That gay hot spot, Cleveland, Ohio

Not a legal item, but I couldn't help commenting on today's article in the Plain Dealer, "Visitors bureau hoping to draw gay vacationers." It begins:

For some gay tourists, the thought of traveling to Ohio is about as pleasant as vacationing in Iran. Or Uganda. It's not a place they are thinking about going.
The Convention and Visitors Bureau of Greater Cleveland hopes to change their minds.

However well-intentioned, I can't help regarded this particular project as, well, comical. Ohio, with one of the nation's most sweeping anti-gay constitutional amendments? Ohio, where a few years back we elected an attorney-general fond of comparing gay people to pyromaniacs and livestock? And Cleveland? At least Columbus would sort of make sense. And if Cleveland thinks the queer community is flush with cash to ease its economic woes, they've got another thing coming.

But progress does wear some strange faces, and this is surely one of them. And hey, it's not that crazy; we just replaced our nutjob homophobic state officials with ones who, as much as anyone in Midwestern government dares, embrace LGBT rights. This initiative may even spark some positive local dialogue about how to create a more welcoming community.

Meanwhile, though, I wonder whether it's possible to sue a tourism board for misrepresentation...

Tenth Circuit Reverses Award for Intersex Inmate

Back in early 2005 I wrote about Miki Ann DiMarco's court victory against the Wyoming Department of Corrections- a victory the Tenth Circuit just reversed. DiMarco was a woman born with atypical sexaul anatomy.

The Plaintiff apparently was abandoned by her natural parents at birth and was raised in foster homes and institutions. According to the Plaintiff, her identity was often changed due to members of the community discovering her gender issue and her wanting the public to not judge her by her physical characteristics.

Dimarco v. Wyo. Dept. of Corr'ns, 300 F.Supp.2d 1183, 1189 (D.Wyo. 2004).

She eventually got into trouble for financial crimes. Prison authorities apparently flipped when, during processing, they discovered her condition. Curiously, the district and appellate courts would characterize that condition differently: both described her as intersexed and noted she had a small penis, but whereas the district court stated that she was born with no gonads at all, the appellate court stated in a footnote that she had had testicles that were removed in her youth. In any event, DiMarco had lived as a woman at least since puberty and had three ex-husbands, but prison authorities "determined [her] to be a male" and segregated her from other inmates.

Well, "segregated" looks to be a bit of a euphemism. According to the district court, she served 14 months "in segregated confinement which was at least as rigorous as the punishment reserved for seriously violent prisoners." The court contrasted the "almost dormitory style" of ordinary inmate housing with the "startling" and "almost dungeon-like" conditions in which DiMarco was kept. While the warden sought advice from higher-ups as to whether this situation risked legal liability and could better be addressed through a change of venue or sentence, the department bosses "apparently put their heads in the sand on this issue."

The court "reluctantly" concluded that DiMarco could not meet the very high bar for Eighth Amendment claims, it found a violation of her right to procedural due process. While segregation might have been a rational initial response to an unusual situation, continuing it for 438 days was "completely arbitrary and capricious." In addition to imposing nominal damages, the court scolded the authorities to developed a procedures for such uncommon situations in the future.

Last week, the Tenth Circuit, although "confident prison officials could have done better," held that the "petty deprivations" DiMarco faced did not present such an "atypical and significant hardship" as to violate due process. In other words, she'd been treated unfairly, but not unfairly enough.

While the appeal was pending, DiMarco died, and her estate must now deal with her legal expenses. While it may be too much to hope that prison officials elsewhere will take a lesson from a case in which the state ultimately prevailed, one can at least expect that Wyoming officials will now think twice before treating gender-variant people so carelessly. A more interesting question is what courts have, and haven't learned in cases like this -- and that will be the subject of my next post.

Catholic adoption agences and same-sex parents

Here we go again. About a year ago, Catholic Charities of Boston clashed with state authorities over their refusal to include same-sex couples in their adoption services. This followed a proclamation from Rome that facilitating such adoptions was anathema, and CCB's sheepish acknowledgment that it had assisted adoptions for a several same-sex couples over the years. The state rebuffed the idea of an exemption for CCB, and faced with the loss of its license, the organization decided to cease all adoption services rather than offend Catholic doctrine.

This is an unfortunate outcome for all concerned -- you don't have to be one of those foretelling a massive train-wreck between gay rights and religious liberty in order to be saddened that this large, well-respected charity will no longer be provided this badly needed service to anyone. And now the same drama appears to be playing out in the United Kingdom. The Catholic Church is asking for an exemption from the UK's antidiscrimination law, and threatening to close its adoption services if it doesn't get its way.

While one is easily reminded of Catholic Charities' losing battles with contraceptive equity laws in California and New York, this conflict seems more stark. There, Catholic Charities wasn't being asked to directly participate in activity offensive to it, and it had some options open to it comply with the law without paying for contraception. With adoption, the organization is being asked to actually do something contrary it doctrine, no ifs, ands or buts about it.

Is there any way around this? Should we make religious exceptions for sexual orientation discrimination where we wouldn't even consider it for, say, race or disability? If so, why? As I have argued previously, I find a distinction based on "immutability" untenable. It seems to me that the relevant difference is that more religious people and institutions believe in anti-gay discrimination than in any other form of illegal discrimination, with the possible exception of gender discrimination. While one could argue as a practical matter for recognizing such a numerical difference in law, this unprincipled move to me unjustified.

During a recent lunch-hour talk on this subject at my law school, I asked - off the top of my head - whether there might be some way to split the baby by way of remedy: rather than revoking its license, the government could impose a substantial, annual fine on Catholic Charities for engaging in discrimination. That way, the state could retain the normative benefit of its proscription on discrimination; CC could continue to provide services without violating its conscience; and the cost of continuing to do so would ensure that any organization making use of this "exception" was motivated by genuine religious principle.

The faculty member giving the talk found my (admittedly half-baked) idea intriguing but ultimately unavailing. Wouldn't this just make everybody unhappy? But I still think it might work. Consider Bob Jones University v. United States, in which the Supreme Court upheld the revocation of tax-exempt status from BJU because it banned interracial dating on campus. This action imposed a financial punishment on the school, and heightened pressure from society to abandon the policy, which it ultimately did, years later. While you could view this as a coerced conversion -- just as you could with Wilford Woodruff's 1890 "revelation" on polygamy -- it seems to me that BJU's leaders really did have a change of heart as to any religious reason for their policy. While the LDS Church leaders faced prison and the wholesale abolition of their sect, BJU could have chosen to stick to their guns and ride out the resulting difficulties. It seems to me that religious organizations that feel compelled to discriminate against LGBT people should also have that option.

It's not a totally satisfying solution, of course - probably it would leave everybody unsatisfied. But as far as I can tell, it's better than the available alternatives.

Criminalizing cohabitation

The proposed repeal of North Dakota's 117-year-old anti-cohabitation law highlights a continuing nuisance in seven states (North Dakota, Florida, Michigan, Mississippi, North Carolina, Virginia and West Virginia). North Dakota's law makes it a sex crime for an unmarried man and woman to live together (though it's not clear from the Associated Press story whether a conviction requires sex offender registration). With recent data showing 95 percent of us have had premarital sex, and with nearly 4 percent of North Dakotans apparently in violation of the law at present, this law has the potential for a real boom in prison construction.

But while people often dismiss these laws with a smirk by saying, "Oh, yeah, but they're never enforced," these are not laughing matters. As with other "morals" laws, the real harm here isn't in the very rare prosecution but in the use of the law to justify arbitrary discrimination. The AP story lists some alarming examples:

In West Virginia, a former prison inmate is challenging the state's anti-cohabitation law because it delayed his parole from prison on forgery convictions. Officials rejected William Stanley's plan to move in with his fiancee after his release.
Last September, a North Carolina judge ruled the state's law was unconstitutional, in a lawsuit filed by a woman who lost her job as a county sheriff's dispatcher because she was living with her boyfriend. The decision was not appealed.
...
In one case, a Norfolk, Va., day care operator faced losing her license because she was living with her boyfriend, but the Virginia Department of Social Services renewed the license when the ACLU agreed to represent her, Willis said.

And in case there was any lingering doubt among heterosexuals that the social conservative agenda includes your personal life, too:

Tom Freier, a spokesman for the North Dakota Family Alliance, said
repealing North Dakota's anti-cohabitation law would signal that the state
doesn't value marriage and the societal benefits it brings.

Overturning laws like this in the courts would presumably be (except, perhaps, for questions of standing) easy enough. It seems clear enough that they are unconstitutional under any of the competing readings of Lawrence v. Texas, but you needn't go any further than Eisenstadt v. Baird; it's hard to distinguish banning contraceptive use by unmarried couples from banning unmarried coupledom itself. A more interesting challenge would be under the Equal Protection Clause: these statutes discriminate against heterosexuals, because by their terms they only apply to male-female couples. And while there might be an argument there about discouraging out-of-wedlock births, I'd really like to see an attorney-general making it.

Still, I'd much rather see legislators stand up and reject these laws and the censorial attitude behind them.

Speech that "might start a fight" (abortion goes to school redux)

A recent post discussed a suit in which a middle school principal barred a student's anti-abortion leafletting. Another, similar case, also handled by the Alliance Defense Fund, was recently settled. There, the principal offered a potentially sturdier justification: such controversial materials "might start a fight." Yet this case was apparently still a loser for the school, probably because the danger was purely speculative. Whatever you make of the reliance in Poway on studies showing academic difficulties for LGBT students, the Poway school district was in fact being contemporaneously sued over severe anti-gay bullying. Though on the facts of Poway this didn't translate into a real threat of disruption from the mean-spirited t-shirt at issue -- the decision instead relied on the "rights of others" prong of Tinker -- this sort of existing, documented local problem of hostility between students over a particular issue illustrates the sort of situation that could justify censorship on the basis that student speech "might start a fight." (For more discussion of Poway, lotsa links here.)

Follow-up on MLK Day post

I won't often post simply for the sake of links, but I did want to draw attention to the latest Blawg Review, which follows an MLK Day theme and links to MLK-related blawg posts all over.

Wills, adult adoption, and homophobia

What's so interesting about a hyper-technical adoption decision from Maine's Supreme Court? Not much, to be honest. But the story of the wealthy lesbian couple behind it is.

My wills and estates course is fascinating, despite the fact that the cases so often amount to squabbling among the wealthy about money they have little use for, because they so often hinge on personal relationships, and courts' evaluation thereof. Nowhere is this better illustrated than where nontraditional relationships are involved, be they same-sex, interracial, or of some other kind that relatives or courts are disinclined to look favorably upon. No wonder that estate planning is a major concern for same-sex couples.

This case suggests the anxieties even materially privileged same-sex couples must contend with in the absence of equal rights. Moreover, it illustrates why adult adoption is not a workable solution (even in the handful of places where it exists) -- but then, there are no wholly satisfactory solutions short of equality. Perhaps one modest step that could be pursued in more conservative states, and which would benefit everyone but most especially same-sex couples, is adopting an alternative process to probate one's own will while alive, as a few states like Ohio do. Through this process, couples who have reason to fear a will contest based more on homophobia than legal merit could force relatives to speak now or forever hold their peace.

Criminal sexual conduct

In November, the Michigan Court of Appeals decided that a drug dealer could be charged with the additional felony of "criminal sexual conduct" when he exchanged drugs for sex. The court found that by its terms, "criminal sexual conduct" could be charged along with any felony, even a nonviolent one. The statute prohibits any sexual conducts that "occurs under circumstances involving"; the Court of Appeals interpreted this to mean that there must be a "direct interrelationship" between the sex and the felony, though they need not occur simultaneously.

Okay, so why do we care whether a drug dealer got an additional charge for, apparently, sexually exploiting an addict? Isn't this a particularly troublesome form of prostitution?

First (and least), it seems just a trifle unfair that, instead of a prostitution-related offense, the defendant got a felony charge that was clearly intended for violent crimes and can carry a much more serious sentence than either prostitution offense or drug dealing. Criminal sexual conduct is punishable by any term of years or life in prison. MCL 750.520b(2)(a).

Second, and more significantly, there is the meaning of "circumstances involving" a felony. The court's "direct interrelationship" test does, happily, exclude circumstances where the only relationship is a random one, e.g., consensual sex between two hostage-takers during a siege. Indeed, the court suggests that even a sexual relationship with a drug buyer would not be included unless there is but-for causation. This is reassuring -- consensual sex shouldn't be used to trump up charges -- but some fine points of proof may remain.

Third, the court's opinion points out that since any felony counts, and adultery is in all circumstances a felony in Michigan, this crime necessarily occurs in any case of adultery! As the Detroit Free Press helpfully points out, Michigan's attorney-general is admittedly an adulterer and, under this law, eligible for serious prison time. (Thanks to Howard Bashman for the link.)

I previously wrote about the propriety of adultery laws here and here.

The AG's spokesman insists, of course, that the idea of locking up his boss is "nutty" and even "hallucinogenic." But why should that be, if he has clearly violated not one but two criminal laws? I suppose -- political explanations aside -- it is because laws like this are not meant to be used in every instance where they apply. Sodomy laws are still on the books in some places because Lawrence v. Texas appears to permit their use where coercion, minors, or public conduct are involved, even if these are not elements of the offense. Sodomy, "criminal sexual conduct," and potentially adultery, are handy shortcuts for prosecutors when they lack solid proof for a rape or sexual assault charge.

Such shortcuts, I believe, are intolerable. If a particular circumstance is what makes an offense morally culpable and constitutionally punishable, it must be codified, charged and proved.

If "criminal sexual conduct" is defined as narrowly as it seems to be by the court, such circumstances will always be present in the form of "direct interrelationship" with a felony -- unless of court that felony is adultery. One can still question, as the Court of Appeals did, whether the same, potentially unlimited punishment should apply regardless of whether the felony was a violent one. But perhaps -- not likely, but perhaps -- this decision will spur Michigan's lawmakers to reconsider also the criminalization of adultery, which highlights the sexual hypocrisy of our society may, on occasion, inflict real public harms for private indiscretions.

Martin Luther King, Jr. Day and the Legacy of Bayard Rustin

[In honor of the Birthday of Martin Luther King, Jr., I am republishing here (with minor edits) an essay first seen in 2005 in The Docket, Case Western's law school newsletter. In honor of the holiday, I am also making a contribution to the Sex Workers Project (which I discussed in an earlier post).]

This time each year the nation pauses to contemplate the legacy of Dr. Martin Luther King, Jr. We congratulate ourselves on our nation's progress; we renew our resolve to work for equality and social justice; and, perhaps most of all, we debate just what that legacy means, and how it relates to the pressing issues of the day. Now that Dr. King, once a controversial risk-taker and an enemy of the government, has belatedly taken his place as a symbol of American freedom, we argue over what he would say about affirmative action, national security measures, the war in Iraq, and gay and lesbian rights.

It is perhaps on this last issue that our debates remain most contentious; even King's family members take public stands on opposite sides of the issue. The fallen leader's niece, Alveda King and youngest daughter, the Rev. Bernice King, recently spoke at King's grave for a demonstration denouncing same-sex marriage and any attempt to link it to King's legacy. Around the same time, Coretta Scott King, his widow and still a formidable activist, as well as his former student-activist colleague Rep. John Lewis, invoked that same legacy as vocal advocates of marriage equality. Son Martin Luther King III, meanwhile, denounced homophobia but declined to take a stand on marriage.

But perhaps more significant on this day of reflection than the fractured current positions of King's family and colleagues is the life and work of the man who masterminded the historic March on Washington for Jobs and Freedom, chronicled in the 2003 biography Lost Prophet: The Life and Times of Bayard Rustin. (Randall Kennedy wrote this lengthy, critical review of the book in The Nation.)

A lifelong activist for peace and equality, Rustin organized sit-ins and even a proto-Freedom Ride against segregation as early as the mid-1940s. When he heard of the Montgomery bus boycott, Rustin rushed to meet its leader, and quickly became the much-younger King's mentor and confidante. Indeed, Rustin, a devoted student of Gandhi, taught King practically everything he knew about the philosophy and strategy of nonviolent political action.

But Rustin's homosexuality, known and generally tolerated among his activist colleagues, quickly became a political liability for the blossoming civil rights movement. In that age of shame and secrecy, furtive trysts with relative strangers were the only kind of affectionate connection available to most gay men and America -- rendezvous local police were ever eager to target.
On a handful of occasions Rustin was the victim of such arrests, and foes of King et al eagerly leapt upon them to blackmail the movement. A Black moderate alarmed by King and Rustin's disruptive tactics, Rep. Adam Clayton Powell threatened to charge the two with having an affair if they went ahead with plans for a march on the 1960 Democratic convention. Outraged by the upcoming 1963 March on Washington, segregationist Senator Strom Thurmond -- whose unsteady relationship with his illegitimate Black daughter was detailed in her recent memoir -- brandished one of Rustin's arrest slips on the Senate floor, denouncing the March and the movement as the machinations of a sexual pervert. Thurmond had obtained the years-old document from FBI Director (and rumored closet case) J. Edgar Hoover.

Though King stood by Rustin in internal debates on this matter, Rustin insisted on remaining out of the limelight and, eventually, on distancing himself from King and SCLC. He largely accepted that society was not ready to accept him -- though at times he resented being singled out for his sexual liaisons while King and others in his circle were openly adulterous.
Though active for the rest of his life in campaigns against the war in Vietnam, Apartheid in South Africa, and poverty in America, and buoyed by finally finding in the late 1970s a loving life partner, Rustin's career after the March was something of an anticlimax. It was not until the 1980s that, at the urging of his partner Walter Neagle, Rustin began to advocate for gay and lesbian rights. Just a year before his death in 1987, Rustin declared that, "the barometer for social change is measured by selecting the group which is most mistreated," and that in the '80s, "the new 'niggers' are gays."

A civil rights activist long before Brown v. Board, today Rustin would recognize across America a kind of sequel to the social and political backlash that accompanied that decision and that movement's coming of age. Just as Brown and Black protests gave renewed passion to American racism even as it was in decline, so today forces in our nation mobilize with renewed fervor against gay and lesbian equality. Like Gov. George Wallace, and the young segregationist preacher Jerry Falwell, these forces are unwilling or unable to recognize that none of their temporary victories can prevent their ultimate defeat. Indeed, the campaigns against marriage equality may be a kind of long last stand in a generation-long war of attrition.

Without doubt, the struggle for gay and lesbian equality is not the same struggle, its history not the same history, as the long and continuing struggle for Black equality. Some of the most important differences stem from the changes wrought on America by the latter. But the crucial parallels, embodied in the life and work of Bayard Rustin, are clear to see, as it is that Rev. Falwell's eager apologies for his former racist stance will be echoed in the future by his colleagues today.

Married names and gender equality

Look that this young couple. Damn, they're cute. And they're suing the state of California, which if you ask me makes them even cuter. He wants to take her name, which seems simple enough. For women getting married, there's little more to it than checking a box. But for marrying men, there's lots of paperwork, a court appearance, and a $300 fee. The SoCal ACLU is on the case.

Legally, it seems like an open-and-shut case: this is nothing more than a reflection of outdated gender norms, with no permissible purpose. While grooms might take advantage of a change in the law, equal treatment here is a no-brainer. But I will be watching this case with interest, for a number of reasons. I'm curious to see:

• What arguments (if any) California makes in defense of different treatment;
• Whether social conservative groups take interest or get involved, and what they will say;
• Whether the case will spark much public discussion;
• Any crossover with discussion of the pending CA same-sex marriage case; and,
• Whether any legal or legislative action will follow in the 43 states with similar laws.

As an aside, it has never ceased to amaze me just how many women still swap their own name for their husband's. This is not to criticize the practice per se -- after all, it's a deeply personal matter, and a complicated one. I suppose what baffles me is how automatic it still is, as if there were no serious alternatives. Which in turn makes me wonder whether the Bijons (above) are getting a hard time, or pats on the back, from their families and friends.

Why "Polymorphous Perversity"?

The term was originally coined by Sigmund Freud in describing his theory of psychosexual development. Specifically, he used the term to describe the unfocused nature of pleasure-seeking in infancy, in contrast to the genital-focused (heterosexual) sexuality of the typical adult.

Over time, however, this colorful term has been lifted out of Freud's often silly, sexist psychoanalysis and acquired broader, colloquial meaning. Herbert Marcuse appears to have started this trend when, in Eros and Civilization, he employed the term to illustrate the goal of "sexual liberation": that is, a liberation of sexual intimacy and pleasure from the bounds of marriage, reproduction, gender, or other normative boundaries. Early gay radical activists took Marcuse's message, and the phrase, and ran with them.

As the sexual revolution faded and the queer rights movement got bigger and more moderate, the term became increasingly the property of cultural conservatives, who deployed it against harbingers of cultural decay from Jerry Springer to the Clintons. (See, e.g, here and here.) It is, of course, a particular favorite of Ann Coulter. It's irresistible, really, conflating as it does sex education, premarital sex, homosexuality, nonmonogamy, sadomasochism, pornography, and everything else that makes them feel nauseated and strangely aroused into one alliterative phrase.

In light of all this, I need hardly explain why this was the perfect name for this blog, which primarily will discuss the full range of human sexual variation as it plays out in the law. But please, don't confuse this blog with another, similarly named one on Blogger (<--not a work-safe link).

La ley de identidad de género (Spain)

I just finished going over final (I hope!) changes for my forthcoming Note with our journal's editor-in-chief. (Thanks so much for your patience, Laura!) In a last-minute post-script, I note that Spain is poised to enact just the sort of legislative reform I'm advocating -- that is, to allow legal recognition of gender transition without a surgical requirement. I just checked, and apparently this bill, having been passed by the lower house of the parliament and transmitted to the Senate, remains in committee there as of mid-December.

Tracking legislation in a foreign country whose language you have only the most tenuous grasp of is a challenge. I wish I could meaningfully peruse proposed amendments. Heck, I wish I could figure out the legislative calendar. All I know is, they'd better pass it, and they'd better pass it after we go to print!

Things kids "shouldn't be thinking about"

Oy vey. One thing I learned from a summer at Lambda Legal is that school principals have an over-inflated sense of what they can get away with -- as if it never occured to them that the Constitution could effect their adolescent fiefdoms. And so it is that I find myself siding with (oh God, I can't say it!) the Alliance Defense Fund, crafty nemeses of queers, heathens and fornicators everywhere.

This is only going on the complaint and the press release, of course, but it looks as if middle-school principal Jill Bush really stepped in it. She's being sued for allegedly busting up a student's anti-abortion protest and leafletting, despite having substantial notice from his mum and registering no objection before the fact. And having stepped in it, she proceeded to stick her it-encrusted foot in her mouth, explaining that "students shouldn't be thinking about issues like that at your age." Oh dear, I almost feel sorry for her.

My wife works for Planned Parenthood; until recently, she worked at a clinic that performs abortions. They see a lot of pregnant middle-school students (most of whom got pregnant under fairly disturbing circumstances). Any student who is old enough to get knocked up is old enough to know about abortion; she might be in a position to have one. And even if a school makes the grave mistake of not providing comprehensive sex education, students should be able to talk to each other about such matters, and to express whatever opinions about them they please. I shudder at the thought of emotionally vulnerable teens being proselytized about the sin of abortion, but a principal who can ban anti-abortion speech today can ban information on the safety and availability of abortion tomorrow.

And what's more, I can't see how Ms. Bush can position herself on the right side of Tinker v. Des Moines (student speech can be restrict only to prevent interference with school discipline or the rights of others). I suppose that the rule of Harper v. Poway School District (student's pointed anti-gay hate speech may interfere with rights of others), if upheld (as I think it should be) by the Supreme Court, might have application to anti-abortion speech if it takes the form of a fierce moral condemnation of students who have abortions (of which it seems safe to assume there's one, at least, in any large school.). But that is a narrow fact pattern presumably inapplicable to this case, and even it may be a bit of a stretch from Poway.

Of course, if I conclude this subject matter cannot be banned from this school, that begs the question whether any subject matter, regardless of viewpoint or manner of expression, may be banned from any school -- particularly an elementary school -- in its entirety on the grounds of age-inappropriateness. Are there some things, at some ages, that principals can lawfully declare students "shouldn't be thinking about"? If we can distinguish between the learning environment and level of student vulnerability of high schools and universities -- surely Poway's holding would be inapplicable to higher education -- why not between adolescents and younger children? I can think up arguments both ways here, and you don't often see student speech conflicts arising in elementary school to test them, do you?

Pagan Rome and the Establishment Clause

My latest vacation reading is God Against the Gods: The History of the War Between Monotheism and Polytheism by Jonathan Kirsch, pop religious historian, book columnist and media lawyer. It's a fascinating read, but what does is have to do with the law?

Kirsch argues that the persecution of Christians in pagan Rome largely stemmed from Christians' conscientious refusal to offer even the most token customary recognition of the pagan gods in the course of day-to-day transactions. "What the pagans found most provocative was not the fact that the Christians chose to worship their own deity in their own way," he writes on page 16, "but that they stubbornly refused to drop a pinch of incense on the altar fire or mumble a few words of prayer in honor of the Roman deities." In his recent book on the history of the Book of Revelation, he also notes early Christians' refusal to handle the coin of the realm, bearing as it did homages to the Emperor and the gods. In the eyes of the pagan majority, the Christians were refusing to engage in the simplest acts of "civic virtue," which he compares to the modern-day, monotheistic Pledge of Allegiance.

And it's this analogy, only briefly mentioned by Kirsch, that really grabs my attention. As described by Kirsch, these tokens of civic recognition of the Roman gods do sound like our own Pledge of Allegiance, coins with "In God We Trust," and prayers at public meetings -- what the Supreme Court calls "ceremonial deism." Which makes the early Christians sound a bit like contemporary Establishment Clause plaintiffs such as Michael Newdow.

Obviously, there are huge gaps in this analogy. Pagan Rome knew no formal separation of church and state, and it came to severely persecute the Christian dissenters. As Kirsch argues throughout, pagan-Christian conflict centered on the exclusivity that defines monotheism and so outraged pagans who expected all gods to be compatible. Plaintiffs challenging "ceremonial deism" are not engaging in civil disobedience for reasons of religious conscience, but using the courts to protest what they see as acts signifying monotheists as social and political insiders, and themselves as outsiders. (In this sense the early Christians more resemble Free Exercise plaintiffs such as those who wish not to use Social Security numbers.) Defenders of ceremonial deism today don't literally expect all citizens to embrace God, only to "recognize" Him.

Still, both conflicts concern religious minorities resisting tokens of recognition of the majority religion as a condition of civic life.

So, what does this analogy do for us? Perhaps nothing in particular beyond, "hey, that's interesting." Kirsch for his own part seems both to trivialize the early Christians' refusal to "go along to get along" and to criticize today's ceremonial deism. But for me, a look at pagan Rome highlights both the unfairness of infusing civic rituals with majority belief, even in minor ways, and the differing worldviews that make it so hard for those arguing over ceremonial deism to understand one another.

I welcome your thoughts on this post particularly since I know I am skimming over many aspects of centuries of early pagan-Christian conflict, some of which may be significant for the points raised above.

Ontario Appeals Court: three legal parents OK

Ontario's Court of Appeal on Thursday granted a lesbian mom's request for a declaration of parentage, without stripping the biological father of his parental rights. The two moms made this unusual petition in lieu of seeking a second-parent adoption, because that would have required Dad -- their friend, sperm donor, and a regular part of the five-year-old's life -- to surrender his parental rights. I originally wrote about this case back in 2003, when a lower court denied the petition on jurisdictional grounds. Frankly, I had thought nothing would come of this action. Howard Bashman's How Appealing blog (which I check compulsively) links to a variety of press items on the case.

I'm not sure what to think about this decision. To be sure, I think the outcome is a good one: the child (like many other children) really has three parents, and it is in his best interest that the law recognize this. Nevertheless, in a case like this I am much more sensitive to the argument that this is not a decision for the courts than I am with regard to same-sex unions and parents. While opponents claim that there are many unknown factors that should be studied and weighed by legislators, same-sex couples are, in every way that should concern the law, just like opposite sex parents. (Note the qualifier: I do not intend to take a position on whether queers are "just like" straights in other senses.) By contrast, multi-parent families do, simply by dint of numbers, arguably raise important and unfamiliar practical issues more properly within the purview of legislators.

That argument might be persuasive if this were a constitutional case. But the Court of Appeal here dismissed constitutional claims because they hadn't been raised below, and instead decided the case on the basis of parens patriae, a special kind of inherent jurisdiction in family case. Both court opinions in the case focused on jurisdiction, and the two courts basically disagreed on what kind of "legsilative gap" allowed decisions based on parens patriae. The appellate court held that, since the relevant statute was written a generation ago and its drafters had not even considered cases like this one, jurisdiction was appropriate. Under a doctrine like this, where courts are already given the right to go beyond statutory law in dealing with unforeseen cases, the court's chartering these unfamiliar waters seems wholly appropriate. After all, if the court had refused to consider the merits, and the family been forced to go to the legislature, they would remain in a vulnerable position in the meantime. This, I think, is precisely the point of a doctrine like parens patriae. Note that no such doctine would apply to a case concerning a right to polygamy.

Curiously, while both courts incorporated policy considerations into this analysis, the appellate court did not discuss at all any special considerations raised by the three-parent situation, but instead relied upon the case law on lesbian mothers. I am very curious to see what comes of this case in terms of public and political reaction, and whether there is any further litigation. At first glance, the latter seems unlikely inasmuch as the only parties to the case are the three parents. But it would seem that now the legislature is on notice of this "legislative gap," and could act on it one way or another.

A sex workers' rights legal agenda?

It's been estimated that hundreds of thousands of women sell sex in the United States. See, for example, Ann M. Lucas, Race, Class, Gender, and Deviancy: The Criminalization of Prostitution, 10 Berkeley Women's L.J. 47 (1995) (citing widely differing estimates from the 1980s). Thousands of men do, too. A catalogue of the problems facing these folks could consume this fledgling blog utterly. A 2003 report of the Urban Justice Institute found street prostitutes in New York City facing extreme poverty, addiction, deportation, lack of police protection, and violence from both customers and police. By far, the greater number of illegal sex workers do not work off the streets -- finding their clients instead through brothels, bars, advertisements, or the like -- but a subsequent report found similar problems among these indoor sex workers. Both groups also faced extreme social isolation -- their precarious situation and the stigma of their work made it extremely difficult to maintain family relationships, access needed social services, or find "straight" employment. Even among those few who earn a comfortable living selling sex, the danger, isolation, and difficulty of changing professions remain.

For further explication of these problems, differing theoretical approaches to them, and also of the differing forms prostitution takes, see Elizabeth Bernstein, What's Wrong with Prostitution? What's Right with Sex Work? Comparing Markets in Female Sexual Labor, 10 HASTINGS WOMEN'S L.J. 91 (1999); Susan E. Thompson, Note, Prostitution--A Choice Ignored, 21 Women's Rts. L. Rep. 217, 240 (2000); and Gregg Aronson, Note, Seeking a Consolidated Feminst Voice for Prostitution in the US, 3 Rutgers J. L. & Urb. Pol'y 357 (2006).

In response to these problems, tiny but determined sex workers' rights organizations have formed to conduct education and advocacy, and there are organizations in a handful of cities, like HIPS in DC, providing targeted social services to sex workers. But as far as I am aware, Urban Justice Institute's Sex Workers Project in New York is the organization providing targeted legal services to sex workers. This is a shame, for it is clear that such services are badly needed.

What would a sex workers' rights legal agenda look like?

The agenda I imagine would largely complement the harm-reduction work of social service organizations. This work -- meeting the material needs of vulnerable individuals -- would, I think, be consistent with agnosticism or even limited support for the criminalization of sex work. There is in any event little likelihood that impact-oriented litigation could achieve substantial changes in the criminal laws. (For a more optimistic view, however, see Belkys Garcia, Reimagining the Right to Commercial Sex: The Impact of Lawrence v. Texas on Prostitution Statutes, 9 N.Y. City L.Rev. 161 (2005).) Nevertheless, in my view a sex work legal agenda would be incomplete without a law reform component. This includes advocating for legislative change, but it also should include some litigation components. There are other laws that make life hard for sex workers besides the prostitution statutes. Prominent among these are recent municipal laws, called "exclusionary zones," or "no-prostitution zones," which impose a kind of limited banishment for those previously convicted of prostitution. Laws like this -- and whatever other means local politicians may dream up to run even former sex workers out of town -- can and should be challenged. For details, see Gordon Hill, The Use of Pre-Existing Exclusionary Zones as Probationary Conditions for Prostitution Offenses: A Call for the Sincere Application of Heightened Scrutiny, 28 SEATTLE U. L. REV. 173, 185 (2004).

For the most part, constitutional challenges to restrictions on legal sex work (particularly exotic dancing and pornography) are already pursued by the private bar, thanks to the vested interest of adult business owners. Still, draconian regulations of the sort proposed last year in Ohio can hurt workers even more than owners, and thus there may be place in my imaginary agenda for this work as well.

Legal concerns specific to sex work:

• Anti-violence. This is perhaps the most important agenda item, and it is a difficult one. Violence against sex workers is epidemic, and there may be only so much litigation can accomplish so long as illegal and quasi-legal sex workers have such strong disincentives to seek police protection. Nevertheless, I see a few possibilities. One, of course, is advocacy for more consistent police protection from, and prosecution of, violence against sex workers. Another obvious one is civil suits against individual officers as well as police departments and municipalities when officers themselves are responsible for assault or sexual violence. Additionally, I wonder whether suits along the lines of Brandon v. Richardson (in which Brandon Teena's mother successfully sued the county and sherriff for failing to prevent his murder) might have a place here. Though cases in which the requisite showings of knowledge and indifference can be made may be rare, they will arise, and could provide effective pressure to take sex workers' safety seriously.
• Criminal defense. The adequacy is public or court-appointed defenders is, I supose beyond the scope of this post. But sex workers need more here than defense against prostitution charges. They also need competent defenses against bogus or trumped-up charges, against attempts to twist catch-all offenses to criminalize sex workers' very existence, and against similar misuses of the law against legal sex workers (be they exotic dancers or dominatrices). Where in a given jurisdiction these practices become regular, test cases should be selected to set precedents against them.
• Legal advice. One trend that showed up in the Urban Justice reports was the need for legal advice. It's perhaps a no-brainer that sex workers, legal, illegal or quasi-legal, need solid advice about what is and isn't illegal in their area. They also need advice about their rights when dealing with police and when taken into custody. Furthermore, they need advice about the collateral consequences of prosecution for their immigration status, parental rights, welfare benefits, et cetera.
• Employment. Legal sex workers who are not freelance -- this mainly means exotic dancers -- need help with issues of mostly garden-variety labor and employment law: wages, hours, benefits and working conditions. While some state government agencies are taking an interest here, it is unclear to me whether this area is lucrative enough to attract adequate service from the private bar. This student paper illustrates these issues as they arise in Oregon. For more, see Margot Rutman, Exotic Dancers' Employment Law Regulations, 8 Temp. Pol. & Civ.Rts. L.Rev. 515 (1999).

Sex workers are also in need of general legal services from practitioners who understand the special problems that may arise for them in these areas. Immigration, domestic violence and family law loom large here, but sex workers may need help in all aspects of what's come to be called poverty law.

Who would fill the void?

As I have noted, at present an agenda such as this has no champion. But it is not hard to imagine how, and by whom, it could be put into action.

• Established social justice organizations could get involved. Some of these issues would fit will within the existing mandates of civil rights groups like the ACLU, to wit, impact litigation to protect constitutional rights. Much of this work could also be recommended to groups focused on the rights of particular constitutuencies who are disparately affected by these problems: racial minorities, immigrants, and transgender people. While there would inevitably be some protest from members of those communities claiming that these are "not their issues," a principled case can be made that they are.
• Legal services organizations can build their competence to serve sex workers. Much of the work that needs doing is within the basic competence of LSOs, but they will probably need to do more, namely, getting educated about who sex workers are and the problems they face. Needless to say, anti-sex worker bias is the first hurdle. Potentially, social workers or even sex workers' rights activists could assist in this effort.
• Sex-worker specific organizations or projects would be ideal. At present, the Sex Workers Project exists as a model, though the agenda I propose is doubtless broader than its mandate. Existing social service outfits like HIPS are already in the business of helping sex workers, and if they had the means and could recruit the expertise, they could add legal advocacy to their roster of services. (I do wonder whether it would be difficult, as a practical matter, to serve both illegal and legal sex workers, as the latter may wish not to be associated with the former.) Such projects will probably be difficult to establish and difficult to fund; a truly ideal situation might combine the stability of affiliation with an established organization with a broader mission with leadership or significant input from former and/or current sex workers.

This is big talk, and I can only hope that somebody more knowledgeable and more able than I will hear and run with it. I only know that, somehow, lawyers need to be doing this work.

DADT: Deference for whom?

When the constitutionality of "Don't Ask, Don't Tell" (DADT) was challenged in multiple lawsuits in the 1990s, the federal courts upheld it by invoking "the deference required in cases involving the military." Ostensibly, the courts were deferring to Congress in its judgments of military policy, but they also referred frequently to the judgments of "the military," meaning presumably those of leading officers and Pentagon officials. The distinction hardly mattered, since courts often defer to Congress or to specialized agencies with regard to policy judgments, and in the case of DADT the Congress and the military appeared to agree.

It is not clear that this is still true. At the 2006 Lavender Law conference, a panel on "Don't Ask, Don't Tell" underscored just how far both military leadership and the rank and file have come in understanding and accepting queer servicemembers. For example, one of the speakers noted that Pentagon spokepersons have stopped defending DADT on its merits and started saying, more or less, that it's Congress's policy to change if it pleases. As to the rank and file, this trend is amply demonstrated by the recent Zogby poll, which showed that the presence of queer servicemembers is widely known and widely accepted. And a recent op-ed by the former chairman of the Joint Chiefs demonstrates the change of heart among military leaders.

It is not unlikely that the new Congress, or its successor, will repeal DADT; a bill was introduced in the 109th (though under GOP leadership it couldn't get a floor vote). But even if the votes are there, Congressional leaders may choose to defer this contentious issue for months, even a few years, hence. In the meantime, I wonder whether the constitutional analysis has changed. To wit: whereas courts appeared before to defer to a consensus between Congress and the Pentagon, that "consensus" now appears one-sided. (I don't remember whether this issue was mentioned at the LavLaw panel.)

If it could now be shown in court that the weight of opinion within the military is against retaining DADT, would deference to Congress alone be sufficient to uphold it? I'm not expert on the relevant case law, to be sure, but I'm not aware of any case where courts evaluated a military policy Congress adopted or maintained over substantial disagreement from the military. Does Congress need to rely on the advice of military leaders to get this deference? Or could the weight of military opinion render Congress's judgment unreasonable, despite deference? The answer to me isn't clear -- I'd certainly welcome input from those more knowledgeable.