Friday, October 24, 2008

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 8th 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.

Thursday, October 23, 2008

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?!)

Wednesday, October 22, 2008

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.

Tuesday, October 21, 2008

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.

Monday, October 20, 2008

Interesting article on gender variance in Iran

A recent article from Cheraq -- the journal of the Iranian Queer Railroad (IRQR), formerly known as the Iranian Queer Organization -- features a detailed and quite interesting discussion of the surprising acceptance of gender transition in Iran. The author argues that while the acceptance of transsexualism by leading Iranian clerics has been lifesaving for many, the conflation of gender and sexuality in the prevailing Iranian theology has harmful implications for both trans and gay people living under Islamic rule:

Today, there is a certain celebratory tone about recognition of transsexuality and permissibility of sex-change perations within the Islamic Republic of Iran. ...Yet, behind these apparently progressive stories of gender recognition lies an emerging disturbing discourse on gender and sexual disorders and pathologies....
...This collapsing of gender and sexuality has distinct implications for transpersons and homosexuals. Transpersons are perceived of as being “homosexual” and are demonized and punished as such when in reality many of them might not even identify as homosexual; in turn homosexuals are tacitly pressured to seek hormonal and surgical sex/gender transformation when in reality many of them might not be genuinely transsexual.

I can't help noting that my own student Note -- Against the Surgical Requirement for Change of Legal Sex -- is cited repeatedly.

OT: I'm on the cover of The Nation!

Usually I don't use this space to plug my work-related publications, but this is one is particularly exciting, not only for the above-stated reason but because of being in the distinguished company of five law professors whose work I admire.
The Nation's forum on the courts and the election includes the following contributions (some of which are only available to subscribers):

"The Supreme Court and the Election: What's at Stake," by Herman Schwartz

"Safety Last," by David C. Vladeck

"Health Cares," by Sara Rosenbaum

"Senior Rights & Wrongs," by Harper Jean Tobin

"Debtor Nation," by Robert M. Lawless

"Hard Knocks in the Workplace," by Eric Schnapper

Friday, October 17, 2008

The sexist Catch-22 of electoral politics

Over the long course of the presidential campaigns, my mind keeps coming back to the landmark Supreme Court case of Price-Waterhouse v. Hopkins (1989). This decision sanctioned the sex-stereotyping theory of sex discrimination that has in large part formed the basis for recent decisions on anti-trans bias in the workplace. But more to the present point, the facts of the case neatly illustrate the kind of sexist Catch-22 that women like Hillary Clinton -- and, to be fair, Sarah Palin -- face running for office. Justice Brennan neatly summed up the situation:
An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not.
Ann Hopkins was denied partnership at the professional services firm that is now PriceWaterhouseCoopers, and claimed that the decision was based on sexism. The company claimed her "people skills" were the reason for the decision. From Justice Brennan's plurality opinion:

The partners in Hopkins' office praised her character as well as her accomplishments, describing her in their joint statement as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Clients appear to have agreed with these assessments. At trial, one official from the State Department described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Another high-ranking official praised Hopkins' decisiveness, broadmindedness, and "intellectual clarity"; she was, in his words, "a stimulating conversationalist." Evaluations such as these led Judge Gesell to conclude that Hopkins "had no difficulty dealing with clients and her clients appear to have been very pleased with her work" and that she "was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked."

On too many occasions, however, Hopkins' aggressiveness apparently spilled over into abrasiveness. Staff members seem to have borne the brunt of Hopkins' brusqueness. Long before her bid for partnership, partners evaluating her work had counseled her to improve her relations with staff members. Although later evaluations indicate an improvement, Hopkins' perceived shortcomings in this important area eventually doomed her bid for partnership. Virtually all of the partners' negative remarks about Hopkins -- even those of partners supporting her -- had to do with her "interpersonal skills." Both "[s]upporters and opponents of her candidacy," stressed Judge Gesell, "indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with, and impatient with staff."

There were clear signs, though, that some of the partners reacted negatively to Hopkins' personality because she was a woman. One partner described her as "macho"; another suggested that she "overcompensated for being a woman" ; a third advised her to take "a course at charm school." Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it's a lady using foul language." Another supporter explained that Hopkins "ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate."

But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board's decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."

The partners, in short, thought she was a man-eating bitch. She was Hillary Clinton. But it was precisely Hopkins's toughness, her formidable personality, that made her potential partner material in the first place. What if she had indeed changed her personal style and appearance, taken "a course at charm school," and adopted a more sweetness-and-light demeanor, who would have taken her seriously as a senior manage or a corporate partner? She wouldn't have been taken seriously. She would have been, in short, Sarah Palin: a bimbo instead of a bitch.

Tuesday, October 14, 2008

Keeping sexual material away from sex offenders (2 of 2)

Continued from yesteday's discussion of State v. Bahl:

Bahl was convicted of rape and burglary, and his sentence included community custody for life, with the following conditions:
  1. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
  2. Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
  3. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.
(The "except as provided for therapeutic purposes" is a nice touch. One imagines the corrections officer providing a copy of The Joy of Sex to teach the offneder about healthy sexuality, or perhaps a masturbation device to sate his lustful urges. Not likely, though.)

The Washington State Supreme Court ruled that the pornography and "sexual stimulus material" conditions were unconstitutionally vague, and must be revised. It noted that several other courts have invalidated conditions prohibiting "pornography," on the ground that the term has no clear meaning; it is, said the court, "entirely subject" and "inherently vague." It could include anything from Playboy to the works of the Renaissance masters. To make matters worse, the CCO has unfettered discretion to "direct" what is included. Ironically, the court contrasted "pornography" to the narrower "obscenity," which (supposedly) has a "precise legal definition."

Bahl argued that the term "sexual stimulus material" in the second condition is similarly vague, and that it too improperly delegates authority to define the term to the CCO and therapist. The court did not explicitly agree or disagree, but instead said that it was too vague because Bahl has not been diagnosed with any "deviancy" and thus could not know what material might be thought to stimulate his "particular deviancy."

The court found the adult business condition permissible, reasoning that it was a flat ban on visiting "adult bookstores, adult dance clubs, and the like." Unlike "pornography," there is a state statute specifically defining what is "sexually explicit." One judge disagreed, saying it was not clear whether Bahl was prohibited from "shopping for lingerie at the local mall," "perusing a collection of Playboy magazines," or "attending a Karen Finley performance."

The court did not say what might be permissible on resentencing, though one judge opined that it would be okay to substitute "sexually explicit material" for "pornography." The court appeared to implicitly accept that imposing broad restrictions on a released offender's access to sexual materials was permissible, so long as the limitations are clearly defined.

Notably, though, the court did not discuss how far the meaning of "establishments whose primary business pertains to sexually explicit or erotic material" could reach. Can a telephone or Internet service be such an "establishment"? If applied to the Internet, would it sweep in such diverse things as porn and cam sites, "adult" dating sites, and sites providing explicit information about safer sex and sexual health?

Monday, October 13, 2008

Belated Coming Out Day Post

Bad Things happen when political and legal decisions are made without the participation of those people most affected - and even worse, when no one in the conversation even knows any of those people personally. This is what we mean when we say that coming out it a political act. But for many, coming out is still a dicey and difficult proposition, so those conversations remain deeply and dangerously impoverished.

In this instance, I'm not talking about coming out as gay or lesbian; I'm talking about coming out as a sex worker. Tobi Hill-Meyer at Bilerico talks about feeling "a desperate need to be silent about my experiences" doing sex work:
The obvious issue of police harassment aside, I felt like anything that I could say might have harmful consequences.

If I talked about the parts of my work that were painful, I feared I would be perpetuating the myth that sex workers are only victims without any agency. If I talked about the parts I enjoyed, I feared I would be silencing those who don't enjoy their work. If I talked about being a trans sex worker, I feared I'd perpetuate the stereotype that all trans women are sex workers. And if I talked about the role sex work plays in my activism and activist priorities, I was afraid that all the non-profit and political organizations I worked with would shrink away from me in fear of being associated such a politically unsavory population.

That last one was one of the biggest motivators to break that pattern and actually start talking about this issue. When I take stock of the LGBT issues that are impacting my community, I see police harassment, prisoner rights, decriminalization, health care access, and punitive laws that unduly pile punishment after punishment onto "unsavory" survival crimes such as sex work, at the top of my agenda. Yet the LGBT rights organizations around me are barely even aware of those as LGBT issues.

Hop over and read the full post.

Keeping sexual material away from sex offenders (1 of 2)

Nowadays it is common to impose conditions of release on sex offenders that place broad limitations on their access to sexually explicit materials. Here are some conditions of community custody imposed on a Washington state man convicted of rape:
  1. Do not possess or access pornographic materials, as directed by the supervising Community Corrections Officer (CCO).
  2. Do not possess or control sexual stimulus material for your particular deviancy as defined by the supervising CCO and therapist except as provided for therapeutic purposes.
  3. Do not frequent establishments whose primary business pertains to sexually explicit or erotic material.
The logic of these conditions is, in my view, deeply suspect. They appear to rest on the unproven assumption that - as stated by one justice of the Washington Supreme Court - the offender "has difficulty controlling himself when he is sexually stimulated," and therefore viewing sexually explicit materials will lead the offender to commit further offenses.

Veterans and students of the feminist sex wars will recognize this as a version of the old canard, "Pornography is the theory, rape is the practice." It has long been argued, by those who favor subjecting to pornography to legal prohibition and/or strengthened social stigmatization, that (strong thesis) pornography cultivates violent sexual impulses and thereby creates rapists, or at least (weak thesis) that it feeds the impulses of those predisposed to commit sex crimes. Many have chronicled the history of these debates; suffice to say that neither thesis is supported by the evidence of social science (e.g., here). Given that this logic has been rejected by courts and legislatures as a basis for restricting access to pornography and adult businesses by the public at large, it makes little sense to impose such restrictions on

Yet in the context of the current social panic around sex offenders, applying this logic to conditions of release goes virtually unquestioned. Moreover, a lack of empirical support is probably not sufficient for render these conditions constitutionally suspect, given the lenient "reasonableness" standard usually applied to conditions of release.

On the other hand, claims that conditions of this nature are overly vague have been successful. Thus, in State v. Bahl, Washington's high court ruled that two of the above three conditions were unconstitutional because they were too vague. Tomorrow I'll discuss this case in detail.

Saturday, October 11, 2008

Lawyers for FLDS children profiled in ABA Journal

This month's ABA Journal has a fascinating feature on the Texas FLDS custody debacle this past spring, and the volunteer lawyers who represented the more than 450 children removed by the State of Texas. One of those lawyers is Susan L. Hays, who founded an organization (Jane's Due Process) that helps Texas teens obtain abortions. Hays describes how the experience challenged her expectations about FLDS women.

The article's penultimate paragraph quotes another lawyer with a sentiment one rarely hears when Mormon fundamentalism and polygamy come up:

“The problem is not really polygamy; the problem is the belief that women and children are unilaterally the property of the priesthood, and they raise the girls from the cradle to grow up and be mothers and plural wives. It’s all the girls have ever known.”

Hardly anyone ever considers these things separately, of course; in upholding Utah's criminal polygamy law, the state's high court said the law was justified because of the crimes against women and children associated with polygamy.

Friday, October 10, 2008

Connecticut Justices struggle with "political powerlessness"

As with previous marriage litigation, the Connecticut Justices struggled with the question of whether gay and lesbian people are "politically powerless." In fact, this was a primary point of disagreement for two of the dissenters. I've previously opined that in deciding whether a classification in law merits heightened scrutiny, courts should not try to decide whether an affected group is "politically powerless." I argued that this test is illogical, leads to absurd results, and is not required by Supreme Court precedent.

The majority on the Connecticut court held that meeting the "politically powerless" prong is not necessary where a group is clearly a discrete minority of the population. In other words, a group has to be either a discrete minority or politically powerless. Which is how I read the case law.

The majority nevertheless went on to discuss the "powerlessness" prong at length, because it represented the State's main argument on the question of "quasi-suspect class" status, and because other courts had relied on this prong even though they recognized that gay and lesbian people are a discrete minority. Having (unnecessarily) taken up this prong, the majority struggles to make sense of it in light of the history of race and gender cases. It ends up with this:
We apply this facet of the suspectness inquiry not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power but, rather, for the purpose of determining whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means. Consequently, a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process. Applying this standard, we have little difficulty in concluding that gay persons are entitled to heightened constitutional protection despite some recent political progress.
In other words, a group doesn't have to be totally powerless, it just has to be powerless enough. At the risk of sounding like Justice Scalia, this is a mushy, contentless test if there ever was one. It comes down to, "we don't think political progress is occurring fast enough in the appropriate direction." This sort of call isn't necessary and courts can and should avoid it.

As the majority notes, "no other court has undertaken a thorough analysis of this factor." Happily, this court recognizes that its discussion of "powerlessness" is pure dicta, and one may hope that its earnest but messy attempt to make sense of this test encourages other courts to avoid basing their decisions on it.

Connecticut Justices get it right on immutability

From the majority opinion (citations omitted):
A number of courts that have considered this factor have rejected the claim that sexual orientation is an immutable characteristic. Other courts, however, as well as many, if not most, scholarly commentators, have reached a contrary conclusion. Although we do not doubt that sexual orientation—heterosexual or homosexual— is highly resistant to change, it is not necessary for us to decide whether sexual orientation is immutable in the same way and to the same extent that race, national origin and gender are immutable, because, even if it is not, the plaintiffs nonetheless have established that they fully satisfy this consideration.

Sexual intimacy is ‘‘a sensitive, key relationship of human existence, central to . . . the development of human personality . . . .’’ Thus, the United States Supreme Court has recognized that, because ‘‘the protected right of homosexual adults to engage in intimate, consensual conduct . . . [represents] an integral part of human freedom’’; individual decisions by consenting adults concerning the intimacies of their physical relationships are entitled to constitutional protection. Indeed, it is indisputable that sexual orientation ‘‘forms a significant part of a person’s identity.’’ It is equally apparent that, ‘‘[b]ecause a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.’’

In view of the central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution. This prong of the suspectness inquiry surely is satisfied when, as in the present case, the identifying trait is ‘‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it] . . . .’’ In other words, gay persons, because they are characterized by a ‘‘central, defining [trait] of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self’’ are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic. To decide otherwise would be to penalize someone for being unable or unwilling to ‘‘change . . . a central aspect of individual and group identity," a result repugnant ‘‘to the values animating the constitutional ideal of equal protection of the laws.’’
This is clearly the correct analysis, and hopefully other courts will now begin to come around - including federal courts considering "Don't Ask, Don't Tell." Of course, recent decisions applying intermediate scrutiny to limit on sexual privacy ought to lead to the same destination.

Connecticut Supreme Court rules for marriage equality

Connecticut's legislature created civil unions in 2005 (without prompting from any court). This put same-sex couples on the same legal footing as couples in California, albeit under a slightly different nomenclature. Now the state's high court sides with the California court:
We conclude that, in light of the history of pernicious discrimination faced by gay men and lesbians,1 and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosexual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orientation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes discriminating against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficient justification for excluding same sex couples from the institution of marriage.
Look for full coverage at any number of other legal blogs; I'm still working on some other posts. But this decision is very encouraging, and (I suspect) unlikely to be overturned at the ballot box. The full decision is here (PDF), and here are the three dissents.

Thursday, October 9, 2008

The CIA can do it to you, but you can't do it on film

Apparently "humiliating and degrading treatment" doesn't qualify as torture, but its depiction does qualify as obscenity. This from a Tampa judge who sentenced pornographer and sleazeball "Max Hardcore" to nearly four years in the slammer. As defense counsel explained to AVN, he faced sentencing enhancements for making money off the offending videos, for use of the Internet to distribute them, for a previous DUI, and for "sadomasochistic" content.

The defense argued that since the videos at issue didn't depict acts causing serious injury or pain, and therefore was not "sadistic or masochistic" material meriting an increased sentence. As Glenn Greenwald at observes, this is similar to the Bush Administration's legal defense of its "enhanced interrogation techniques," save that here the prosecution if for the depiction of consensual conduct rather than for forcing acts upon unwilling persons. But the judge said that in the context of an obscenity prosecution this "isn't even a close call" - no one needs to get hurt to earn you a longer prison sentence.

So: if you're a federal agent, you can, say, tie someone up and pee on them, with no fear of legal consequences. But if you tie someone up and pee on them with their consent, and you dare to record the heinous act, you could go to federal prison. (But please, if you do, at least do it with more class than this guy.)

H/t to let them eat pro-s/m feminist safe spaces.

Tuesday, October 7, 2008

Pro dommes team up to tackle recession, repression

From Gothamist:
After a number of vice squad crackdowns on Manhattan S&M clubs, some outraged dominatrices are bonding together to defend their profession, which they say has been wrongly maligned as prostitution. The Post sent a reporter over to Dungeon Alley (a cluster of S&M clubs in Midtown) and Chelsea's Le Salon De Sade, where the dominatrices "were dressed to the hilt with no one to flog. " De Sade's owner Mistress Johanna says, "It's never bee worse. Business is down 70 percent. We've had all these busts, and now the economy is out of control. The uncertainty is torturing us." Investigators say that the raided clubs were essentially prostitution houses, but a lawyer hired by over a dozen dominatrices and dungeon owners insists
"everyone was operating under the belief that what they were doing was legal." Besides retaining an attorney, the group is forming a union and even a political action committee (DomPAC!) to lobby lawmakers for legal protection.

A few observations: pro dommes (and the few pro submissives out there) have suffered from the vague wording and aggressive enforcement of prostitution and adult business laws. The "legal protection" they're seeking is clarification that what they are doing -- BDSM with no direct sexual contact -- falls on the right side of the law. Of course, some pro dommes do break the rules, and one imagines that organizing will produce more effective peer pressure to strictly obey the law for the good of all; the more it appears that prostitution is going on, the more all pro dommes will face intimidation and possible arrest. Finally, one wonders what else these pros can do to reduced demand in what - even in NYC - is a limited marketplace. A PR campaign? Whatever their plans, I wish this effort the best of luck.

Friday, October 3, 2008

Evangelicals claim pro-gay "book-banning"

Anti-gay evangelicals have scored a media coup with a Washington Post article titled "Banned Books, Chapter 2," about efforts to donate books critical of marriage equality and advocating "reparative therapy" to a Fairfax County, VA high school library:
More than 40 students, many wearing black T-shirts stamped with the words "Closing Books Shuts Out Ideas," said they tried to donate more than 100 books about homosexuality to more than a dozen high school libraries in the past year. The initiative, organized by Colorado Springs-based Focus on the Family. was intended to add a conservative Christian perspective to shelves that the students said are stocked with "pro-gay" books.
What's remarkable about this story is that this group has succeeded in framing the schools' refusal of donated books as "book-banning." "Book-banning" means forbidding access to books, and in the context of libraries it ordinarily means removing them from the shelves because some people object to them. It ordinarily does not mean refusing to put on the shelves any book that someone wants there. If that is "book-banning," then a library must accept any book anyone donates to them.

It may surprise you to learn that the Supreme Court has never definitively determined when decisions by libraries about their collections are limited by the First Amendment. As conservative scholar Eugene Volokh noted in a recent post (inspired by the Palin library controversy), the leading case is Island Trees Union Free School District v. Pico (1982). In that case the Court fractured over a library's removal of several books, with no majority opinion. To simplify, four justices took the First Amendment limited content-based decisions to remove books, but not decisions to acquire books. Four justices took the view that neither kind of decision is subject to First Amendment scrutiny. And the late Justice White declined to take a position on the issue, saying it wasn't necessary to decide the case. (The court fractured similarly in a 2003 case regarding library internet access.)

It's not clear whether where today's justices would come down on library removal decisions, but it seems pretty clear to me that they would rejected searching scrutiny of acquisition decisions, for reasons Justice Breyer stated in 2003:
There is only so much money and so much shelf space, and the necessity to choose some material and reject the rest justifies the effort to be selective with an eye to demand, quality, and the object of maintaining the library as a place of civilized enquiry by widely different sorts of people.
Fairfax County defended its decision on the grounds that the books failed to met content-neutral acquisitions standards -- having two positive reviews in a recognized journal -- and "were heavy on scripture but light on research." Even where books are donated, libraries must still expend resources to catalogue and shelve, and of course shelf space is still used. If the library had to accept any book Focus on the Family wanted it to carry, its shelves could soon be crowded by religious tracts, with precious little room for science or literature. Advocacy groups might enter a library donations arms race.

All of which explains why the folks complaining about "book-banning" in Fairfax County are not invoking the First Amendment or threatening legal action; this is a publicity exercise, not a serious dispute.

Also - do high school students check out books from school libraries? I thought my high school was pretty well-funded, but its small library had little to offer next to my neighborhood branch. It may be that school libraries have greater symbolic than real importance as sources of information and ideas for youth.

Thursday, October 2, 2008

EEOC opposes HHS "provider conscience" rule

The Equal Employment Opportunity Commission has joined the chorus of criticism of the Department of Health & Human Services's proposed "Provider Conscience" rule, which many are concerned could limit access to contraception:
In its comment, EEOC says Title VII of the 1964 Civil Rights Act ensures a constitutionally sound right to the accommodation of religious practices "for all employees, including health care employees." The proposed rule, purporting to create "an absolute right to religious accommodation," detracts from the employer’s ability to show "undue hardship" and throws off the balance of Title VII analysis, it says.
Unsurprisingly, HHS says it has received a "higher than usual" number of comments on this proposal, for which the comment period just ended.

Via Workplace Profs Blog.