Anti-gay discrimination in NJ, Arkansas

Hunter of Justice reports:

The New Jersey Civil Rights Division has issued a Final Report finding that the Ocean Grove Camp Meeting Association discriminated against Harriet Bernstein and Luisa Paster by refusing to rent them a boardwalk pavilion for a civil union ceremony. OGCMA describes itself as "a ministry organization, rooted in Methodist heritage." ...

The agency found that the church was operating the pavilion as a public accommodation, not as a religious facility, evidenced by the fact that it rented it to any and all couples who wanted it for a wedding, regardless of religious affiliation, and had represented to the state that the pavilion was "open to the public" in order to obtain an exemption from property tax. (The group has now stopped renting the pavilion.) I am calling this an early stage in the case, despite the fact that it is the final agency action, because t...[T]he defendant's lawyer, the Alliance Defense Fund, is announcing that it will seek reversal of the decision in court.

Meanwhile, the ACLU has filed a challenge to the statute adopted by Arkansas voters on election day that bars adoption and foster care placement with any unmarried couples. The complaint alleges equal protection and due process violations on both federal and state constitutional grounds; the case was filed in state court....

Doubtless there will be more to come on both these cases in future months.

The NJ case underscores that just being a religious group is not enough to secure exemptions from the law, if you are actually operating as a public accommodation rather than a private faith-based association. The Arkansas case will be an interesting one to watch.

That blog also reports that the Alliance Defense Fund is threatening to sue to block a new legal ethics rule in Arizona that would require lawyers to pledge not to discriminate against clients on the basis of sexual orientation.

More sex offender rulings from California, NY

Recently I reported that the Georgia Supreme Court overturned a life sentence for failure to register as a sex offender. Now comes a similar ruling from the U.S. Ninth Circuit Court of Appeals (PDF), which holds that a sentence of 28 years to life, pursuant to California's "Three Strikes" law, is an unconstitutionally excessive punishment for the offensive of failure to update sex offender registration. As in Georgia, and in a previous California state court ruling, the court reasoned that a life sentence is grossly disproportionate because of the "passive," "technical" and of course nonviolent nature of the crime of failure to update registration. In this case, the defendant already was registered and had not moved, so his failure to update his registration didn't even lead to incorrect or missing information in the database.

As the Sentencing Law and Policy Blog notes, the fact that this ruling, unlike previous ones, comes from a federal appeals court is a big deal. Indeed, it may be the first time a federal appeals court has overturned a non-capital state sentence in recent memory, in part because the federal Anti-Terrorism and Effective Death Penalty Act mandates an extremely deferential review of state court judgements. Even more remarkably, the decision is authored by controversial Bush appointee Jay Bybee (yes, the nominal author, along with John Yoo, of the infamous detainee interrogation memos).

Meanwhile in New York, the state appellate court held that a lawyer's conviction of a sex offense doesn't merit disbarment, at least where that offense consisted of having explicit online chats with an adult posing as a minor and attempting to meet said minor, rather than any actual sexual act. The court reasoned that a public reprimand would be too lenient, but thatgiven the "inchoate" nature of the offense disbarment would be too severe. The court ordered the lawyer's suspension from the practice, over a dissent calling for disbarment and accusing the majority of "minimizing the acute danger of sexual predators."

Hook-up site not liable for connecting man with minor

The Sixth Circuit Court of Appeals has rejected a suit by a man who blamed hook-up site SexSearch.com for connecting him with a minor (PDF), thereby leading to his arrest for unlawful sexual conduct with a minor.

The man who brough the suit had sex with a young woman after meeting her on the site, where she had a profile seeking a "1 on 1 sexual encounter" with "a man who can last for a long time." The young woman, who was 14, reported the encounter to the police, who arrested the man. He claimed that SexSearch's failure to prevent a minor from using its site constituted a breach of contract, a fraudulent misrepresentation, an intentional infliction of emotional distress, an unfair trade practice, and/or a tortious failure to warn under Ohio law.

The appeals court rejected each of these claims in turn. First, while the site's terms of service stated that users must be over 18, the site nowhere promised to prevent minors from registering and using the site. Indeed, another part of the terms of services stated that they don't verify ages. More importantly, the plaintiff had no business relying on any representations about the ages of users, since any who had registered for the site could tell that the site owners took no steps to verify age. Moreover, the court found that the danger that minors will pose as adults online is an "open and obvious" one that doesn't require a warning.

The court also held that the site had a right to contractually limit its liability to the value of the contract, saying:

A SexSearch gold membership costs $29.95 per month. Given the nature of the service, which encourages members to meet in person for sexual encounters, SexSearch’s potential liability is nearly limitless. For example, arrest, diseases of various sorts, and injuries caused by irate family members or others may be the result of such hedonistic sex. When selling such services, then, it is commercially reasonable for SexSearch to limit its liability to the price of the contract.

While I agree with the result, I am bothered by the court's tone regarding "the result of such hedonistic sex." Matchmaking and sex can have all sorts of consequences - fair enough. That reasoning should apply to any sort of dating or social-networking site that wants to limit its liability, and yet the court seems to go out of its way to imply not only that the buyer should beware but the buyer deserves whatever he gets.

The appeals court declined to consider the impact of a federal law, relied on by the trial court, that limits the liability of website owners from liability for content created by users. The scope of that site-owner immunity provision is as yet unsettled, and the court refused to go there.

Adult Video News, an industry outlet, features predictably positive coverage of the decision, notwithstanding its sex-negative tone. Once again, h/t How Appealing, which offers some background on the case.

Honey, I bugged our bedroom

I asked my wife the other night whether, hypothetically, she would feel violated if I, her loving but perhaps unduly suspicious spouse, hid a videocamera in our bedroom and recorded her comings and goings without her consent. Of course! she said. What the hell is wrong with you?

Now, I said, clearly I wasn't going to do this, as I would have just given myself away. But, hypothetically, would she feel entitled to sue me for doing this? Would she expect to be allowed to do so? Would it matter whether we were a legally married couple? She said she thought she should be entitled to sue, but doubted the courts would permit it. Understandable.

I was pleased to be able to tell her that, at least in Iowa, she would have every right to sue me, legally married or now. So says the Iowa Supreme Court in last week's ruling in In re Marriage of Tigges (PDF). Here, the privacy claim was brought by a wife in the course of the couple's divorce. She claimed that her husband secretly taped her before and after their separation, and that although the recordings didn't show anything untoward, she nevertheless felt outraged and violated. The court ruled that she was entitled to damages, saying:

Whether or not Jeffrey and Cathy were residing together in the dwelling at the time, we conclude Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy’s expectation of privacy at such times is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time.... Any right of access to the bedroom held by Jeffrey did not include the right to videotape Cathy’s activities without her knowledge and consent.

There are three key elements to the court's reasoning: first, neither the marital relationship nor a common living arrangement mean surrendering any right to privacy; second, just because you let someone come in and see you sometimes doesn't give them permission to see you anytime and without your knowledge or permission (this is obvious really - like the rule that marriage is no defense to rape); and third, that consent to see is not the same as consent to videotape and possibly share.

The court further ruled that the videotaped spouse had a right to damages even though nothing untoward was recorded and no one else saw the tapes, saying: "The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the fact that Cathy’s activities were recorded without her knowledge and consent at a time and place and under circumstances in which she had a reasonable expectation of privacy."

The court noted similare rulings in North Carolina and Texas. In North Carolina, the court suggested that the expectation of privacy “might, in some cases, be less for married persons than for single persons,” but that “such is not the case . . . where the spouses were estranged and living separately.” That court didn't actually rule on the rights of married, cohabiting persons, however, and the Texas court agreed that whether the sposues are still cohabiting is irrelevant.

It seems as though I am posting a lot about the Iowa Supreme Court lately. First the indecent exposure case, then the marriage equality case, and now this. Thanks for keeping things interesting, Iowa.

H/t How Appealing.

Increased sentence for targeting trans prisoner

In White v. U.S., the D.C. Court of Appeals affirmed a sentencing enhancement for a prison guard who physically and sexually assaulted a transgender prisoner. The sentencing judge reasoned that the prisoner's trangender status constituted a "reduced physical capacity" under the D.C. sentencing guidelines, thereby meriting the tougher sentence. The appeals court said it would not decide whether trangender status is actually a form of "reduced physical capacity," because the D.C. guidelines are purely advisory, and it doesn't really matter whether judges interpret them correctly in a given case. The court nevertheless upheld the enhancement:

As the trial judge explained, White's sentence was intended to reflect his victim's particular vulnerability as a transgender inmate in an all-male prison unit and, we are satisfied, appropriately reflects what the government's evidence showed was the non-consensual nature of the encounter.

While I'm generally predisposed to favor more lenient sentencing, this strikes me as appropriate. "Reduced physical capacity" is a real stretch, since trans people aren't physically impaired in any way by virtue of being trans. But trans people are certainly especially vulnerable to abuse in prisons, especially given the dominant practice in the U.S. of housing inmates on the basis of their birth sex. And when a prison guard exploits that vulnerability, a sentencing enhancement may serve to deter such exploitation in the future.

More on "obscene" email convictions

I find the convictions based on cartoons and private, textual emails in U.S. v Whorley. quite disturbing, as do some other bloggers (even ones with whom I would disagree on a great many other things). But I don't blame the Fourth Circuit Court of Appeals. I blame the Supreme Court.
The result is appalling, but it is not that surprising, given three clear principles the Supreme Court has announced: First, words by themselves can support an obscenity conviction. At the appellate panel points out, the Supreme Court upheld a conviction based on words in a book on the same day it decided the landmark Miller obscenity case in 1973. Second, materials that cannot be defined as "child pornography" under the Court's precedents can nevertheless be defined as "obscenity." And third, the right to privacy that entitles individuals to possess obscene materials does not extend to sharing those materials with others over the Internet, which the Court treats as an "instrument of interstate commerce" regardless of the noncommercial context of its use.

Combine that with the inherent mushiness of the "obscenity" concept itself, and the dissenting opinion begins to look like more of a stretch than the majority. So it's not surprising that the dissent also calls that precedent into question, saying:

The Supreme Court’s attempts to define obscenity for over half a century, including its enunciation of differing standards for obscenity and child pornography, reveal one truth: a material’s obscenity, or lack thereof, ultimately depends on the subjective view of at least five individuals. Predicting how any person subjectively views material is impossible, an infallible truth that prompted Justice Stewart to pronounce a simple, yet honest test for identifying obscenity: "I know it when I see it . . . ."

Although I find it unlikely that the Supreme Court will reconsider any of these constitutional principles in the foreseeable future, Congress certainly can and should narrow the obscenity statute to a) exempt text, b) exempt drawings, c) exempt private, noncommcerial communications between individuals, or d) all of the above. Of course, that isn't a great deal more likely.

Fourth Circuit upholds obscenity conviction for private emails

You read that right. In the case of U.S. v. Whorley (PDF), the circuit panel held 2-1 that the obscenity statute applied to Mr. Whorley's private emails to another adult describing fantasies of sexual acts with children, and that this application of the law was constitutional. It did not matter, the courts said, the possessing obscene matter is constitutionally protected; that right does not extend to sharing it through private emails. The Internet is an instrument of commerce, and communications using it are not genuinely private.

It also did not matter, the court said, that the Supreme Court has held the treatment of prose and cartoons as "child pornography" unconstitutional; the same material could still be criminalized as obscenity.

Mr. Whorley is not a sympathetic guy. He has been twice convicted of receiving actual child pornography. But he has also been convicted for the textual descriptions of "obscene" matters in his private emails, as well as receiving "obscene" anime cartoons of minors engaged in sexual behavior. (He's also not a clever guy: he got caught doing it at his job at the Virginia Employment Commission.)

One of the two judges who made this ruling said he "share[d] some disquiet" regarding the email convictions, but that they were proper under governing law. The panel's third judge wrote a long dissent objecting to the email and cartoon convictions. The dissenting judge reasoned that (1) the text conviction violate the First Amendment, and (2) the cartoons were simply not covered by the relevant statute. The portion regarding the emails is worth excerpting at length:

The emails did not include any visual depictions or attachments containing child pornography of any type, and the Government does not allege that Whorley used the e-mails to convince or lure a child into any sexual activity. ....The economic and social justifications for regulating e-mail fantasies — even those involving activities that would be criminal if the fantasies were acted out — are minimal. Indeed, the harm, if any, involved in Whorley’s conduct is not readily discernible because the e-mails were written and exchanged for the sole "enjoyment" of Whorley and his counterpart. Unlike the facts in Ferber, this exchange of information did not have any economic consequences on the child pornography trade and real children were not harmed (or even discussed) during the "production" of these e-mails.

The majority resolves this issue by citing the well-known proposition that words can be obscene. ...However, simply because words can be obscene is not sufficient, on its own, to criminalize pure speech. Incest and sexual relationships between children and adults are distasteful subjects to most individuals, yet writers routinely publish such material....The expert provided the district court with numerous examples of recognized writings involving child sex with adults and/or incest including: Sigmund Freud’s writings on incest and fantasies, Alice Walker’s The Color Purple, and William Faulkner’s Absalom, Absalom!...

One need not delve into the rare archives of the Library of Congress to find works describing an adult’s sexual fantasies about children. Some of these writings, Lolita for example, are seated at the head table of great literary works of all time. ... The subject of adults fantasizing about having sex with minors, or alternatively, adults actually consummating relationships with children, is not limited to popular literature and academic discourse. A central theme of the Academy Award winner American Beauty is a forty-two year old man’s sexual fantasies about his teenage daughter’s high school classmate....

From my perspective, the iconic books and movies above render unsustainable the claim that writings describing sexual acts between children and adults, generated by fantasy, have no demonstrated socially redeeming artistic value. If the writers of the aforementioned books and movie scripts e-mailed the sections of their work that described the sexual relationship between the minor and the adult to a willing recipient, presumably both the writer and the recipient could have been subject to prosecution for sending or receiving obscene material under § 1462, an untoward result....

Incursions on our citizenry’s right to be free from governmental regulation of speech are viewed with skepticism and scrutiny....Whorley’s e-mails are pure speech at the very heart of the First Amendment....Frankly, I am hard pressed to find a permissible governmental interest that is served in suppressing Whorley’s emails as such an action would not aid in "protect[ing] the victims of child pornography" or the "destr[uction] [of] a market for the exploitative use of children."The most obvious interest the government might have in suppressing such speech — that such fantasies may "whet[ ] the appetites of pedophiles and encourage[ ] them to engage in illegal conduct," has been soundly rejected by the Supreme Court.

Today, under the guise of suppressing obscenity — whatever meaning that term may encompass — we have provided the government with the power to roll back our previously inviolable right to use our imaginations to create fantasies. It is precisely this unencumbered ability to fantasize that has allowed this nation to reap the benefits of great literary insight and scientific invention. The Constitution’s inviolable promise to us is its guarantee to defend thought, imagination and fantasy from unlawful governmental interference regardless of whether such thoughts, imaginings, or fantasies are popular with the masses. It is in these moments that our grip on the rule of law and our fidelity to constitutional values is tested.

The dissenting judge also had some things to say about the Supreme Court's obscenity doctrine in general, which deserve their own post.

In my lifetime, prosecutions for obscenity based purely on text are rare. The only other case I know of regarded much media comment and resulted in a guilty plea.

H/t to How Appealing and the Volokh Conspiracy.

More links from Int'l Day to End Violence Against Sex Workers

Crackdowns on Sex Work Make Things Worse

You Think You Don't Know Us, But You Do

International Day to End Violence Against Sex Workers

Yesterday was the International Day to End Violence Against Sex Workers, an annual event involving grassroots vigils, marches and other events in North America, Europe, Australia and Hong Kong. As part of the December 17 activities, I joined the first National March for Sex Workers Rights. It was a modest affair, but one that brought new visibility to the (inextricably intertwined) causes of ending violence against sex workers and decriminalizing prostitution. You can see my coat and my right hand in a photo in the Washington Post's coverage, holding a banner that reads "OUTLAW POVERTY NOT PROSTITUTION."


In addition to marching through the streets and in front of the Department of Justice, the marchers delivered a letter to President-Elect Obama, calling for actions to stem violence against sex workers, and especially for involving sex workers themselves in policymaking.

Much more media coverage and video from the DC march is at Bound, Not Gagged - the blog of the Desiree Alliance.

More on December 17 and sex worker rights from around the blogosphere:

Stopping the Terror: A Day To End Violence Against Prostitutes

Audacia Ray's Speech from the NYC Vigil

Remembering violence against sex workers

International Day to End Violence Against Sex Workers in the United Kingdom

In this spirit, I urge readers to contribute to the Sex Workers Project of the Urban Justice Center, which provides legal and social services for sex workers in New York City, and advocates for sex worker rights.

Australian court convicts for virtual child porn

An appellate judge in New South Wales, Australia has apparently ruled that it was proper to charge a man with possessing child pornography on the basis of cartoon drawings of characters from The Simpsons engaged in sexual acts. You can read excerpts from the decision at the Media Law Prof Blog. It is densely written opinion, apparently based entirely on statutory interpretation.

Australia's constitution does not contain an express freedom of speech, and the courts there have apparently recognize a much narrower right to political speech than is enforce in the United States. Here in the United States, the Supreme Court has previously held unconstitutional the application of child pornography laws to "virtual" depictions of minors.

The NSW judge relied in part on a rationale the U.S. high court expressly rejected: that cartoon depictions of children help perpetuate a market for actual child pornograhy. He also suggested that this holding was necessary to prevent the harmful use of drawings, etc. to depict actual, individual minors engaged in sex.

The judge held that whether a drawing or other representation of a minor falls within the law depends on the facts of the case, and in particular the degree to which the depiction is clearly meant to represent a human child or teenager:

Merely to give human characteristics to, say, a rabbit, a duck or a flower, to use some other familiar images, would not suffice if it were fair to say that the subject of the depiction remained a rabbit, a duck or a flower. A stick figure could not, I think, depict a person.... No bright line of inclusion or exclusion can be sensibly described. ...Accordingly, if it were reasonably possible that the depiction is not that of a person, the offence is not proved. It follows that a fictional cartoon character, even one which departs from recognizable human forms in some significant respects [as the Simpsons characters do], may nevertheless be the depiction of a person within the meaning of the Act.

Bestselling fantasy author Neil Gaiman says the ruling is "nonsensical in every way that it could possibly be nonsensical," and has some choice words to say about the harmful implications of such a view of the law - including that Australians could now conceivably be locked up for owning his longtime friend Alan Moore & Melinda Gebbie's acclaimed book Lost Girls. Gaiman suggests this is a good occasion to contribute to the Comic Book Legal Defense Fund.

DADT challenge proceeds; dissenters: "Stay in the closet!"

Last Thursday the Ninth Circuit denied the Government's request to have a challenge to the military's "Don't Ask, Don't Tell" policy heard by the full court. A panel of the court ruled in June that a challenge to DADT could go forward, remanding to the trial court to determine whether the policy met a form of heightened judicial scrutiny. If I'm counting right, the vote was 22-6.

Arthur Leonard and Dale Carpenter both discuss the decision and its possible ramifications - and in particular the possibility that the Obama administration, which will take office before the appeal deadline, may decide not to seeking review by the Supreme Court. They also mention the possibility that the outgoing administration might rush to seek cert., putting the new guys in a pretty awkward position.

I'd like to focus on a particularly jaw-dropping aspect of one of the dissenting opinions (PDF), written by Diarmuid O'Scannlain and joined by three other Republican appointees. At the heart of the case is whether Lawrence v. Texas requires any form of heightened judicial scrutiny for restrictions on sexual privacy. The panel held that it does. In dissent, O'Scannlain pointed to limiting language from Lawrence, which said:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

Yeah, so what? So, O'Scannlain distinguishes this case on two amazing grounds. First, Lawrence does not apply to any non-criminal case. The implication appears to be that any imposition on sexual privacy is constitutional so long as no criminal penalty is attached. Presumably this means that sodomites could be barred from teaching, living in public housing, receiving Medicaid, or entering the country. This is simply wrong because, among other reasons, the severity of the criminal sanction was not part of the analysis in Lawrence. Indeed, if Lawrence is, as O'Scannlain suggests, a case decided under "rational basis review," the nature of the sanction is irrelevant, because the court considers only the connection between the law and the purported policy goal.

Even more astounding, however, is what O'Scannlain says next:

The [panel] opinion makes much of the fact that the homosexual acts for which, in part, [plaintiff] Major Witt was dismissed occurred in the privacy of the couple's shared home. But nothing in the “Don't Ask, Don't Tell” policy forbids anyone from doing anything in the home on pain of criminal or even of civil penalties. Indeed, the whole point of the policy is to keep such private behavior private. If no one asks and no one tells, no one in the military cares. “Don't Ask, Don't Tell” is about how the military manages its personnel; the policy only matters if an employee's homosexual conduct or acknowledgment of homosexuality becomes public. What happened in this case, and what must happen for “Don't Ask, Don't Tell” to apply, is that homosexual conduct, originally private or not, became public. And Lawrence simply does not apply to non-criminal public conduct.

That's right: acknowledging that you are gay is constitutionally unprotected "public conduct." Major Witt was within her constitutional rights when she made love with her partner at home, but stepped outside the bounds of protected privacy interests the moment she came out of the closet. No matter that Lawrence's reference to "public conduct" was clearly a reference to public sexual conduct, e.g., getting it on in the bushes in the local park. Being openly gay is no different, since as we're always being told, being out forces your sexuality down other people's throats. So, Lawrence says you have a right to be gay, so long as you stay in the closet!

Clearly, O'Scannlain's views are not the law. But to have a federal appellate judge write something so anachronistic in 2008, and have three of his colleagues join it, is in itself an affront to public decency.

In Minnesota, toilet toe-tapping trashed

Leonard Link discusses a ruling by the Minnesota Court of Appeals, rejected Sen. Larry Craig's bid to overturn his conviction for disorderly conduct in the form of lurid toe-tapping. As an initial matter, the court held that Craig could not take back his guilty plea. Moreover, the court rejected free speech arguments by Craig and the ACLU. The court held that the disorderly conduct law was not overbroad on its face, and that "even if appellant’s foot-tapping and the movement of his foot towards the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may prohibit them." Craig intends to appeal to the state's high court.

More on N.H. pornograhy/prostitution case

For more on the ruling I discussed yesterday, see coverage at AVN. For more on the facts of the case, see coverage at the Concord Monitor. Something I left out before: our bailiff and would-be-pornography was also convicted on a second prostitution charge involving another couple, and in that case he offered to pay them only to watch, not to videotape. He challenged that conviction on the basis that the prostitution law was overbroad on its face because it could apply to protected speech, but the N.H. court held that the law was facially valid, and its application to protected speech could be challenged in a case that actually implicated that concern.

This week's decision overturning the second conviction was that as-applied challenge. So our defendant still stands convicted in the first case, because he didn't plan to film the action. Notably, the county prosecutor may be considering charging him again in the other case, and attempting to prove that his purpose was in fact personal sexual gratification, not making a film -- in which case it would still be constitutional.

I think the distinction drawn here between paying for others to have sex for the purpose of film and paying for others to have sex for the purpose of getting your personal jollies is somewhat problematic, because the two are far from mutually exclusive. It gets more complicated when you add in the scenario of the director-as-performer. The moral of the story, perhaps, is this: don't try to use "making pornography" as a mere cover for paid personal sexual gratification; you may still fall afoul of the law.

N.H. Court: Pornography ≠ Prostitution

New Hampshire's Supreme Court held this week (PDF) that producers of pornography cannot be prosecuted for prostitution, because paying individuals for the right to videotape their sexual acts is constitutionally protected to the extent that the payor's purpose is to videotape the action rather than to get laid.

As Marc Randazza has discussed in some detail at the Legal Satyricon, few courts have previously addressed this issue. The leading case is People v. Freeman, in which California's Supreme Court reached the same conclusion. In an older case, a New York trial court reached the opposite conclusion.

Here, the defendant offered a couple he met money to tape them having sex. To make a long story short, under the provision of the prostitution law he was charged under, it was not necessary to prove that he paid the couple for the purpose of personal sexual gratification; any payment for sexual conduct would do. The court said that this provision was overbroad as applied to this case, because such application would bar the commercial production of constitutionally protected pornography. The court noted that it would have been fine to charge him under a different provision, under which the jury would have to conclude that the payment was made for purposes of sexual gratification, rather than for the purpose of making a film.

This is essentially the rationale of Freeman: (1) Pornography is different because the payment is made for purposes of making a film, not purposes of personal gratification, and (2) If the two were treated alike, a broad category of sexually explicit films could not be produced. The court rejected any distinction between making and selling pornography. If you have a right to produce porn, you must have a right to pay people to perform in it.

Eugene Volokh @ the Volokh Conspiracy is suspicious of this distinction, but I think it makes sense: pornography and prostitution are very different transactions, which is why many porn performers wouldn't engage in prostitution regardless of the law. A prostitution rap makes even less sense in this particular case than in the typical case of professional producers and performers, because the defendant here was soliciting couples who, presumably, were going to have consensual sex with each other regardless.

So hurrah for the First Amendment and pornography production in New Hampshire. On second thought, who makes porn in New Hampshire? Judging from this case, courthouse security guards soliciting random couples they meet at work. Let's hope the court's decision leads to a higher class of New Hampshire-based pornography...

Prison censorship (Kansas edition)

The Kansas Court of Appeals recently rejected a prisoner's challenge to the state's refusal to allow inmates access to sexually explicit materials. Washington v. Werholtz. 2008 WL 4998689. This is hardly big news - prisons are uniformly very restrictive of such material, and courts have upheld such restrictions - but the case provides an interesting illustration of how these policies work and are justified.

The Kansas regulation prohibits all "sexually explicit" material, define thus:

"The material shall be considered sexually explicit if the purpose of the material is sexual arousal or gratification and the material meets either of the following conditions: ...
(2) Contains any display, actual or simulated, or description of any of the following: (A) Sexual intercourse or sodomy...(B) masturbation..."

So, not only visual depictions of nudity or sex are banned, but also any prose that describes sex if its purpose is deemed to be titillating. Several books that Mr. Washington ordered were censored as sexually explicit: Slave Girl by Claire Thompson, a smutty novel about consensual dominance and submission within marriage; Yearbook Lingerie 2004: Objects of Desire by Elodie Pivateau, apparently a serious fashion photo book; The Lapdancer by Juliana Beasley, a serious if apparently explicit book of photojournalism by an art student-cum-stripper; How to Make Love Like a Porn Star by Jenna Jameson, the superstar's lurid and "cautionary" memoir; The Sexual Life of Catherine M. by Catherine Millet, the noted French art critic's shockingly graphic and introspective memoir; and The Bride Stripped Bare by Nikki Gemelli, an acclaimed and bestselling British novel, originally published anonymously.

Of these, my guess is that only the first can fairly be said to be intended primarily for sexual gratification; the rest are more or less "serious" literary or nonfiction books, though no doubt possessed of a substantial titillation factor for men in prison. It appears the state's own policy wasn't being followed, as I was able to make these calls with some confidence with a quick Amazon check. The folks in the prison mail room could no doubt make similar judgments just as quickly. Still, the court rejected arguments that prison officials should be ordered to give more careful consideration to possible "explicitly" books, saying this would be too burdensome.

The court's justifications for the policy are twofold: (1) any sexually explicit material in the prison is likely to fall into the hands of sex offenders, and it's dangerous for sex offenders to read it, and (2) sexually explicit material encourages and becomes a tool of sexual harassment of corrections officers. Now, the standard here is "legitimate penological justification" - it's a low bar, scarcely more than rational-basis review. But the court does seem to take it as self-evident that sexual material of all kinds must be kept out of the hands of sex offenders - logic that I've previously opined is deeply suspect. The sexual-harassment rationale seems less flimsy, at least as applied to photographic or illustrated material, but I'm not sure the argument is as strong that explicit prose will facilitate harassment of prison staff.

On the U.S. Supremes and the Iowa Supremes

Tomorrow I'll be going to the Supreme Court to see arguments in Ashcroft v. Iqbal and AT&T v. Hulteen. A preview of the Hulteen case by yours truly appears today at ACSblog.

The Iowa Supreme Court heard oral argument today in Varnum v. Brown, the sole marriage equality case currently pending before a state high court. Follow the link to watch the arguments, or check out Arthur Leonard's recap.

Dennis Johnson, an Iowa attorney cooperating with Lambda Legal, argued powerfully on behalf of the plaintiffs. I was particularly struck with his response to the inevitable "what about polygamy?" question. Rather than seize on the usual arguments that multiple marriage is associated with abuse and harmful to children and women, or otherwise trying to distance same-sex couples morally from polygamists, Johnson gave the response what I have always thought to be the obvious, sensible response: unlike same-sex marriage, polygamy raises numerous new, practical questions about legal rights and responsibilities that may justify different treatment by the legislature. I'm not sure that this is ultimately persuasive as a policy argument, but as a constitutional argument is suffices. The practical legal consequences of bilateral marriage are the same without regard to gender. Multilateral marriage raises new questions about consent, custody, inheritance, and a number of other matters, all of which would have to be sorted out by the legislature and/or the courts -- and in the context of litigating recognition for same-sex couples, that is all that needs to be said.

Whither Obscenity Enforcement?

We can expect the Obama administration to make a clear and positive break on a number of issues covered here. For example, the new administration is expected to favor comprehensive sex education and undo the reviled "Global Gag Rule." But what about the Bush Administration's obscenity crusade? Can we expect that, simply because Obama is a Democrat and has voiced progressive positions on most social issues that his Justice Department will turn away from systematic obscenity prosecutions?

That's less clear, for a number of reasons. Obama has never spoken to the issue, so far as I'm aware. He and AG pick Eric Holder can certainly guide DOJ priorities, but ultimately federal prosecutors have considerable discretion to enforce the laws on the books. Additionally, Holder has in the past made noises favoring robust obscenity enforcement. For a discussion from the adult industry perspective, see this column by Mark Kernes over at AVN.

A Question You'll Never See on the US Census

The UK Telegraph reports that:

People answering questionnaires about their employment status, their living costs and how much they drink or smoke will also be asked whether they are heterosexual, homosexual or bisexual. The enigmatic category "other" is also being included to cater for the "very small" number of people who say they do not fit into the first three groups. Future studies could also ask Britons if they have had sex swaps or are "undergoing the process of gender reassignment".

The Office for National Statistics, the organisation that collates data for use by Government, says the new questions are essential to meet equality laws and to find out if people from minority groups are discriminated against.

The question will be part of ONS's frequent population and economic surveys. No word yet on whether such questions will be used in the 2011 UK census, though the matter has been debated. Like the 2000 US census, the 2001 UK census gave only a limited picture of the LGB population, via numbers of same-sex couple households.

Corporate Censorship Redux: Sex Bloggers Calendar

Recently I noted the various censorious corporate moves by companies like Citibank and Google that made life difficult for sex writer and filmmaker Audacia Ray. Ray's online store is now playing host to another victim of private regulation of online sexual speech: the Sex Bloggers Calendar, which has had repeated troubles with PayPal. Saith the Sex Bloggers:

We believe what has caused PayPal to twice now review our account is the word “sex” in both our email address and the actual calendar title. ...It is obvious to us and many others in this community that PayPal is not good to use for anyone in the adult industry. We were aware of others who had had their accounts frozen and their funds taken by PayPal for what PayPal felt was a violation for their TOS. We did not think when we set up our Paypal account we would have this problem because there is no nudity in our calendar. As a matter of fact our calendar shows less skin than the Sport Illustrated calendar does but we do not want to take the risk of having the funds in our account seized.

Proceeds from the calendar go to Sex Work Awareness, a public education project that seeks to reduce the stigma and challenges faced by sex workers.

eHarmony turns anti-gay bias into anti-bisexual bias

Feministing and Bi-Furious! recently posted about the out-of-court settlement of a discrimination lawsuit against dating site eHarmony.com. To end a lawsuit under New Jersey's antidiscrimination, the company agreed to start a separate dating site for same-sex couples, to be called "Compatible Partners." The company expressed its expectation that this would also resolve a class action suit against it in California. And that, eHarmony is hoping, is that.

But I'm not so sure that the settlement actually brings eHarmony into compliance with applicable law. Aviva at Bi-Furious! notes that neither eHarmony's existing opposite-sex matching site, nor its planned same-sex matching site, caters to bisexual folks, who would have to join and pay for both sites to take full advantage of eHarmony's matching services.

In general, antidiscrimination statutes prohibit not just the denial of access, but the denial of the full and equal enjoyment of public accommodations on prohibited bases such as sexual orientation. Thus, it's not sufficient that bisexual date-seekers could join either site and be matched with potentially compatible people. Sure, a bisexual person might find a fabulous partner of the same sex on "Compatible Partners" - but they're not really getting the same opportunity to access a relevant dating pool that straight and gay members are getting. Instead, they have to make a choice: pick a gender of partner to seek, or choose to remain open and pay more. As if there weren't enough pressures for bisexuals to "choose"! So while "Compatible Partners" may satisfy the complaints of gay date-seekers, the company running both sites is still discriminating against bisexuals. This is still sexual orientation discrimination, just as opening a service to Black and white folks but not any other folks is race discrimination.

Finally, some have derided this litigation, suggesting that dating sites shouldn't be subject to these kinds of claims. But it's clear that online matching sites of various kinds are public accommodations as defined by most state laws. Similarly, it's established that Roommates.com and Craigslist are covered by the Fair Housing Act. While the site owners are not responsible for the private preferences of their users, they themselves can be sued for discrimination.

Update: The possibility of anti-bisexual discrimination claims against eHarmony and its new site is already the subject of a (fairly deadpan) satirical news report. Because if gays claiming discrimination is funny, bisexuals claiming discrimination is funnier.

California marriage update

The New York Times reported last week that California is looking into whether the Mormon Church failed to report in-kind contributions to the Yes on Prop 8 campaign.

The Los Angeles Times reported that pro- and anti-equality groups are preparing for marriage to be an issue in California's 2010 judicial retention election, and for a possible initiative to repeal Prop 8.

Reuters reports on the concerns of civil rights groups representing racial and ethnic minorities that a decision to uphold Prop 8 would have effects far beyond LGBT rights. These groups have filed a brief supporting the Propr 8 challenges with the California Supreme Court.

At Bilerico: Is New York's new Democratic state senate majority backing away from a marriage equality bill, which civil rights advocates hoped to see introduced next year?

"Upskirt" peeping and privacy law

Via Feministing, I ran across an article by Tracy Clory-Florky at Salon that explores the Internet-fueled - though by no means new - trend of "upskirt" photography, which is now a sizeable pornographic genre all its own. It begins thusly:

On a warm summer day two years ago, a 16-year-old girl put on a skirt and headed to the SuperTarget in her hometown of Tulsa, Okla. As she shopped the air-conditioned aisles, a man knelt behind her, carefully slid a camera in between her bare legs and snapped a photo of her underwear. Police arrested the 34-year-old man, but the charges were ultimately dropped on the grounds that the girl did not, as required by the state's Peeping Tom law, have "a right to a reasonable expectation of privacy," given the public location. In non-legalese: Wear a skirt in public, and you might just get a camera in the crotch.

States and privacy experts are now trying to figure out what to do about this.

Samhita at Feministing is rightly miffed that this discussion gets bogged down in whether such photographs of unwitting passersby constitute an invasion of privacy. Of course they do. How do we know? Consider the analogous situation of the bathroom stall. The bathroom itself is a public place. The stall is, typically, not completely closed off from the rest of the bathroom; its walls do not extend all the way to the floor or ceiling. Others could certainly peep over or under. Yet most of us would agree that there is a general, reasonable, and fairly strong expectation of privacy in the closed stall. This has often come up in Fourth Amendment cases, and court generally agree that there is a reasonable expectation of privacy in the stall (though they sometimes disagree about how it applies to many situations involving law enforcement searches and surveillance).

When you wear a skirt on the street, the parts of your body covered by the skirt are like all of you when you're in a bathroom stall. Your deliberate concealment creates a reasonable expectation of privacy as to the parts concealed, even if someone could go out of their way to peek. This doesn't seem to me to be a difficult question.

A more difficult question is, what can be done about the dissemination of such photographs? As Clark-Florky points out:

When it comes to voyeurs who photograph or videotape up a woman's skirt (known as "upskirting") or snap a photo down a woman's shirt ("downblousing"), though, "there are not many practical, legal remedies available to people who find themselves the victim," says Anita Allen, a privacy expert and professor at Penn Law. That's if the woman even realizes she is a victim in the first place, which is unlikely, as the voyeur typically manages to go undetected. If the photo or video is published online -- which, increasingly, it is -- it would be difficult for the subject to ever come across the material. Even if she did, how could she recognize one underwear-clad rear as her own?

One thing we shouldn't do is start shutting down anyone who posts upskirt images. As the Salon pieces notes, upskirt images can be faked, and there is nothing wrong with playing into this fantasy of illicit voyeurism with consensual subjects pretending to be oblivious. I expect that a lot of "upskirt" material online is just that - certainly nearly all of it on commercial sites is. But it shouldn't be difficult to find out if someone is posting staged photos or truly peeping, and there is every reason the law should care about the latter.

Sex offender laws limited in Georgia, California

The Georgia Supreme Court, on a 6-1 vote, overturned a sentence of life imprisonment for failing to properly register as a sex offender (PDF). The court emphasized that failure to register is a "passive," nonviolent offensive, and that it is wholly disproportionate to sentence a man to life for failure to register, when the crime that got him on the registry had only a five-year sentence. The court noted that all other crimes meriting this sentence are far more violent and disruptive of society, and that other violent crimes merited lesser sentences than this. In a brief concurrence, one justice noted that: "Some people even believe that rotting in prison for life is more torturous and inhumane than a quick and instantaneous death."

Meanwhile, a California appeals court overturned a lower court's order that a man convicted of assault, but acquitted of any sex offense, register as a sex offender (PDF). The trial judge said it was not clear why the jury acquitted the man on the sex offense charges, but that he was still a danger to the public. The appeals court held that registration is a punishment, and accordingly can only be based on facts and convictions determined by a jury.

In California, sex offender registration comes with a strict residency restriction that can exclude individuals from entire neighborhoods and even entire cities. The intermediate appeals court did not invalidate any part of the voter-approved law under which the defendant was sentenced, but held that sex offender registration, far from being merely a public safety measure, constitutes "traditional banishment under a different name." The state supreme court is now considering a case directly challenging the constitutionality of what's known as Jessica's Law. The SF Chronicle covers these cases here.

H/t How Appealing.

Putting an end to trans murders

My indignation at the passage of Prop 8 pales in comparison to my outrage at two more murders of transgender women. From the Washington Blade:

Allyson Robinson, an associate director at HRC, said that she doesn’t think it’s alarmist to use the word “epidemic” for the violence that has been occurring against transgender people.

Robinson said that at least 15 transgender people have been killed this year because of their gender identity.

This epidemic should be at the top of the LGBT community's, and the broader civil rights community's, agenda. State and federal hate crimes laws would be a nice symbolic gesture, but are not likely to have a lot of practical effect. Antidiscrimination laws will help make it possible for more trans people to find safe jobs and housing. But we also need more and better social services and health care for trans people. We need policies and education to ensure that health care providers, police and prisons treat trans people with dignity and respect. We need to secure coverage for transition-related care under Medicaid and private insurance.

Best. Amicus. Ever. (God.)

As Prop 8 goes to the California Supreme Court, God is definitely in the mix - as amicus curiae. God's legal brief (PDF) comes to us via Mariette Do-Nguyen, founder of the World Divine Mission and "Heiress of the Almighty Eternal Creator." The brief is in the fine and colorful tradition of deranged and emphatically pro se legal filings that bring a bit of whimsy (along with wasted clerical work) to judges' chambers everywhere. This genre is known for its generous use of bold text, exclamation marks and wild tangents.

Did I mention that, according to God's brief, Rev. Falwell was right about 9/11 being punishment for America's rampant sodomy? Oh yes. The long illnesses of Chief Justice Rehnquist and Justice O'Connor (maybe God means her husband, or maybe he means Justice Ginsburg?) were also "a result of their services that badly hurt eternal life of human souls." George Bush, Bill Clinton, the CIA, Satan and "murdered unborn babies" also make appearances.

You may have missed it, but God, through his "Heiress," spoke (PDF) in the 2004 California marriage litigation as well, saying:

Master of universe asked me for through this Motion, He ordered worldwide government officials of Executive Branches, Legislative Branches and Judiciary Branches must quickly pass constitution amendment defending marriages right between a man and a woman, and ban all same sex partners/same sex activities; and same sex activities must be charges as crime [grave sins] against God tremendously damaging human race societies.

Please, sisters and brothers, pass God's word on.

Via Bilerico.

Calif. court finds for abused trans prisoner

Abuse of trans people in jails and prisons - either by prison staff, or by other inmates because of the neglect of prison staff - is rampant, and yet courts typically rejects suits by trans prisoners. Arthur Leonard reports on a happy exception in a very unhappy case. The plaintiff, a trans woman placed in a male prison, suffered repeated threats, assaults, and rapes - including by her cellmate - before prison officials finally responded to her complaints. A California appeals court rejected a claim based on her constitutional right to be free from cruel and unusual punishment - the standard for such claims based on neglect is very high, and notably it was originally set out by the Supreme Court in rejecting similar claims by an incarcerated trans woman. But, the court here said that the plaintiff could sue under the basic state law of negligence.

In this case, [the judge] noted with some surprise that California courts had never previously addressed the question whether the state’s tort law recognized a "special relationship" between inmates and jailers on which to ground a duty to protect. Generally, tort law imposes no duty on an individual to protect another individual from harm, but such a duty can be found if there is a special relationship such that the law will impose responsibility on an individual for the protection of another. Such a special relationship can be found if an individual has control over the environment of the other, and the other is particularly vulnerable to harm.

The court found that the situation of an inmate fit squarely within this description, which can be found in decisions by the courts of many other states and has been described in leading torts treatises by respected scholars. An inmate has no control over his environment, which is controlled by the jailer, and is vulnerable because he is not allowed to have weapons or any lawful means to protect himself against attack within the prison.

As Leonard notes, the state would be very wise to settle this case.

After Prop 8, what next for the LGBT movement?

The promised 2257 analysis is forthcoming, but give me a break: I have some kind repetitive stress injury, which needs a look from a doctor. Meanwhile, there are lots of reflections on Prop 8's passage out there, some of which I'd like to highlight here.

Some folks think this loss means we need to shift to a focus on building public support for same-sex marriage instead of hanging our hopes on litigation.

Jonathan Rauch:

The civil-rights model tried to separate marriage from the political process, because we didn't have nearly enough straight support to win. That left our opponents with the political field to themselves while we busied ourselves in the courts. Not any more. We now have enough straight allies to win, long-term, in the political arena.

To judge from the protests, that's where we'll be going. Goodbye Thurgood Marshall, hello Martin Luther King. Goodbye Lambda Legal, hello ACT-UP. Sure, more love, less anger than in the AIDS days. But the protests, provided they are peaceful and don't turn hateful or anti-religious, point the way forward.

The Los Angeles Times agrees:

Wresting equal rights from a society reluctant to grant them isn't easy. It can take years of nonviolent resistance, passionate speeches and even in-your-face radicalism. If people who voted yes on Proposition 8 say they didn't see it as a civil rights matter, that's because until now there has been nothing resembling a civil rights crusade by the gay community. Courts can assist downtrodden groups, but they never have and never will be enough to guarantee equality on their own.

The LAT has plenty of criticism for the No on 8 campaign, and for political leaders who opposed the measure but refused to come out front and fight it.

Nan Hunter points out that a same-sex marriage case remains pending in Iowa, and the prospective getting marriage through the legislature in New York and New Jersey is looking up. She also speculates that anti-gay groups will try to reproduce the newly-passed foster parenting and adoption ban in Arkansas. She goes on to say:

The place for our team to concentrate - the location of our greatest strength - is the non-marriage front. After all, if we had not had a Republican president and congress for these last years, we would have enacted ENDA in the first year or two of the Gore presidency. The priority would have been securing and implementing a national anti-discrimination law. I don't think that the focus we have seen on marriage would have mushroomed in anything like the way that it has. ...The upside potential for lgbt rights is enormous right now, although it may not have a lot to do with marriage.

She urges passing an inclusive ENDA and replacing the so-called Defense of Marriage Act with federal recognition for state-recognized domestic partnerships, civil unions, and marriages. Hunter also points to the ingenious efforts of Equality Utah, who are taking the Mormon church at its word: since y'all said during the Prop 8 campaign that you don't object to many forms of relationship recognition for same-sex couples, why don't you work with us to secure them?

Last and perhaps best, Bi-Furious takes a stronger tack on shifting the LGBT movement's focus away from marriage equality:

I don’t think it should be our top priority. I’m frustrated with the way it appropriates a disproportionate share of our advocacy and resources, to the exclusion of things I feel would be a much better use of those things. In many places we can still be denied housing and employment because of our sexuality. This is true in almost all places of those who don’t conform to binary gender norms (and those of the gender assigned to them at birth, thank you very much). People are still being harassed, beaten, raped, and murdered for their perceived queerness. ... Many medical professionals are still trying to counsel and medicate queers out of our sexual preferences or gender identities, and giving us less than their best care besides.... Save for the controversy over an ENDA that left out trans folks (and now that we have the kind of Democratic majority in Congress that even the people who wanted to leave trans folks out in the cold said we’d need to pass an inclusive ENDA, could we get on that, please?) pretty much everything I’ve heard about queer rights from mainstream sources in the past several years has been regarding marriage. I think this is a terrible misprioritization, and a gross misappropriation of our attention and energy. I rank marriage as less important than people’s lives and bodily integrity, and I don’t understand how the “gay agenda” doesn’t.

Hear, hear.

Does an anti-porn documentary violate federal law?

A recent documentary on pornography has prompted much discussion on blogs dealing with feminism, sexuality, sex work, pornography and related topics. The film is called The Price of Pleasure, and it intercuts clips from recent porn releases with clips from interviews with industry insiders and critics. The film is essentially a pointed argument that pornography is harmful to women and to intimate relationships. Among the many criticisms of the film is that its producers and distributor failed to comply with the detailed federal record-keeping requirements to which pornographers are subject. The law is 18 US Code Section 2257, and it is intended to ensure that only adults appear in pornography. It states that:

Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which—

(1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and

(2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Covered producers are also required to place a notice of compliance on all covered materials. The penalty for each violation is up to five years. Adult film producer Ernest Greene argues that the film is covered by, and violated, 2257 here and here. Adult Video News editor Mark Kernes makes the same argument here. Similar criticisms have been levelled at an explicit slideshow exhibited by anti-pornography at lecture appearances around the country. This material has been defended on the ground that it falls under a "fair use" exception to 2257. (They seem to be confusing copyright law with 2257, but the argument does go deeper than this misnomer.) And some critics of this anti-pornography agitprop contend that these legal arguments are weak, and attention should be focused on rebutting its arguments.

I haven't yet seen a serious, detailed analysis of 2257 and whether it applies to material like this, or for that matter anything written by a lawyer. I'll attempt that in a forthcoming post.

NYT covers trans voting challenges; blows it

I was going to write about the Nov. 4 New York Times article on voting difficulties faced by transgender voters, but Alex Blaze at Bilerico pretty much said it:

There are serious issues for many transgender people when it comes to voting. Their name might have changed since registering to vote, states with stringent photo ID laws (like Indiana) can pose a problem for trans folk whose gender expression doesn't match their drivers' license, and plain old transphobia of some poll workers might intimidate transgender people who have a right to cast a vote.

But you wouldn't know that from the article. Someone who's unfamiliar with the topic would probably think that transwomen are just more concerned with getting their hair done.

It didn't look like Ms. Carver would cast a vote this election, which was just as well to her because she was headed out for the evening and had a scarf around her head and large hoop earrings in her hair and tight clothes on her tall slim body. The official told Mr. Braxton that Ms. Carver could apply for a provisional ballot or even try going before a judge before the polls closed at 9 p.m., to try to get on the ballot.[...]

"That gives you an idea of her priorities," Father Braxton said, shaking his head. "She wanted to get her hair done."

I'm sure there were plenty of transwomen who wanted to vote in New York City who could have been profiled in this article. Or the Times could have done an article about voter apathy and used Michelle Carver as an example.

So good on the Times for at least referring to Michelle Carver with female pronouns and a female honorific. But this issue deserves serious coverage, not condescending commentary on a someone who isn't even facing the problems outlined in the beginning of the article.

Argh.

The Netherlands: Forced contraception for "unfit" women?

A draft bill in the Dutch parliament is causing a stir among disability activists and others: it would force women judged "unfit" to take contraception or face having any children they have taken away by the state. Notably, the English-language press coverage doesn't indicate the likelihood that this legislation will actually pass.

It's not clear whether there is any other consequence in addition to the immediate taking of any child for foster care. Women in this country who have been judged unfit to parent their previous children already face a high risk of having any additional children they have taken away - though the process is generally not automatic, as it appears would be the case under the Dutch bill.

In any case, the bill would still be an undue infringement on reproductive freedom. To the extent Europe's human rights courts agree, I would think it could be struck down - if it is ever passed - as a violation of the fundamental right to privacy in the European Charter.


H/t Feministing.

Prosecutors seek recusal of entire Ninth Circuit in obscenity case

Yes, you read that right.

Some of you will recall the kerfluffle this past June about Ninth Circuit Chief Judge Alex Kozinski's personal porn stash, which he foolishly (and apparently inadvertently) kept on a publicly-accessible server. This was big news in the legal community; Kozinski (a Reagan appointee) is one of the most prominent federal judges, perhaps best known for his witty opinions and his passionate interest in issues of speech, intellectual property, and the Internet. The revelation caused Kozinski to recuse himself from presiding over the obscenity trial of fringe pornographer Ira Isaacs. Kozinski also declared a mistrial and called for an ethics probe of his conduct.

When the Department of Justice sought to retry Isaacs, he argued that a new trial would constitute double jeopardy. This is the issue in his current appeal. And federal prosecutors think that since the circuit's chief judge declared the mistrial, all the other judges should recuse, and have the case heard by judge's from another circuit. There is apparently only one precedent for this, when the Eleventh Circuit recused themselves en masse from the 1992 appeal of a man convicted of murdering one of their colleagues. I don't really see a mass recusal happening here.

Scattered observations on the election

At Bilerico, Jillian Weiss recalls Barney Frank's statement last year that "if we can pick up 15 Democratic [House] seats, then I think we are in a good position to pass a transgender-inclusive ENDA." As Weiss notes, House Democrats picked up at least 19 seats. By the strategic standards of those who supported a non-inclusive ENDA, the time for that strategy is behind us. It is time to move forward with a fully inclusive bill.

Chris at Sex in the Public Square and Renegade Evolution have some reflections on the effort to pass Proposition K in San Francisco.

It now appears that even when all the votes are counted Prop 8 will pass. There is already litigation underway to challenge it. I've previously opined that attempting to challenge the substance of Prop 8, as somehow irreconcilable with the rest of the constitution, is a loser. But the leading argument being made now seems to be that Prop 8 is such a significant change that, under the state constitution, it should have been approved by the legislature before going to the voters (which would never have happened). The alternative argument is that the amendment isn't retroactive. It's not clear to me how strong these arguments are, but how the state's high court rules on them could well be an issue in the justices' 2010 retention races. Arthur Leonard gives a rundown of these suits, as well as the probably constitutional challenge to the Arkansas foster parenting/adoption ban.

Ballot measure, election results!

How Appealing collected the following AP headlines:

"California gay marriage vote still undecided"
(though it's not looking good)

"Florida voters pass amendment banning gay marriage"

"South Dakotans reject second try at abortion ban"

"Colo. voters soundly defeat anti-abortion measure"

"Ark. voters OK unmarried foster, adoption bans"

"Neb. voters approve ban on affirmative action"

Also, Federal Marriage Amendment standard-bearer Marylin Musgrave lost her house seat in Colorado!

In San Francisco, the tally on Proposition K is reportedly around 57-43 against. I don't know what those heavily involved in the campaign think, but to me that looks like a very strong showing for a highly controversial measure. It has sparked a lot of debate and perhaps will be back in the future.

The election results have me wondering about the following questions:

• Which Justice(s) will be announcing their retirement from the Supreme Court come next summer?
• How will the changed political landscape change the fight over trans inclusion in the Employment Non-Discrimination Act?
• Will any LGBT rights legislation move in Congress in Obama's first year in office?
• Will Proposition 8 (if it passed) be held to be retroactive?
• How many years will it be before voters consider reversing Proposition 8?
• When Arkansas's new adoption ban is inevitably challenged in court, will the Eighth Circuit Court of Appeals split with the Eleventh Circuit, which upheld Florida's ban?
• Will the defeat of the "embryo rights" amendment in Colorado and the all-out abortion ban in South Dakota forestall a push for similar measures in other states? (Hopefully so, and likewise the failure of the anti-trans measure in Montgomery County, MD to make it on the ballot!)

Oklahoma's mandatory ultrasound challenged

Emily Bazelon takes on Oklahoma's mandatory ultrasound law, now being challenged in state court by the Center for Reproductive Rights:

But what if a woman doesn't want an ultrasound, and there's no pressing clinical reason for her to have it? Four states—Alabama, Louisiana, Mississippi, and Oklahoma—have taken the galling step of requiring her to have one regardless of need. They recently passed laws that go beyond offering ultrasounds to mandating them. Oklahoma's new statute dictates that either the doctor performing the abortion or a "certified technician working in conjunction" with that doctor do the ultrasound, "provide a simultaneous explanation of what the ultrasound is depicting," and also "display the ultrasound images so that the pregnant woman may view them." The law goes so far as to specify the doctor's script: The physician must describe the heartbeat and the presence of internal organs, fingers, and toes. The patient then has to certify in writing that the doctor or technician duly did all of this before the abortion. She can avert her eyes from the screen, the statute allows. Maybe the legislators should have also thought to mention putting her hands over her ears.

Bazelon notes that:

The Center for Reproductive Rights is worried enough about an outcome like the one in the 8^th Circuit [which allowed South Dakota to force doctor's to say that abortion terminates a human life] that it based its challenge to the Oklahoma ultrasound statute entirely on state constitutional law. That means no federal court can review the state courts' decisions (because those courts get to interpret their own constitutions). This was a tough decision, Toti says, but Oklahoma's Constitution has been interpreted in the past to give stronger free-speech and due-process protections than the federal Constitution.

My article in the Columbia Journal of Gender and Law on informed consent laws, which discussed the 8th Circuit case, is now available on SSRN.

Props 8, 4, and K

The good news is that the latest polling shows Proposition 8 down 44-52 in California. This is encouraging, because recent polls showed Prop 8 edging ahead. It's likely to come down to persuading people who say they are against same-sex marriage that it nevertheless shouldn't be banned:

Despite opposition to the ballot measure, the state remains split over the underlying question of same-sex marriage, said Mark Baldassare, director of the poll. In a separate question in the survey, 49 percent of those questioned opposed allowing gay and lesbian couples to legally marry in California, while 47 percent were in favor.

"I've said since August that it could be a close election because the state is so split on the same-sex marriage question," Baldassare said. "About 20 percent of likely voters oppose same-sex marriage but say they'll vote 'no' on Prop. 8."

The bad news is that Proposition 4, which would endanger teens' health and safety by requiring parental consent for all abortions, is ahead 46-44 - with fully 10% undecided. As with Prop 8, the campaign for Prop 4 is a dishonest one, as the LA Times notes in its editorial against the measure:

The supporters of Proposition 4 have managed to frame their campaign around two ideas, both misleading, that hold particular appeal for voters. One is that, in addition to allowing girls to seek court permission for an abortion, it will give those who justifiably fear telling their parents an "out" by allowing them to notify another adult relative instead. This would indeed give the measure more credence, if it were true. But in order to use it, the girl would have to accuse her parents, in writing, of child abuse, with the accusation to be forwarded to law enforcement authorities. It's the equivalent of telling girls they can get an abortion by walking into a police station and having their parents arrested.

The campaign also assumes a kinder face by saying that this is about protecting girls from adult sexual predators; newly knowledgeable parents would put an end to the sex crimes. But a study released in September by UC San Francisco found that few girls have relationships with significantly older males and that the percentage of those who do does not appear to change with notification laws.

For better or worse, I'm not aware of any polling data on San Francisco's Proposition K to decriminalize sex work. But check out this fairly balanced examination of the measure and the debate at Huffington Post. Notably, the measure has split the city's two LGBT Democratic organizations, named after Harvey Milk (for) and Alice B. Toklas (against) respectively. I'm not sure about Alice, but I'm pretty sure Harvey would have supported Proposition K. (Speaking of which, can you believe Sean Penn is playing Harvey Milk?!)

USCIS: Gardasil mandate not our decision

Today's Los Angeles Times suggests that not only was it not the decision of Citizenship and Immigration Services to mandate the HPV vaccine for all immigrant women 11-26, but they can't do anything about it:

A 1996 immigration law directs the Citizenship and Immigration Services to require that new immigrants receive inoculations that the CDC's immunization committee recommends for U.S. residents.

"It's not really a decision of ours," said immigration service spokeswoman Sharon Rummery. "We can't cherry-pick the recommendations."

In other words, it appears the culprit in this instance is not CIS, but a too-rigid requirement in the Illegal Immigration Reform and Personal Responsibility Act of 1996. That requirement might have made sense on paper, but it doesn't take account of the possibility that the CDC will recommend immunizations in a case where the public health threat doesn't justify a mandate for anyone. In fact, the CDC itself recognizes the problem, and says it simply hadn't thought about the 1996 law:

"If we had known about it, we would have said it's not a good idea," said Jon Abramson, who was chairman of the CDC's Advisory Committee for Immunization Practices when the body recommended the vaccine for U.S. citizens last year.

Looks like the solution is a common-sense modification to this federal statute - another item, hopefully, to add the very large agenda of Congressional Democrats next year.

When do sex-related crimes merit deportation?

This is a question that federal appellate judges - particularly the Ninth Circuit - are nowadays called upon to decide with some frequency. One such decision came yesterday in Estrada-Espinoza v. Mukasey (PDF), with the Ninth Circuit ruling that a Mexican citizen's statutory rape conviction did not constitute "sexual abuse of a minor" that, under federal law, merits deportation. Estrada-Espinoza had a cohabiting relationship with a 16-year-old when he was 20, and was convicted of statutory rape. A panel of three judges concluded that deportation was proper, following an earlier ruling that convictions under California's statutory rape law categorically constituted "sexual abuse of a minor."

A panel of eleventh judges unanimously reversed, saying: "We and our sister circuits have been careful on other occasions to distinguish laws governing the sexual behavior of younger teenagers from those governing the behavior of 16- and 17-year-olds." Indeed, the court's opinion canvases similar cases across the country in recent years, which on the whole suggest increasing sensitivity to a distinctions between abuse of younger teens and consensual relationships with older teens.

In sum, we conclude that convictions under [California's statutory rape laws] do not categorically constitute “sexual abuse of a minor.” This conclusion becomes even more apparent when we reconsider the facts of this case. There is no suggestion of abuse in any form. The couple had a relationship, approved by both parents, and lived together in the home of the petitioner’s parents. They had a child together, ultimately moved into a separate residence, and [the Defendant] worked to support this family. If they had solemnized their relationship by marriage, no prosecution would have been possible under § 261.5(c).

A Ninth Circuit panel reached a similar result in a case last year, though that case involved a larger age gap. The court drew a distinction between and malum in se sex offenses (inherently harmful and wrong) malum prohibitum sex offenses (statutorily prohibited but not inherently wrong). Since there were few facts in the record, the court resort to hypothetical:

In other words, among the range of conduct criminalized by [the California statute for statutory rape with a five-year age gap], would be consensual intercourse between a 21-year-old (possibly a college sophomore) and a minor who is 15 years, 11 months (possibly a high school junior). That relationship may very well have begun when the older of the two was a high school senior and the younger a high school freshman and have continued monogamously without intercourse for two to three years before the offending event. On its face, such behavior may be unwise and socially unacceptable to many, but it is not “inherently base, vile, or depraved,” or accompanied by a “vicious motive or corrupt mind." Nor is it “so far contrary to the moral law” as to “give rise to moral outrage.” In short, the conduct discussed does not meet the first Fernandez-Ruiz requirement of being an “act of baseness or depravity contrary to accepted moral standards.”

This reasoning makes sense to me; it is, essentially, a recognition of the important difference between statutory rape and actual rape. We allow an age difference to stand in, as it were, for lack of consent because we feel that such relationships are risky, unwise, and on the whole should be discouraged. But few of us really believe that these are the same thing, equally meriting the extremely strong medicine of deportation.