors will seek to apply similar statutes to minors, or how courts would treat constitutional challenges to those prosecutions outside the somewhat rarified world of Florida's privacy jurisprudence. Nevertheless, I'd say this is an issue to watch.

More on the No-Girlfriend Order

Following up on a comment on my earlier post, "The Domestic Violence No-Girlfriend Order":

It's true that, though quite unusual and, to some, shocking, this kind of alternative sentencing condition is not necessarily invalid. As the commenter points out, the offender could be sentenced to imprisonment instead, which curtails one's rights to intimate association even more severely. Even though a fundamental right is involved, it would be a short leap from applying strict scrutiny to such a sentence to applying strict scrutiny to prison sentences, and (whatever criticisms might be leveled at the use of imprisonment as a policy matter) no way are courts going down that road.

Rather, conditions of probation and the like are typically subject to evaluation for their proportionality and reasonableness in light of the offense, and it is on this basis that courts have found acceptable conditions that persons convicted of refusal to pay child support refrain from having children, most famously in the Wisconsin case of State v. Oakley.


Clearly, then, a condition of refraining from intimate relationships is not going to be per se invalid, and a clear analogy can be drawn from the procreation cases, where a drastic condition was imposed on chronic repeat offender to prevent the conditions for reoffending. Both chronic nonsupport and domestic violence are widespread social ills with high rates of recidivism that appear very difficult to deter through conventional means. And in either case, per Griswold v. Connecticut, the State is forbidden from any intrusive surveillance to enforce the condition; it will largely depend on the routine supervision of probation officers.

I wonder, though, how this is going to be enforced. What exactly does it mean to refrain from any "romantic relationship of an intimate nature with a female person"? Does this mean no sex? No going out to movies? No holding hands? No showing up at singles bars? No flirting? Is casual sex okay, but going steady off-limits? In other words, might there not be a vagueness problem here? (I don't think this is merely a theoretical problem either, as most people sooner or later would feel a need for some kind of intimacy and be sorely tempted to skirt the limits of such a condition.) And if it were rewritten to be more precise, just how broad a ban on intimate associations would be deemed proportionate to the need for specific deterrence? (And then there's the seemingly gratuitous specification of gender, which raises at least theoretical Equal Protection concerns.)

And you thought your school dress code was silly

In an interesting twist to the larger European debate over religious clothing and symbols in schools, a British teenager (with the somewhat amusing name of Lydia Playfoot) is taking on her former secondary school for prohibiting her from wearing a silver "chastity ring" at school. The young woman argues that the ring -- inscribed with "1 Thess. 4:3-4" and produced by a once-federally-funded American organization -- is an important expression of her religious commitment to "sexual purity" before marriage. The school, for its part, contends that there is no religious discrimination here, only an even-handed application of their school uniform policy.

The school's policy apparently provides an across-the-board exemption for religious garb and accessories if they are a "religious requirement." Apparently the niqab falls within this exception, but not the "chastity ring," because, as the principal put it:

The ring "is not a Christian symbol, and is not required to be worn by any branch within Christianity."

Ms. Playfoot's rebuttal is essentially, Who is the school principal to decide what is a Christian symbol and what is required to be worn? Or in her lawyer's words, "Secular authorities and institutions cannot be arbiters of religious faith."

He was, of course, very nearly quoting from a decision of the U.S. Supreme Court, and it would stand to reason that the law under Article 9 of the European Convention would be similar, but I leave it to you, gentle reader to figure that out. (Assuming the girl has standing, of course, even though she has since left the school; I can't even guess at how the Brits handle this.)

The school's other contention seems to be that the ring doesn't represent a sincere religious commitment but a mere "fad" (and not even a British one!). Here again, the school should lose: neither the school nor the court is in a position to second-guess individual religious sincerity so long as it is not a transparent hoax. This should be obvious, no?

I wonder what Tony Blair -- who controversially criticized the public wearing of the niqab as a "mark of separation" and expressed approval for the school that disciplined a teacher for wearing it -- would make of this school, which permits the niqab as a "religious requirement" but prohibits the more idiosyncratic but much less obtrusive silver ring? (Interestingly, in public statements Ms. Playfoot, her father and her lawyer can't seem to decide if they're being discriminated against along with, or in contrast to, their Muslim fellows.)

In any event, this transparently ridiculous school rule might hopefully provide some perspective on overzealous calls for suppression of individual religious expression in schools. That little engraved ring isn't even likely to have any effect on the wearer's sexual behavior, let alone the school environment.

The Domestic Violence No-Girlfriend Order

A Canadian court has ordered a man who repeatedly assaulted a former girlfriend that he "cannot form a romantic relationship of an intimate nature with a female person" for the next three years."

Wow.

Just wow.

OK to exclude heterosexuals?

A gay pub in Australia made headlines recently when it applied for an exemption from a state antidiscrimination law for its policy of selectively excluding heterosexuals -- and was vindicated by the Victoria Civil and Administrative Tribunal.

The pub's action was not based on anti-heterosexual animus, but on the owner's concern that an excess of straight clientele were making impossible the safe and comfortable atmosphere for gay patrons that was the pub's raison d'etre. The tribunal found that this policy was consistent with the state's aspiration to protect the dignity of its citizens. It reasoned that while heterosexuals had access to a great many venues where they could socialize, dance, romance, et cetera, the same was not true of gay men; and further, that the large number and at times disrespectful behavior of heterosexual patrons at one of a precious few gay venues the region might effectively deprives gay patrons of the same opportunities heterosexuals enjoy. In its own words:

The proposal will, in my view, benefit men, particularly gay men, by providing them an opportunity to dance and socialise in an environment which will be free from violence, and where they can, uninhibitedly express their sexuality without being treated with hostility or being singled out in any way.

As an additional reason, the tribunal reasoned that the policy might further public health, since

Gay men in a male-only environment, will be more ope[n] about their sexuality and in this setting it is far easier for Aids Council workers to discuss with them matters such as safe sex and protection against HIV Aids.

This decision, and the head-scratching and offense it is likely to cause in the United States, reflect a basic disagreement about the meaning of equality before the law -- namely, whether "substantive" or "formal" equality should be central. In the U.S., formal equality is the polestar -- the law protects suspect classifications, not minority groups per se -- which explains our uneasiness about affirmative action. In Europe, Canada, and Australia, substantive equality is the dominant paradigm, and greater asymmetry between the treatment of majority and minority groups is tolerated so long as it is in the ultimate service of social justice.

To date, the substantive-formal equality debate has been almost exclusively concerned with matters relating to gender, race, ethnicity, and to a limited extent disability. Outside of private associations unreachable by antidiscrimination law -- but occasionally debated within queer communities -- questions of preferring queers or excluding heterosexuals have never really come up, certainly not as legal matters. This has not, of course, stopped LGBT-rights opponents from using deceptive appeals to formal equality via the slogan of "no special rights." Indeed, LGBT advocates have had to expend plenty of energy explaining that LGBT-inclusive antidicrimination laws do strictly conform to the formal-equality principle.

All of which leads me to two conclusions: First, whatever the merits of the Victoria tribunal's conclusion, its approach will never be adopted within the United States. Second, this will not stop American opponents of LGBT civil rights from seizing on the Victoria decision as indicative of the kind of unfair favorable treatment LGBT people seek from the law.

On a more personal note....

It seems worth mentioning that two weeks back I graduated from Case Western, receiving my degrees in law (cum laude) and social work (they don't do that Latin stuff). Between that, and starting to study full-time for the Bar, I haven't been blogging. As indicated by today's earlier post, however, I have every intention of getting back in the swing of things, and have an idea or three percolating.

The obscenity crusade continues

Ever since taking office, Attorney General Gonzales has been on a new crusade against obscenity, naming is a "top priority" for federal law enforcement. To illustrate that Gonzales meant business, check out the press releases page of Justice's Child Exploitation and Obscenity section, and note the impressive number of press releases bragging about obscenity prosecutions. The most visible has been the prosecution of Extreme Associates, which produced a short-lived district court ruling that the federal obscenity laws violate the right to privacy. The unusual prosecution of a Pennsylvania woman for online stories -- pure text -- about child sexual abuse has also grabbed headlines.

Justice's latest target is Max Hardcore, whose name is widely known and often reviled within the porn industry. According to the Justice Department, his films feature "severe violence" against women. To be sure, as in the Extreme case, this guy's films are utterly tasteless and gratuitously mean. Moreover, Max Hardcore has repeatedly been accused of mistreating his talent, in terms ranging from just being an asshole boss to downright criminal behavior. As with Extreme, Justice is very smart, from a public-relations perspective, to pick on such an unsympathetic yet successful pornographer, and to emphasize the "violent" content of his work.

But this indictment is not for coercing women into sex on film, or for any kind of exploitation of anyone. It's for obscenity, i.e. putting someone in jail for years for making dirty pictures. Justice doesn't seek to prove that the "violence" in these films is anything other than pretend, albeit disturbing. If Max Hardcore were indicted for actually harming someone, a good number of porn industry folks would cheer. Instead, this prosecution is likely to make him something of a martyr within the business. And who, other than fans of low-quality smut, wants that?

Protecting porn-stars-for-a-day

Garance Franke-Ruta, in a Wall Street Journal op-ed, recently made the intriguing proposal that the age of consent for appearing in pornography be raised from 18 to 21. She is rightfully concerned with the powerr of dirty pictures to "transform the playful exhibitionism of young women into scarlet letters that follow them around for life." She is particularly concerned about the recent "porn-star-for-a-day" phenomenon exemplified by the Girls Gone Wild franchise, and the exploitative behavior of the entrepreneurs behind it.

Franke-Ruta points out that, after all, the drinking age in every state is 21, and a few moments of recorded debauchery are a lot likelier to perniciously follow one around in later years than a few beers. But the practical implications of such a regulation are different. Today, the age of consent for pornograhy follows constitutional law: pornographic images of minors are not protected by the First Amendment, whether obscene or not, whereas images of persons 18 and up are protected so long as they are not obscene. The private possession of even obscene adult porn is protected; the same is not true of pornography featuring minors. Does Franke-Ruta propose to criminalize the creation of erotic films featuring18-20 year-old? Its sale? Possession? Would the effect be retroactive, thus rendering millions of videos and magazines in millions of home illegal overnight? How could the age of consent be raised consistent with the First Amendment?

But setting aside constitutional law, is this a good idea as a matter of policy? I start from the premise that the sex industry is an industry, those working in it are workers (in the case of Girls Gone Wild, independent contractors), and it should be regulated like other industries -- which is not to say there aren't reasons to treat it specially. But the worst actions of pornographers mentioned by Franke-Ruta are violations of existing law, and should be punished accordingly; business regulations, on the other hand, should assume generally law-abiding businesses. Franke-Ruta rightly points out that changes to the process of obtaining written consent are simply not good enough in light of allegations of the use of alcohol and peer pressure to obtain consent. But there are better ways to protect individual participants from coercion than forbidding them to do so (and 21-year-olds may be vulnerable to coercion as well). I would propose that participants be granted a mechanism through which to revoke their consent within a specified, brief period of time and demand the forfeiture or destruction of all copies of the offending images in return for a return of all compensation paid. Obviously this could present some unintended difficulties if applied to professional performers in the traditional adult film industry -- but I suspect it is still a much better, and less paternalistic, solution to the problem of on-the-spot coercion.

Gonzales v. Carhart and informed consent

I'm currently revising for publication an article (originally written last fall) on the constitutionality of abortion-specific informed consent laws -- a topic on which precious little clear-cut analysis has appeared in case law or commentary. Naturally, the challenge now is to figure out how Gonzales v. Carhart, and its strange language about informed consent -- strange because of the argument that banning a procedure somehow better informed women's choices.

Jack Balkin has suggested, quite rightly I think, that this language may spur state legislatures to be even bolder in passing requirements that ever-more specific -- and inevitably, more controversial -- statements be given to women seeking abortion about fetal development, supposed risks of abortion, et cetera. Be that as it may, it remains to be seen whether this new wave of requirements -- a wave that was already underway before the Supreme Court decision -- can themelves withstand constitutional scrutiny. Does Gonzales v. Carhart say anything new about the validity of informed consent statutes?

The argument I'm leaning towards, is, No, not really, and for a few reasons.

First, the state interests emphasized in Carhart II are the same ones identified in Planned Parenthood v. Casey: showing "respect for life," and ensuring that women's choices are fully informed, lest they regret them. Moreover, Casey had already established the informed-consent rubric could include not only information pertaining to the patient's health, but also to the fetus. Carhart II simply rephrased these principles, and implicitly accepted along with them that these interests are served only where the information is "truthful and not misleading."

Second, Carthart II did not strike a strong blow for the principle of deference to legislative factfinding. Rather, the Court seems to have bunted on this issue, as once stating that it used a "deferential standard" but that it would not give "uncritical deference" (thus muddling further its already muddled case law on this question). In fact, the Court pointed out that some of Congress's findings were wrong, and rested its conclusion on Congress's prerogative to assess the "balance of risks" in marginal cases, a classic policy judgment. This surprised me quite a bit, as I had guessed the Court would treat the deference issue, emphasized in Kennedy's Stenberg dissent, as decisive.

Now, don't get me wrong: what Kennedy actually does with these seemingly sensible puzzle pieces is incoherent and almost absurd, and promotes a deeply sexist conception of women's need to be protected from themselves in the bargain. And his reliance on an amicus brief touting the discredited "post-abortion syndrome" may be a sign that, under whatever doctrinal cloak, Kennedy may be all too sympathetic to antiabortion factual claims even if they are demonstrably bogus.

But whatever ill Carhart II may auger in other areas, the opinion, taken at its word, does not leave legislatures any freer than they were to force clinics to promulgate medical information that is dubious, outdated, or misleading. To go out on a limb just a bit, if the lower courts do engage in robust factual scrutiny of these requirements, stubborn legislators (or state health departments) could end up playing ping-pong with them, struggling to craft the most inflammatory assertions they can get away with in the face of unfavorable rulings.

Quick numbers on relationship recognition and discrimination laws

I promise I'll write some things that don't relate directly to LGBT rights soon; I have some ideas, but this whole finishing law school thing has been a bit of a distraction. For now, some interesting figures in light of recent legislation in Iowa, Washington, Oregon and New Hampshire:

States with full marriage recognition: 1
States with civil union or equivalent recognition: 6 (now incl. NH, OR)
States with modest partnership recognition: 3 + DC (now incl. WA)

States with sexual orientation-inclusive discrimination law: 20 +DC (now incl. IA, CO, OR)
States with gender identity-inclusive discrimination law: 12 +DC (now incl. IA, CO, OR)

For maps of the states, go here and here -- but not that the partnership recognition map designates by the term used rather than the extent of recognition conferred. This is an impotant distinction, since "domestic partnership" in Washington is more modest, whereas "domestic partnership" in California is basically equivalent to "civil union" in VT, CT, NJ & NH.

These numbers are impressive and, at the moment, expanding rapidly -- although we may soon hit the point where expansion slows again as all the states that are ready adopt these laws do so, and efforts in other states fall to gain momentum for the time being. In any event, the number of states in all these categories is now enough that we can start studying their effects across many states and very large populations, rather than relying on evidence from abroad (to which American policymakers, and indeed Americans in general, have always appeared inexplicably indifferent, regardless of the issue). An article from last year in the journal Pediatrics reads like a roadmap for such research, but we don't really seem to have good empirical work yet -- which we need.

Today's theme: trying to have it both ways

As you've probably heard, the House of Representatives just passed a bill expanding the federal hate crimes law. The law both provides for expanded federal assistance to local law enforcement in hate crimes cases, and expands the federal hate crimes statute to include crimes motivated by gender, sexual orientation and disability. The Bush administration opposes the bill, and may even veto it.

As Michael Dorf points out in a thoughtful column today, the White House's objections to this legislation are pretty flimsy. Not only are Commerce Clause and First Amendment objections here seemingly inconsistent with recent Supreme Court jurisprudence, but if valid, they would also apply to the existing federal hate crimes law, which covers crimes motivated by race, national origin, and religion. The White House statement gives nothing but ambiguous hints as to the administration's position on the existing law; it certainly doesn't call for its repeal.

If the White House is serious about these arguments, it should say, "The hate crimes law is a bad law and we should not expand it," even if it isn't willing to expend its now-scarce political capital pushing such a repeal. Moreover, with regard to the First Amendment, the White House should make the case that the protections inserted in the bill in its 2005 iteration to quell the longstanding concerns of the ACLU -- namely, barring the use of a defendant's unrelated speech or associations to establish motivation for a crime -- are not enough.

Like Dorf, I suspect that these objections are just a transparent pretext for homophobia. It's pretty apparent at this point that, for both opponents and supporters, the hate crimes bill doubles as a rehearsal for the recently-reintroduced Employment Non-Discrimination Act. Expanding the hate crimes law, both sides believe, will set a precedent easing the way to expand the Civil Rights Act. And judging from the White House statement on the former, it looks like the White House is cautiously groping for a viable position on the latter.

Our second topic for today is the military's increasing disregard for "Don't Ask, Don't Tell" in light of its increasingly strained human resources, exemplified by the case of a Navy linguist called back to service, even though he had concluded his prior service in the midst of being discharged for being openly gay. They could do this because, technically, his "DADT" discharge never went through, and he left because his time was up; they've apparently just decided to ignore his sexual orientation this time around. When you've squandered mountains of cash on recruiting, training and discharging queer servicemembers with specialized skills like this fellow, "What? Gay? We didn't hear nothin'" starts to sound like wise personnel policy.

Ironically, this particular story hits the news just weeks after the Joint Chiefs Chairman turned heads by declaring he supports DADT because homosexuality is "immoral." (You'll recall that General Pace later "regretted" his remarks, not because he didn't mean them, but because his own "moral views" are beside the point when it comes to military policy.) Fortunately, General Pace now gets to enjoy both the moral superiority of hanging onto DADT and the practical advantage of conveniently ignoring it now and again.

Now, perhaps it's unfair to compare the military's fudging of DADT to the White Houses's dubious arguments on the hate crimes bill. At the end of the day, DADT isn't actually the military's policy -- it's Congress's -- and lots of folks within the military would just as soon see it go, General Pace notwithstanding. Nevertheless, I do see a bit of a parallel here: the White House appears to want to please social conservatives by opposing a pro-gay bill, without displeasing pretty much everyone else by attacking the existing law, even though the two are essentially the same. And some Pentagon leaders want to stick to an anti-gay policy ostensibly based on the erosion of unite cohesion and morale by out troops, but at the same time is at least willing to tolerate the occasional, highly skilled out troop, even though, well, you get the idea.

Ohio courts just don't get transgender issues

There's been a fair amount of media attention of late (including a New York Times piece last December and a 20/20 special last week) on the question of how parents should deal with their young transgender children -- most particularly, should they permit them to present as the "opposite" gender at home and at school? This coverage has been, on the whole, surprisingly sympathetic to parents who answer "yes."

Although litigation on this issue between warring parents was inevitable, it had not arisen in this country until now. The Family Court of Australia has delivered the most thorough treatment of the issue, in holding that a 13-year-old ward of the state should receive hormone therapy to delay puberty an, in the long term, to facilitate gender transition.

Now, the latest Lesbian/Gay Law Notes reports an Ohio appellate decision affirming the denial of custody to a previously custodial mother because she brought her child to transgender support groups and registered her at school as a child (in contrast to her birth sex). I don't think I can add much to the discussion of the case in Arthur Leonard's lengthy blog post, but this decision -- which stands in contradiction to the balance of expert psychological opinion -- looks like a cry for judicial education. Ohio is, after all, one of the few states that persists in the just-because position that gender is immutable.

Addendum on abortion and federalism

Neal Devins of William & Mary was way ahead of me with his new article on the subject:

My claim is simple: The Rehnquist Court was able to revive federalism, in part, because there was no reason for the Court to fear political retaliation for its federalism decisions. Congress, interest groups, and the American people do not care about federalism. On abortionrelated issues, pro-choice interests care about the pro-choice agenda; pro-life interests care about the pro-life agenda. Federalism does not figure into these agendas and, as such, it is politically irrelevant to the debate over abortion. The political fight over partial birth abortion exemplifies Congress’s uninterest in federalism.

Moreover, Lynne Deniston at SCOTUSblog is probably right that, while still-pending PBABA case in the Second Circuit presents the opportunity to raise the federalism issue, reproductive rights advocates probably won't, because they (a) don't care about federalism on its own merits and (b) know very well that any further shoring up of Rehnquist federalism could bite them in the ass on future legislation they favor.

Abortion and federalism

There is, of course, currently an impressive flurry of online discussion about Gonzales v. Carhart -- to which I am paying close attention, it bears very much upon my forthcoming article on informed consent and abortion. I have many thoughts about this decision and its ultimate import, but for now I'll settle for noting the latent federalism question. As Justice Thomas noted in his concurrence, the parties and the lower courts did not raise whether the Partial-Birth Abortion Ban Act was valid Commerce Clause legislation, and so the Supreme Court didn't either.

Until PBABA the Congress, though monkeying with federal funding provisions, had otherwise stayed out of the abortion issue, and it's far from clear whether this kind of law could survive recent federalism precedents. But liberal Democrats have decided to jump into the game, too, reintroducing a a bill from the 109th Congress that would attempt to codify Roe, in all its pre-Casey, strict-scrutiny glory, in the U.S. Code. This bill didn't go anywhere before, and its still might not now, even with the fresh Carhart II furor. After all, the PBABA had significant support from Democrats. It may be that this new bill, if passed, would not pass federalism muster, and neither would the PBABA. Yet public opinion appears to favor uniform, national rule-making on these hot-button issues.

Now, that opinion might change with the new Congressional majority, or new Supreme Court decisions, or whathaveyou. It seems to me that, outside that intellectual arena, when we talk about federalism and "leaving things to the states," the argument is typically a cipher for substantive policy preferences -- i.e., those supporting abortion restrictions favor "leaving it to the states" because the trend in the states was toward restricting abortion; those supporting recognition for same-sex couples favor "leaving it to the states" because there is a long-term liberalizing trend there, in contrast to the proposed Federal Marriage Amendment.

Alternatively, appeals to federalism might be a reflection of our ambivalence about the substantive issue (i.e., we want to have it both ways, for now). But it's hard for most of us to care about federalism for its own sake; instead we argue it because it sounds eminently reasonable, and because it may appeal to the ambivalent.

Having lost on the substantive issues, reproductive rights groups might now launch a federalism challenge to PBABA, and might win. But they'll have a hard time selling the federalism line to their constituents or to anyone else. Perhaps federalism is most important when it comes to controversial social issues (as opposed to true economic regulation) -- but today, do many of us really care?

Alternative sexuality in the news

Since I've recently written about BDSM and the criminal law, it seems worthwhile to point out one of the few regular sources for information about BDSM and other alternative sexualities in the news, including legal news. The National Coalition for Sexual Freedom is a public education and advocacy group dedicated to promoting "sexual freedom and privacy rights for all adults who engage in safe, sane and consensual behavior." Their primary focus is on issues related to BDSM, swinging and polyamory (a curious grouping, but one based on some common concerns). In addition to filing amicus briefs in a few high-profile cases, NCSF posts regular "Media Updates" collecting news reports from around the country. Though NCSF is very much an agenda-driven organization, the fact that their news roundups are commentary-free (save for a general exhortation to write letters-to-the-editor) makes them valuable for anyone interested in these issues or in current social debates over sexuality generally.

An intriguing article on "the right to be hurt"

In late 2004 I penned a column discussing what I perceived to be the rather ham-handed approach of some courts to the use of consent as a defense to criminal assault. The troubling implication of this is the possibility that people could be prosecuted for harmless, private and fully consensual sadomasochistic activities. However, the out-of-hand treatment of the consent issue in these cases could be explained by the troubling particulars of each case, and one could reasonably hope that future decisions would consider the issue more deeply.

Rugters professor Vera Bergelson's new article, "The Right to be Hurt: Testing the Boundaries of Consent," presents just the sort of thorough consideration of the issue I'd been hoping to see. Alas, along the way she points to larger collection of English and American cases -- stretching from 1934 to 2004 -- consistently rejecting any consent defense for purported sadomasochistic activities. The reported facts of these cases underscore that the factual problem of consent here is similar to that in rape cases, to wit, there exists the possibility both of false accusation by a willing "victim" and (perhaps more likely) false assertions of consent by the accused. Courts dodge these difficult determinations by rejecting the consent defense wholesale.

Bergelson's own analysis begins from the premise that issue of consensual "harms" must be treated comprehensively, considering a range of truly disparate phenomena ranging from sadomasochism, to elective amputation, to various kinds of consensual killing. (Doubtless, various readers are going to feel offended at the very idea of comparing x with y.) Examining the way these diverse issues have been previously dealt with in case law and commentary, Bergelson attempts to systematically demonstrate the inadequacy of various principles relied upon in resolving them.

Ultimately Bergelson proposes a "balance of evils" approach to consent defenses, quite similar to other justifications in criminal law. With the respect to the issue I originally was interested in -- consensual sadomasochism -- this approach has the virtue of providing an alternative result to the case law to date without the specter of a slippery slope. While courts have strained to bring sadomasochism within the ambit of "serious injury," it's clear that typically the physical harms involved will be so trivial (or nonexistent) as to "be justified by the mere fact that its participants desired it." The more troubling cases, involving lasting bodily harm or loss or death, will require much greater justification, and some will never be justifiable.

I suspect that Professor Bergelson's approach will not soon be wholeheartedly embraced by judges, particularly in cases where consent itself is disputed. But her thoughtful discussion of the issue is valuable indeed.

Sex change doesn't end spousal support

This one should be a no-brainer: a Florida court has rejected an ex-husband's bid to end his support obligations on account of the fact his former wife has become a man. The ex-husband had first argued that the person to whom he owed the obligation no longer exists (not quite, sir), and then argued that his paying alimony (as it's still called there) to a man was against the State's public policy against recognizing same-sex marriage.

Unfortunately, the court reached this inevitable result by way of unnecessarily bad reasoning -- albeit reasoning seemingly compelled by state precedent. To wit, Florida does not recognize the possibility of changing one's sex, per Kantaras v. Kantaras, 884 So.2d 155 (Fla. App. 2004).

Accordingly, the Lambda Legal attorneys representing the former Mrs. Roach, now Mr. Silverwolf, called this

a good news, bad news decision. While the end result of the court ruling is good for our client, part of how we got there is bad for the transgender community as a whole in Florida. This is the precise example of why it is damaging to chain people to the gender on their birth certificate. It's wrong to call our client a woman when Julio is a man.

The conclusion that sex change is legally impossible is simply not necessary to decide a case like this. Even once one accepts that the former wife is now male, this should not invalidate the support obligation. First, the support order itself contemplates only limited circumstances in which the obligation ceases, none of which have occurred. And second, a gender transition after divorce cannot invalidate a marriage ex post facto. Though no court has squarely addressed the question, it is plain as day that, like any other prerequisite for marriage, the sex criteria must be met at the time of marriage, but a change of circumstance later has no effect.

If you are a minor who marries with your parent's consent, and after the wedding your folks have regrets, that does not invalidate your marriage. If you marry while competent but become incompetent, that does not invalidate your marriage. And if you marry while female and become male, that does not invalidate your marriage. The same result should be found whether the transition occurs during the marriage or after divorce -- or else there are a lot of potentially invalid marriages out there.

This case is the natural inverse of M.T. v. J.T., 355 A.2d 204 (N.J. Super 1976), in which a husband could not escape his obligations on the basis that his ex-wife had once (prior to their marriage) been male. Because the sex change there occurred before the marriage, the court was called upon to decide its validity and did so. Because the marriage was valid, the support obligation was, too. The same is true in this case (where the transition is in the "opposite" direction), precisely because the gender transition occurred after the marriage.

Is sex a BFOQ for exotic dancing?

Title VII of the federal Civil Rights Act states that otherwise impermissible discrimination is not prohibited "in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Ever since I first began to study Title VII, I have wondered about how the BFOQ exception should apply to exotic dancing.

In a 1999 article, Margot Rutman described how dancers' protections against age, race and national origin discrimination are undercut by club owners' ability to characterize an employment action as based on beauty or style. See Exotic Dancers' Employment Law Regulations, 8 Temp. Pol. & Civ.Rts. L.Rev. 515 (1999). Unless a club really puts its foot in its mouth, or systematically discriminates for some time, that defense will be very difficult to try on the facts.

But at least it's clear that such claims can be made. What about sex discrimination?

As far as I know, there is no case law squarely addressing whether exotic dancing clubs can discriminate on the basis of sex, but dicta in some court decisions treat the issue as a paradigmatic no-brainer. Consider the oft-cited decision in Wilson v. Southwest Airlines, 517 F.Supp. 292 (N.D. Tex. 1981), which torpedoed the flirty-attendants-in-hot-pants, Airline-That-Loves-You business model on which Southwest was built. There, the court held that sex appeal, and specifically female sex appeal, was not an essential part of the job of a flight attendant, despite being preferred by customers and being a key part of Southwest's particular business plan. By way of contrast, the court mused that:

in jobs where sex or vicarious sexual recreation is the primary service provided, e. g. a social escort or topless dancer, the job automatically calls for one sex exclusively; the employee's sex and the service provided are inseparable.

In support of this conclusion, it cited two unpublished 1971 cases of the New York Human Rights Appeals Board, which concerned age discrimination but stated in dicta, without explanation, that sex was a BFOQ for being a Playboy Bunny at the Playboy Club. This was evident because, according to the Wilson court, "female sexuality [is] reasonably necessary to perform the dominant purpose of the job which is forthrightly to titillate and entice male customers."

The distinction drawn between flight attendants and exotic dancers or Playboy Bunnies has always troubled me. A quick read of the Wilson facts makes clear that in a very significant sense Southwest Airlines was also selling "female sexuality" to its largely male clientele. But the Wilson court held that the essense of the flight attendant job lies in the attendant's "mechanical, non-sex-linked duties." Female sex appeal was simply "the manner of job performance, not the job performed."

Now, it would be mere sophistry to argue that an exotic dancer's duties are merely "mechanical," for indeed the essence of his or her job is not just dancing but sexual entertainment. Sexiness (of a sort) is certainly "the job" and not "the manner."

But is femaleness also an essential feature of the job? Consider that male and female exotic dancers, while typically working in separate clubs, perform essentially the same job. Clearly both men and women can (a) dance, (b) strip, and (c) be sexy. The only thing men cannot do is be sexy in the eyes of a straight male customer.

(This, of course, is a convenient overstatement. The success, indeed the mere existence, of the film 300 itself proves that ostensibly heterosexual males often derive enjoyment from blatant displays of the male body.)

The Wilson dictum, then, is founded on two basic assumptions: first, that exotic dance clubs by their nature must cater to heterosexual males (or alternatively, that the world contains two kinds of clubs -- gay and straight ones -- and the two are fundamentally distinct and irreconcilable); and second, that heterosexuality (or, in a few clubs, homosexuality) is far more than a mere customer preference and indeed defines sexual entertainment.

In other words, exotic dancing at its essence is pleasing straight men. Or, to the extent that there may be more than one audience out there that wants more than one thing, each audience wants only one thing, and each club can attract only one audience.

This is, of course, an accurate reflection of the industry as it exists today. With very few exceptions, clubs do not offer a mix of male and female dancers in the same venue. (The few that do specifically market themselves to straight women and men respectively; it is not just heterosexuality at work here, but homophobia, as straight male patrons are assumed to be repelled by the presence of gay male patrons.) Imagine the reaction in your average Crazy Horse Saloon or Diamond Men's Club if, between Amy the Blonde Princess and Cherise the Dark-Eyed Beauty a handsome man in a g-string appeared on stage.

But isn't that a quintessential example of customer preference at work? And what about the increasing number of female patrons at these clubs? And what about those few exceptional clubs that offer male and female dancers on separate stages? And might there not be some bisexual or bi-curious patrons, or potential patrons, of both sexes who would prefer a combination of male and female dancers? Sure, the tried-and-true all-girl approach might make more money, but that in itself does not a BFOQ make under Wilson.

To be sure, it's hard to imagine the male dancer who would want to work in an all-female club, or vice versa. A serious challenge to sex discrimination in exotic dancing would presumably lead to a downturn in business for clubs in the immediate short term, and a radical transformation of adult entertainment in the longer term. But would that be so bad? Might that not produce some benefits in terms of sex equality?

In reality, this issue may never be litigated, and if it is, courts are likely to hold fast to the assumptions implicit in Wilson. If nothing else, though, thinking about BFOQ in the context of exotic dancing can serve to illuminate both the rigid way we're in which we're used to thinking about sexuality, sexiness and gender; as well as the potentially hazy line-drawing inherent in the BFOQ doctrine.

We're still litigating a 1998 porn law?

Looks like the downright silliest waste of Federal resources of the new century -- that is, the government's tireless efforts to defend the never-enforced Child Online Protection Act of 1998 -- is nearly at an end with today's meticulous district court decision permanently enjoining COPA. Tip of the hat to Nerve.com -- one of an all-star cast of sex-positive plaintiffs -- for their fascinating, quirky, in-depth coverage of last year's trial in the case. Up for one more round of appeals, Alberto?

Briggs Initiative goes Polish?

I see an EU smackdown in the works: Poland is thinking about banning queers from teaching. With any luck, though, it'll just galvanize the gay community.

Isn't "Bong Hits 4 Jesus" fun to say?

You've probably heard ten times this week about Morse v. Frederick, just argued before the Supremes. It's perceived by many as being a silly case -- and certainly, a case involving a real message rather than a meaningless stunt might've made a nicer vehicle for the legal issues at stake. But "Bong Hits" is what we've got, and it's important.

What intrigues me, however, is that Morse seems such a perfect companion to Harper v. Poway Unified School District, which the Court will be hearing later this term. Poway, which I've mentioned before, concerns a student disciplined for wearing a vitriolic anti-gay t-shirt. And the two cases provide the opportunity for some much-needed clarity on the twin aspects of the landmark Tinker v. Des Moines decision, which established that First Amendment rights don't stop "at the schoolhouse door." Tinker contemplated two permissible grounds for limiting student speech: disruptions to the school's educational function, and interference with the rights of others. The Ninth Circuit controversially upheld the Poway school's action based on the rights-of-others prong; the same court held for the student in Morse because the school had failed to meet the disruption prong.

The rights-of-others prong has pretty much lain dormant all these years; whether you agree with the Ninth Circuit's holding or not, it's about time to get some guidance on what it means. By contrast, the disruption prong has been very much alive, inasmuch as school administrators are always using it -- and getting sued over it. The general public perception, and that of administrators (of course), has been that the reach of the disruption prong is very broad indeed -- so much so that a lot of folks are surprised to hear that students have First Amendment rights at school at all. Too broad a view of the disruption prong pretty well eviscerates Tinker, but defining the reach of either prong is bound to bedevil the Court.

While many take the same side (student or school) in both cases -- including, interestingly, social conservative groups, to whom student speech is increasingly important in relation to anti-abortion and anti-gay messages -- I think the relevant facts and (in some respects) the relevant principles are quite different, and thus the results should differ. (For one thing, both the room for abuse and the inclination to abuse seem to me much greater with the disruption rationale.) In any event, when these decisions come down one will want to read them in conjunction, I think, to fully assess the legacy of Tinker. Assuming you haven't had too many bong hits with Jesus.

Marriage debate continues in France

Marriage equality continues to be a hot issue (although far from the top issue) in the French presidential elections, following Tuesday's unsurprising ruling by the Court de Cassation, which held the 2004 civil marriage of two men from the city of Belges to be illegal. This follows that court's decision last month that a nonbiological lesbian parent could not adopt her daughter.

Without getting too much into French politics, the Socialist candidate (consistently running a close second in the polls) promises to see a marriage equality bill introduced, while the apparent center-right front runner opposes such a measure.

The couple that just lost in the Court de Cassation have promised to appeal to the European Court of Human Rights. That court has thus far refused to recognize the extension of European Convention Article 12 (right to marry) to same-sex couples, but it is certainly conceivable that in the future it could - as indicated, for example, by that court's gradual evolution of view with regard to transsexualism.

Alleged DC madam denies charges, aims to disclose clients

Via Transcending Gender, I've been reading about the case of Deborah Palfrey, accused Washington, D.C. madam. Palfrey claims she was running a legal "fantasy escort" service that did not provide actual sex for pay. At the same time, she is talking about selling her client list -- and is now the prosecutor is trying to have her gagged to protect those clients, including, allegedly, prominent political types such as Dick Morris (hey, why not? he's admitting buying sex before).

Without having studied the details of this case -- info on the Web is relatively scant at this point -- it's not at all clear whether Palfrey's defense is credible. On the one hand, lots of folks who were running prostitution claim they were only providing legal services. On the other hand, there are plenty of adult businesses out there, from dominatrices to escorts, who do provide personalized erotic services within the confines of the law, and who fall occasionally victim to authorities' attempts to twist the law or entrap them. The devil is often in the details, and sometimes it comes down to he-said, she-said. It'll be interesting to see how this plays out.

A completely separate and also interesting issue is the proposed protective order. Though the motion doesn't say just what type of information they're concerned about, it looks like an effort to protect the reputations of, in some cases, prominent men in Washington (be they consultants, businessmen, or public servants). Whether the court can intervene to protect their privacy, or whether the prominence of certain clients creates matters of public concern covered by the First Amendment, remains to be seen. I personally don't know if there have been cases quite like this before -- I'm betting there have -- or for that matter whether a First Amendment issue will come to the forefront here, but that too will be interesting to see.

DADT bedevils Air Force rape prosecution

It's been clear for some time now that Congress's "Don't Ask, Don't Tell" policy towards queer servicemembers has perverse, and serious consequences. But it never occurred to me, or probably to almost anyone, that on top of everything else is might complicate the investigation and prosecution of crimes within the armed forces. That, apparently, is just what has happened in the case of an Air Force officer accused of raping fellow servicemen. As this news report indicates, where sexual crimes are concerned DADT may give victims and witnesses disincentives to report and cooperate with investigators; lead innocent accused to jeopardize their defense by lying; and give guilty accused convenient explanations for their lies.

FL city fires manager over sex reassignment

In a move that has sparked local controversy and national attention, the Largo, FL City Commission voted last month to dismiss their City Manager of fourteen years because she is undergoing a gender transition. No one contested that Susan Stanton -- formerly Steven Stanton -- had done a great job all along, but five out of seven commissioners decided she'd "lost credibility" because of her transition.

Ms. Stanton is appealing her dismissal through commission procedures for now, but she has retained legal representation through the National Center for Lesbian Rights, which has said it will consider going to court over the matter.

Largo has an internal nondiscrimination policy here that appears to have been violated by this filing, though it's not clear to me what the remedy is for such a violation. Florida and federal law do not clearly prohibit anti-trans discrimination in employment. The Equal Protection Clause probably does so in public employment, see Doe v. United States Postal Service, 1985 WL 9446 (D.D.C. 1985). Though under rational basis review an argument about "credibility" or the like might be made, this looks like animus under another name.

Is the firing, by vote of the city commission, of a city manager a nonjusticiable political question? Nice try, but I think not. I haven't really studied this area, but Powell v. McCormack seems to me to dictate that even dismissal of a top political official is justiciable when constitutional rights are involved.

More interesting to me than the legal questions here is how this plays out in public discourse, particularly within the city and state. Firings of trans teachers and professors in recent years have generated considerable discussion of anti-trans discrimination, but this high-profile case involving a long-serving public official seems an even more poignant vehicle for that discussion.

For more on the relevant law and the media coverage of this case, I refer you to Janet Weiss's Transgender Workplace Diversity blog.

On overruling Roe

Over at Prawfsblawg, Jessie Hill (my favorite CWRU faculty member) recently wrote a trilogy of commentaries on the prospects and implications of overruling Roe v. Wade. She points out what I have often found myself pointing out to nonlawyers interested in the issue: that despite the recent Supreme Court appointments, there are still five clear votes for upholding Roe. And moreover, Justice Roberts's general attitude so far, together with the unanimous Ayotte opinion, suggests that he just might give considerable weight to the stare decisis factor than his conservative colleagues if he were in a position to swing the Court. This is all another way of saying that the state legislators busying themselves with creating "test" laws to challenge Roe are engaging in a huge waste of state resources.

More interesting than all that is Hill's thoughtful speculation about how state legislatures would react to such an overruling; whether pre-Roe bans would "reactivate" automatically; and whether the health exception requirement would remain.

HPV vaccination: the litigation begins

Reportedly thirty-three states have now begun considering bills to promote or require the revolutionary HPV vaccine (here's a summary of six of those). While cultural-conservative response during the FDA approval process was relatively muted (as compared to the long struggle over OTC emergency contraception), there is now a full-blown debate about whether the vaccine should be mandated, largely arising from HPV's status as a sexually transmitted disease.

Inevitably, the litigation has begun, with several Texas parents challenging Texas Gov. Rick Perry's executive order mandating the vaccine for sixth-grade enrollment. While the claim in this case appears to one in state law alleging that the Governor exceeded his authority, this will not be the only such suit, and others will surely raised constitutional objections. These claims, I expect, will be based either on the right to bodily integrity or the right to direct the upbringing of one's children. Free exercise claims are also imaginable, although the mandatory vaccination bills out there seem generally to include religious exemptions.

The natural question becomes the application of Jacobson v. Commonwealth, in which the Supreme Court in 1905 rejected a constitutional challenge to mandatory smallpox vaccination. The Court there held that (1) individual liberty interests could in appropriate circumstances be overridden by public health measures, and (2) the legislature having judged a mandatory scheme proper in accordance with overwhelming medical opinion, it was not for the courts to undertake a fresh examination of claims about the safety or efficacy of the vaccine. That case is still good law, as demonstrated by the Court's need to distinguish it in the Cruzan case, and by a military appeals court's recent reliance on it to uphold a mandatory anthrax vaccination. U.S. v. Schwartz, 61 M.J. 567 (N.M. Ct. Crim. App. 2005).

Of course, one vaccination is not the same as another; the public health implications of cervical cancer and smallpox are also quite different. Nearly 12,000 diagnoses and 4,000 deaths per year is a serious problem, but it is not highly contagious and does not rise to the level of a public emergency.

On the other hand, the potential parental objections seem relatively slight. Rather than asserting that the HPV vaccine is dangerous (as in Jacobson), parents would presumably be asserting simply that its safety and efficacy are uncertain, and/or that it would interfere with their parental prerogative in teaching proper sexual values. As in Jacobson, medical authority overwhelmingly supports the safety and efficacy of the vaccine. The risk of physical harm is merely speculative, as is the "risk" that vaccination would encourage adolescent sex. In any event, vaccination in no way prevents parents from teaching their children - and if they want to teach them to fear sex, there are plenty of other risks to spook them with.

Nevertheless, I would expect to see some ingenious arguments being made against mandatory vaccination, in both the legislatures and the courts, as this issue plays out across the country.

Edit: As the commenter below rightly indicates, the forthcoming legislation will likely have generous opt-out provisions, thus largely vitiating any constitutional objections by parents. In the context of school prayer, the Supreme Court has said that opt-outs are not enough to protect the objector because the opting-out child may be ridiculed by others. No such concerns apply here, and even if they did they only really have force in the Establishment Clause context. I shouldn't be surprised, however, if some creative arguments are put out there to challenge vaccination nonetheless -- so much is suggested by the current political debate, despite the opt-outs.

More on Lawrence v. Texas's sandpapery slope

Howard Bashman's latest On Appeal column neatly summarizes the recent incest and sex toy decisions and their implications.

Bashman is right about the Supreme Court's apparenty disinterest in hearing follow-up cases. As I have mused before, this is a striking contrast to the rapid succession of post-Brown v. Board of Ed. cases, which quickly dispensed with the narrow distinctions drawn in Brown. In fact, if this trend continues, one wonder whether Lawrence will become a little like Bush v. Gore, a case you're not supposed to cite for anything. "Oh, you're not trotting out that old thing, are you?"

Consensual adult incest still a crime in Ohio

Speaking of the need for guidance on Lawrence v. Texas, the Ohio Supreme Court yesterday affirmed a man's incest conviction for having, concededly consensual, sex with his 22 year old stepdaughter. The court first held that the lack of any mention of age or consent in the statute meant that these factors were legally irrelevant; and further held that Lawrence was inapplicable since the State's legitimate interest in protecting the family is involved.

The Ohio court viewed Lawrence as a simple rational-basis decision. This seems to be the view of most post-Lawrence decisions, but it is by no means clear from the Supreme Court's poetic but legally muddled opinion.

If only rational basis review applies, it's pretty clear that Ohio's incest ban survives. It is rational to conclude that incestuous relationships may have destructive tendencies even between consenting adults. To the extent that this danger may sometimes be lessened with stepparent relationships, the stepparent who has not adopted his stepchild may get outside the ban by divorcing.

It is less clear to me that this law would pass muster if a fundamental right were involved, for it is at least arguable that the dangers of incest are less pervasive and less severe when with consenting adult. This would present a complex question, begging some illumination from the social sciences. But since the law was upheld, a narrowing amendment by the legislature is at least worth considering carefully in light of the serious criminal consequences (not that it will happen, of course).

Interestingly, in this case a dissenting justice said nothing of the constitutional issue but took issue with the court's statutory interpretation, based on a different reading of the legislative history. He went on to say:

I suspect that the statute was not employed in this case as a means to preserve Ohio’s fractured extended families. Rather, the state used [the law] as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim. [The incest law] provides a shortcut to a conviction. This sort of use of the statute demeans its true purpose.

This is a problem that has often occurred to me, and which I had not yet seen recognized by courts. There is no indication from the opinions whether consent was in any way doubtful in this case. But I suspect that this is a major reason why many laws criminalizing consensual sex are kept on the books. To use laws like this as a "shortcut to a conviction" would seem to erode the basic rights of the criminal defendant and cheapen our system of justice, even if it sometimes helps put bad guys in jail.

No comment.

I'm sure there some legal commentary to be had here, but I just don't know where to begin:

A Michigan man will stand trial for committing sodomy with a dog carcass.

S.Ct. denies cert. in polygamy case

The U.S. Supreme Court denied certiorari yesterday in Holm v. Utah, the appeal of a heretic Mormon polygamist whose polygamy conviction was upheld by the state's highest court. This continues the Supreme Court's consistent refusal to hear any cases concerning the scope of Lawrence v. Texas.

In one sense this is a pity, because the unique "bigamy" statute in Utah -- which actually criminalizes nothing more than cohabitation with a person other than one's spouse -- presents an issue that may be closer to the one in Lawrence than in other post-Lawrence cases it has refused to hear. (The major difference being the state's asserted interest in addressing separate crimes believed to be correlated with polygamy -- also an issue of considerable interest.) Yet denial in this particular case makes perfect sense, because the involvement of a sixteen-year-old in Holm means that the issue of the rights of consenting adults is not squarely presented.

However you feel about the polygamist sects of the American West, or about Utah's law, one may hope that a case comes up that does squarely present this issue, so that maybe we can finally have some guidance on Lawrence.

Parents' challenge to gay-positive curriculum dismissed

Massachusetts's federal district court on Friday dismissed a suit by parents challenging the use of gay-positive books in their children's elementary classrooms. The parents objected particularly to the presence and occasional use of storybooks such as King and King, Molly's Family and Who's in a Family?, which positively depict same-sex couples and families. Since the parents believe that homosexuality is immoral, they claimed that the curriculum violated their right to raise their children and to exercise their religion.

In a strict sense, the dismissal in this case breaks no new legal ground. The district court was bound by First Circuit Court of Appeals holding in Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st Cir. 1995), which held that "In Brown, the First Circuit held that the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent's religious beliefs do not violate their First Amendment right to exercise their religion."

The district court's view of Brown as indistinguishable from the present case, however, is significant, and its discussion of the interests of students who have queer parents or may be queer is even moreso.

Brown concerned a high school assembly in which an outside presenter used a particularly salacious approach to promote safer sex. (Very much the sort of edgy presentation I once gave to college students, actually. While the use of such an over-the-top approach with high school students surprises even me, I've no doubt that parental objections directed to school authorities would be sufficient to ensure a more toned-down approach in future.) That the present case concerned elementary students might at first glance suggest that more deference to parents is warranted, but Brown's holding, based in essence on the discretion required by all public schools, applies equally at all levels. Brown's holding has been followed by the other circuits, and the district court was right not to deviate here.

The court noted multiple reasonable bases for the inclusion of positive discussions of queer families in the curriculum: fostering mutual respect in a diverse nation; eradicating past discrimination; preventing future discrimination; and creating a learning environment in which queer students and students with queer parents can excel.

But its most interesting comments concerned the future of this dispute outside of federal court. The parents are free to pursue in state court a claim that the curriculum violates a state law guaranteeing a parental opt-out for any curriculum that "primarily involves human sexual education or human sexuality." The State argues that the statute does not apply. The court urged the parties to seek a compromise out of court, but acknowleged that

Finding a reasonable accommodation may be a challenging task. Allowing parents to exempt their children from classes primarily involving human sexual education may not injure the value of those classes for the students who remain. However, as Ralph Waldo Emerson wrote in his journal, " 'I pay the school master, but 'tis the school boys that educate my son.' " [...] An exodus from class when issues of homosexuality or same-sex marriage are to be discussed could send the message that gays, lesbians, and the children of same-sex parents are inferior and, therefore, have a damaging effect on those students. Cf. Brown v. Board of Education, 347 U.S. 483, 494 (1954). It might also undermine the defendants' efforts to educate the remaining other students to understand and respect differences in sexual orientation.

An opt-out for sex ed risks no implied message about any particular group of people. A similar treatment of any discussion of same-sex relationships has quite different applications. The court's citation to Brown v. Board here is wholly appropriate (notwithstanding subsequent criticism of the education studies cited in that case), but nonetheless amazing.

This dismissal will almost certainly be upheld on appeal; it will indeed be interesting to see what, if any, compromise the parties may be able to reach.

Parental rights in France

Yesterday France's Cour de Cassation denied a lesbian mother the opportunity to adopt her nonbiological child. My French is minimal, and I would love to see a decent translation of the rulings in the case. From what I can glean, however, the court hewed closely to France's Civil Code (it is a civil law country after all), which seemed to say that Mother A could not adopt with Mother B surrendering her parental rights. That, obviously, would not be in the best interest of the child, and on that basis the adoption was denied. The only other way both mothers could be full co-parents was for them to marry, currently not an option in France - but apparently a hot issue in the current presidential elections.

To further confuse things, I cannot quite figure out the difference between the above ruling and a ruling by the same court a year ago, which appeared to allow a lesbian bio-mom to delegate substantial parental authority to the nonbiological mother. (This based on what little I can make of the original French, along with a couple of news reports.) What this seems to mean is that a nonbiological co-parent in a pacte civil can take on a substantial parental role, but this is always subject to the (presumably revocable) consent of the natal parent. This sort of parental status is precarious indeed, and as breakup of the parents could destroy it. If you can help clarify matters here, please comment.

Going too far: Southern sex laws

I draw your attention to two seemingly disparate recent cases in Georgia and Alabama.

In one, the Eleventh Circuit upheld Alabama's law criminalizing the sale of sex toys. Yes, criminalizing, and yes, sex toys. Please note the baroque history of the case; the law has been vigorously defended by the Attorney General over the course of eight years, and this marks the fifth judicial opinion in the case. Your tax dollars at work, folks. The court held that "public morality" was a valid ground for criminalizing such activity, notwithstanding the apparent rationale of Lawrence v. Texas.

The Eleventh Circuit's rationale? It held that:

while the statute at issue in Lawrence criminalized private sexual
conduct, the statute at issue in this case forbids public, commercial activity. To the
extent Lawrence rejects public morality as a legitimate government interest, it
invalidates only those laws that target conduct that is both private and noncommercial.

This is a silly interpretation, but at least it means that, even with this law upheld, laws banning private use would fall, as apparently would laws against fornication, cohabitation, perhaps even adultery. But here's the rub:

Furthermore, we do not read Lawrence, the overruling of Bowers, or the
Lawrence court’s reliance on Justice Stevens’s dissent, to have rendered public
morality altogether illegitimate as a rational basis.

The court believed that the legitimacy of "public morality" as a legislative purpose was simply too old and hallowed to have been undone in Lawrence without the Supreme Court practically beating us over the head with it. This is the same logic they used in upholding a ban on adoptions by queer Floridians. Once again, one must ask: did Lawrence mean anything?

But on to Georgia -- where the state's highest court refused upheld the ten-year prison sentence of Genarlow Wilson for "aggravated child molestation," which apparently is a Southern legal term for what half of us did every other weekend in high school, namely being 17 and having consensual oral sex with a 15 year old peer at a party. (There is some suggestion the incident here was less than entirely wholesome; it's not clear from the press reports or court opinion. But Wilson was acquitted of rape, and the law at issue applies to the most clearly consensual acts.) Georgia's assembly recently changed this from a felony to a misdemeanor, but the high court held the change was not retroactive.

In both of these cases, there appears to be a broad public recognition that the result is unfair. In Alabama, a local newspaper's poll found 91% percent opposition to the toy ban, while another paper fired off a castigating editorial. In Georgia, legislators are proposing a statutory fix that would at least let pre-amendment cases like Wilson's get meaningful judicial review.

I am heartened to see public debate about cases like these, as I expect laws like these cannot withstand sustained public scrutiny. There may be a voting bloc to whom anything anti-sex looks good, but it is a narrow one indeed.

Utah rejects de facto parenthood

Utah's Supreme Court Friday flatly declined to follow Wisconsin, Washington, Massachusetts, New Mexico, Rhode Island, Pennsylvania, New Jersey and Massachusetts in recognizing a status of de facto or psychological parent at common law. It therefore denied standing to Keri Jones, a lesbian mother, to press for visitation rights for her young daughter. Jones had entered a civil union with the biological mother; had gones through insemination, prenatal care and birth as an intended parent; had been designated co-guardian of the girl, who shared both women's surnames; and helped raise for her two years before she separated from her partner, who subsequently had her stripped of guardian status and denied her all access to their daughter.

The court avoided any discussion of lesbian parenthood specifically, insisting that this was a major question of social policy to be decided by the legislature. It was the court's view that a common law parentage doctrine would inevitably be far too amorphous to determine a putative parent's standing (and thus jurisdiction), as it would essentially merge the question of standing with the merits of the case. It said that while the common law was always evolving, it could only work incrementally. And it further contended that it would be particularly inappropriate for the court to make this leap because "there simply are no bedrock principles" for determining de facto parentage. Apparently the doctrines (admittedly somewhat varied) of eight states do not count.

I find the argument that common law innovation can only be "incremental," and that recognizing de facto parentage would exceed these bounds, to be disingenuous. First-year tort law alone taught me that many of the "incremental" changes wrought by common law courts have profound affects. It seems to me that, in those areas that are still governed to a considerable extent by evolving common law, the court may always seek to adapt the law to new situations coming before it. The legislature can always abrogate their innovations.

A spirited dissent makes similar arguments, articulating a de facto test borrowing from other jurisdictions. It stated:

The child in this case is the product of a same-sex relationship, but she just as easily could have come from a more traditional one. Her opportunity to have the courts determine whether visitation with one of her parents is important to her present and long-term best interests should not be foreclosed. Indeed, children of dissolving, nontraditional relationships are just “as likely to become . . . victim[s] of turmoil and adult hostility as [are children] subject to the dissolution of a [traditional] marriage.” ... These children “need[] and deserve[] the protection of the courts as much as [children] of [] dissolving traditional relationship[s].” Id. To deny the forum of the courts for the resolution of children’s interests in nontraditional contexts would be to deny those children the protections afforded to all other children. This is contrary to “the public welfare and the true interests of justice.”

The dissent further noted that the legislature had not squarely considered the question now before the court, and thus it fell precisely within the "interstices" of the law (to use the majority's phrase) that the common law courts worked to fill.

What are the broader implications of this decision? Well, it reminds us that the strong trend toward nontraditional parental rights, at common law or by statute, is not an ineluctable one in the short term. Conservative state courts may still refuse to go this route, and from the point of view of the LGBT movement it may be wise not to litigate this issue at present in certain states. For my money, the court's assiduous avoidance of the "l word" suggests that even courts hostile to LGBT family rights are increasingly hesitant to take explicitly anti-LGBT positions when they justify their rulings facially neutral doctrinal terms. And that's progress of a sort -- for all the good it does Ms. Jones.