Miscellaneous updates

The Pittsburgh Post-Gazette reports on the upcoming trial in U.S. v. Extreme Associates, with the headline: "Obscenity case begs question: Whose standard? Extreme Associates trial may be catalyst for change." (H/t How Appealing.)

Womanist Musings discusses the invisibility of Black LGBT people and looks at some relevant data. Notably, the post points to one survey showing that among Black LGBT folks, relationship recognition ranks third as a movement priority, after tackling HIV/AIDS and hate violence. (H/t Feministing.)

hunter of justice decries the lack of any openly LGBT federal judges at the appellate level, and reports on a gay British judge's revelation that he was subjected to veritable witch hunt when he first sought appointment in 1994.

Greta Christina asks why, under the First Amendment, we treat sex differently from, well, everything else.

Sex in the Public Square notes that Sweden's National Board of Health & Welfare has eliminated the classification of gender variance, BDSM and sexual fetishes and psychological disorders. Sweden is also set to allow same-sex couples to marry come Spring. So I'll forgive the Swedes, for the moment, their flawed approach to reforming prostitution laws.

Miscellaneous updates

Today's LA Times reports that porn king Larry Flynt is suing his nephews, apparently on a basis of alleged trademark violation, for using the Flynt name on what he argues are inferior adult videos that are tarnishing his good name. After all everyone knows the Flynt name stands for refinement and good taste. Says one of the defendants: ""The fact of the matter is my name is Flynt. If I can't use my name to do business, then what kind of society, what kind of world is that?" He may well have a point. I know little to nothing about IP law, but I suspect the case to turn on just how the name is used, and whether buyers would be confused about which Flynt products are which.

The NY Times reports on the government's bid for Supreme Court review in U.S. v. Stevens, the (so far successful) challenge to a federal ban on depictions on animal cruelty. The article notes that the law was designed to target fetishistic "crush videos" but has been used by the Justice Department to go after dogfight videos. It also notes that the Supreme Court is likely to take the case, since the lower court struck down a federal statute. The case is particularly interesting because it poses the question whether First Amendment exceptions for obscenity and child pornography can be expanded to reach other "harmful" and "low-value" speech.

And marriage equality group Freedom to Marry has issued an analysis of the Prop 8 vote that includes these findings:

• Party, ideology, religious attendance, age were the four major factors that drove voters' approval.
• Higher Black and Latino support was largely explained by higher religious attendance; when controlling for this factor the racial differences largely disappeared.
• Compared to the 2000 vote, support for marriage equality grew significantly across every demographic group (age, race, religion) except Republicans.
  

Finally, the en banc Ninth Circuit has allowed gay San Diego lesbians and agnostics to move forward with a claim that the city's lease of park land to the Boy Scots violates the California Constitution's ban on religious preferences. The court ruled that the plaintiff's had standing to sue based on their use of, and exclusion from certain functions on, the city-owned property, and sent the case to the state's high court.

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 Salon.com 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.

No protection for producer's qualms about "To Catch a Predator"

The Seventh Circuit U.S. Court of Appeals just threw out (PDF) the suit of a TV producer who was fired after she refused to continue work on NBC's "To Catch a Predator," citing ethical qualms.

As a journalist and producer for NBC, one of Bartel’s main responsibilities was to ensure compliance with the ethical standards of journalism and NBC’s internal guidelines. Bartel found numerous aspects of the Predator segment production to be in violation of these standards and guidelines. She believed, for example, that NBC was directly or indirectly to the law enforcement officers participating in the stings. She thought it wrong that “Perverted Justice” representatives [the group that NBC works with to lure the subjects of the show] did not provide NBC with compete transcripts of their conversations with the targets, and that they did not identify all of their volunteers to NBC. She also objected that Dateline and Perverted Justice were staging the arrests in a way that maximized the humiliation of the target. Bartel informed her superiors at NBC of these problems, but they took no steps to cure them. Bartel then told her supervisors that she could not produce the segment.

For more background and the complaint, see The Smoking Gun. H/t to How Appealing.

Bartel relied on New York case law ruling that an attorney employment contract implicitly included protection for actions taken based on ethical duties. The court refused to extend this implicit contract protection for journalists, nothing that New York courts had already refused to extend it to doctors. Once again, lawyers - including judges - think their profession is unique and important above all others. The Seventh Circuit may have been right in its view of New York's judicial precedent, but it is disturbing that lawyers, and lawyers alone, should be granted this implicit protection.

I've never watched the "TCAP" on Dateline, but the concept of it has always struck me as a creepy and dubious undertaking. Other bloggers have noted that while NBC dresses up its crass sensationalism as a public service, the program arguably gives its audience a moralizing excuse to indulge their own fascination with sexuality and youth. It also contributes to the current moral panic about sex offenders, which has given us banishment laws and other constitutionally dubious and counterproductive legislation.

Clothed pole dancing aerobics = "adult business"??

Today we'll discuss that favorite bugaboo of feminist discussions on sexuality and pop culture: pole-dancing aerobics!

No, we're not here to debate whether this popular and lucrative trend is is a route to sexual empowerment, a symbol of a pernicious "raunch culture," or is tacky but harmless fun. Instead, we're discussing something that I know is also dear to the hearts of feminist readers here: zoning. Come on, you know you love zoning, especially zoning + gyration.


Stephanie Babines is a fitness instructor whose business, Oh My You're Gorgeous, offers classes in hula, salsa, belly dancing and yes, pole dancing. As I need hardly tell you, pole dancing is a great workout for your thighs and abs - and it's all totally clothed. But when Babines sought a permit to move her instruction from house parties and rented venues into a storefront dance studio, Adams Township, PA rejected the permit. The local officer who made the call said he didn't bother interviewing Babines because her website looked all sexy. The Legal Satyricon quotes the complaint:

[The enforcement officer] said he did not need to interview Ms. Babines regarding her intentions for the property because her website spoke for itself. He testified that regardless of whether the activity involved nudity, the dance forms Ms. Babines intended to teach were “provocative” and contained sexual “innuendo,” and her dance studio should therefore be classified as an “adult business.”

[He] further testified that the pink-and-black color scheme of Ms. Babines’ website and the high-heeled shoe in her logo indicated to him that she intended to operate an “adult business” at the 222 Mars-Valencia Road property.

No, really!! See, it's in the New York Times, the AP wire, and the Wall Street Journal's blog!

A cheeky Pittsburgh columnist basks in the positive attention this is getting for nearby Adams Township

I'm probably going to get into trouble with my editors, but I'm going to be blunt and call Babines exactly what she is: Someone possessing a master's degree in project management who currently works as a senior information technology professional.

Would you want someone with that track record starting a business in your community?

Thankfully for the righteous, Babines selected the wrong locale to try to open her den of iniquity. She chose Adams Township -- a place where the moral indignation runs deep, and the legal expenses appear ready to run high.

Thank God for the ACLU - they'll stick up for you when everyone else thinks it's beneath their dignity. The Pennsylvania ACLU filed suit on Babines's behalf last week. Their complaint (PDF) recounts the facts in interesting detail - from the development of sexy aerobics as a national trend to the descriptions of OMYG classes, and calls the town out for violating the First Amendment and misapplying its own ordinance.

Adams Township is going to lose. The Supreme Court has upheld restrictive zoning ordinances applies to strip clubs on the basis of dubious "secondary effects" on the local community. The court will have no difficulty saying that this case is different: you're unlikely to have drunks spilling out into the streets and dancers engaging in prostitution when everyone is there to dance, not watch.

More to the point, the "secondary effects" doctrine is based on the assumption that exotic dancing sits at the "outer perimeter of the First Amendment" - it enjoys minimal protection because it ostensibly it is only barely "speech." Here we're talking about not just booty-shaking, but booty-shaking classes. Thus, the court won't have to address the very interesting question of where clothed pole-dance aerobics sits with respect to the "perimeter" of protected speech.

As for Adams Township, presumably their campaign to stamp out "innuendo" and "provocative" businesses will soon extend to shuttering bars and nightclubs and blocking the Fox network.

OT: How Judges Write (Medicaid Edition)

From a New York appellate decision issued on Tuesday comes this gem of clarity:

Accordingly, we grant the petition to the extent of annulling so much of the DOH's determination as affirmed so much of the DSS's determination as denied that portion of the petitioner's application which was to increase the Medicaid minimum monthly maintenance needs allowance to include expenses for housing, utilities, automobile, Medicare, food, clothing, medical care, and home maintenance, vacating so much of the DSS's determination as denied that portion of the application, and granting that portion of the application to the extent of remitting the matter to the DOH for the calculation of the increase in the minimum monthly maintenance needs allowance so that a portion of his income will be made available to his wife.

Ouch. Good decision, bad writing! This could be an ongoing series.

Quick headlines on abortion, marriage, speech

• Via RHRealityCheck, Justice Ginsburg had some recent comments about the state of abortion rights that you should read. H/t to Nan Hunter.

• Via Leonard Link, a New York judge has rejected a legal challenge to Gov. Paterson's directive to recognize out-of-state same-sex marriages, saying the Governor was simply implementing established state law.

• The UK Guardian had an interesting piece on Tuesday on Mexico City's ground-breaking law permitting abortion. H/t to RHRealityCheck.

• Via Feministing and the Legal Satyricon: A California woman was expelled from a Social Security office last week for wearing a t-shirt reading simply "Lesbian.com." (Wandered over to that URL if you like; there's not much to look at.) As Marc Randazza notes, it is black-letter constitutional law that you can't do that. Turns out the guard was, surprise, working for a private company under contract with Homeland Security. Someone at Homeland Security evidently took first-year Con Law, and they apologized for the action as "inappropriate and unacceptable."

Medicaid and gender transition; High school GSA victory; Mixed surrogacy decisions

NY federal court dismisses challenge to New York's Medicaid exclusion for gender transition therapies. The case is Casillas v. Daines, 2008 WL3157825 (S.D.N.Y. Aug. 5, 2008), and concerns a trans woman who had hormone therapy covered by New York Medicaid for over 20 years, until it was cut off a few years ago by a new state rule. Interesting posts about the case are at Leonard Link and hunter for justice. There's also an article in the New York Law Journal. Previous litigation on this issue has been mixed; see The Necessity of Sex Change: A Struggle for Trans and Intersex Liberties (PDF) by Noa Ben-Asher, 29 Harv. J. L. & Gender 51 (2006).

This decision rests on a federal regulation that says states may "place appropriate limits" on Medicaid services through "cost utilization procedures." This suggests a broad discretion to exclude medically necessary services, even if they are otherwise mandated by the law. It cuts very much against the grain of the statutory text, and the court seems to read is granting states broad discretion to cut off services based on cost.

Technically, the decision involves whether the the plaintiff can to sue enforce the Medicaid Act under 42 U.S.C. Section 1983, which provides various remedies for violations of federal law; it does not necessarily resolve whether the Pataki-era regulation actually violates federal law or not (a question that could be presented by, for example, a federal preemption claim). But if "utilization control" reg is read - as the court does here - as limiting the statutory text of Medicaid, proving an actual violation could be an uphill battle as well.

Whatever the legal difficulties of challenging such an exclusion, I very much hopes that, as Arthur Leonard suggests, the much more progressive Paterson administration will be open to reversing this Pataki-era rule.

Via Feministing: Highschool Gay-Straight Alliance wins groundbreaking lawsuit in FL. Read the opinion in Gonzalez v. School Board of Okeechobee County here (PDF).

A Florida school district justified banning a gay-straight alliance because it

1) is necessary to maintain the integrity of the abstinence only program, 2) will avoid unhealthy premature sexualization of students, 3) will protect GSA members from the risk of contact with potentially dangerous outside adult influences, and 4) will ensure that GSA members do not have access to adult only materials.

The district even argued that simply saying it's okay to have a non-heterosexual identity is inconsistent with federal abstinence-only standards! The court saw through each of these transparently bogus justifications. I found particularly interesting the court's observation that "When directed towards non-heterosexual students, [the district's] abstinence only message loses the core of its health and safety and child welfare component because a marriage-dependant abstinence only message is of de minimus relevance to non-heterosexuals" who cannot legally marry in Florida. This is relevant here because the federal Equal Access Act has an exception for promoting students' well-being - and the court held that this exception can't be satisfied by banning a gay-straight alliance in favor of a rigid abstinence-only-until-marriage curriculum. The court also stated clearly that the district's other purported justifications were "speculative at best" and amounted to an argument for banning all student speech on sex

And from Leonard Link:New Connecticut Decisions Differ on Enforcement of Gestational Surrogacy Agreements Involving Gay Male Couples:

These different results arise partly because a recent amendment to the Connecticut law governing birth certificates, which specifically mentions gestational surrogacy contracts, does not go into effect until October 1 of this year, leaving the courts to try to determine how to handle this situation in light of prior statutes that make no mention of such agreements. In addition, the DPH, which plays the crucial role in issuing birth certificates, has taken the firm position that only biological or adoptive parents should be listed on the certificates.

...

There is a pressing need here for some clarity, as it appears from the nearly simultaneous appearance of three Connecticut cases involving gay couples that Connecticut’s general receptiveness to enforcing gestational surrogacy contracts – as evidenced by numerous prior decisions involving married couples contracting with women to bear children for them – has made the state a favored jurisdiction for such agreements. ...

OT: Does our first modern "war crimes" case involve any war crimes?

Lawyers reading this have probably already sampled the already copious commentary out there about the Hamdan trial and verdict. For those who are curious, however, I commend to you Marty Lederman's post at Balkinization. In short, I think it is truly remarkable that the first US "war crimes" trial since the
Civil War involved charges that bear such little resemblence to the cases before other war crimes tribunals around the world (e.g., Sierra Leone, Rwanda, former Yugoslavia, Cambodia, and the various cases now before the International Criminal Court), or to historical war crimes cases.

Same-sex marriages to be "edited" out of 2010 Census

The Census Bureau has said that it will "edit" out same-sex marriages from the 2010 Census, purportedly to comply with the Defense of Marriage Act. The Census published a technical note in 2000 explaining why it would count "spouse" responses from same-sex couples as "unmarried partner" responses. At the time, two Census Bureau staffers produced a working paper arguing that "editing" these response in this way was distorting the demographic picture of same-sex couple households.

In 2000, of course, no state legally recognized same-sex marriages (at least not as a general matter, the unusual cases of some transgender people and their spouses notwithstanding), so (as Arthur Leonard notes) the question was merely theoretical (or to look at it in another way, one could assume that same-sex couples saying they were married were not, in fact, legally married). Now, California and Massachusetts do recognized marriage without regard to sex, so adhering to the same policy - even in those two states - means that couples who are in fact legally married in their state of residence will be shown to be "unmarried."

DOMA may or may not require the policy. Arguably, it only prohibits recognition of same-sex marriage for purposes of substantive law, not for the Census. (DOMA's definitional section reads: "In determining the meaning of any Act of Congress, or of any ruling, regulation or interpretation of the various administrative bureaus and agencies of the United States....") Moreover, even if it applied DOMA surely wouldn't bar the Bureau from reclassifying couples as unmarried, but breaking out these couples statistically from other "unmarried" couples, thus largely eliminating the loss of valuable data. If I read the news coverage correctly, the Bureau is in fact keeping track of these couples separately, but not in their published data; in published data, they'll be included with all other "unmarried partners."

Could this policy be challenged in court? Of course, you couldn't just sue for a declaratory judgment on the applicability of DOMA, because the Bureau could have created this policy on its own without DOMA. The Census Clause of the Constitution is really only concerned with counting heads for purposes of apportioning U.S. House sites. Beyond that, Title 13 of the U.S. Code pretty much lets the Census Bureau decide what other information to collect beyond that, so they don't have to ask about marital status at all. Past litigation over the census has centered on undercounting, overcounting, and residence determinations. Unlike those cases, whether couples are counted as married or unmarried doesn't affect the apportionment of House seats, nor is it apparent that it would affect funds provided private or public agencies that are based on population data.

The remaining obvious ground for a challenge is the Equal Protection right of same-sex couples who are legally married in their state of residence. Although the harm to such couples may be purely symbolic, this kind of injury is sufficient for standing if it sufficiently particularized, which it is here. Cf. Heckler v. Matthews, 465 U.S. 728, 737 (1984) (Social Security recipient had standing to challenge gender-based dependency requirement even if it did not affect the amount of his benefits).

The marriage equality movement has generally avoided the federal courts in favor of pursuing protections under state law, for sound strategic reasons. With a federal bench that is more conservative than ever, the chance that marriage litigation would set bad precedent is unacceptable. But might this case be different? The treatment of legally married couples in the Census presents a narrow question that is potentially quite distinct from the federal recognition of marriage for purposes of substantive legal protections and obligations, so that the biases of the judiciary may be less and any negative precedent could be narrowly cabined.

Of course, this was presumably the unsuccessful strategic thinking behind the federal court challenge to Nebraska's broad ban on recognition of same-sex relationships (Citizens for Equal Protection v. Bruning). While the plaintiffs tried to narrowly focus the case on the across-the-board prohibition of any form of relationship recognition, the Eighth Circuit produced a major negative federal precedent on the issue of marriage. One might hope that the Census dispute provides a clearer distinction, but one couldn't guarantee it. So while it seems on the surface that the Census policy could be challenged under the Equal Protection Clause, I'm not sure whether it's wise (from the point of view of same-sex couples) or likely. Which is unfortunate, because in light of the changes in the American legal landscape since 2000 - i.e., that there is now a substantial population of legally married same-sex couples in the United States - the Bureau's policy is almost certainly unconstitutional.

Public opinion divided on marriage, Supreme Court

Expect some more substantive postings to come on family law and other matters, but for now I'll just pass on these results from a new Quinnipiac University poll:

"American voters oppose same-sex marriage and they don't want to recognize same-sex marriages performed in other states, but by a narrow margin, they don't want their states to ban it," said Maurice Carroll, director of the Quinnipiac University Polling Institute. "And they don't want to amend the Constitution on this issue. "Given a range of choices, they divide into thirds - for gay marriage, for civil unions, for a complete ban."

There are, of course, many ways to spin this: you can focus on majority opposition to same-same marriage as such, or on opposition to state and federal bans. Also, you can focus on marriage or you can focus on recognition and rights: While it's true that only a third of Americans say plain and simple that they support marriage equality, it's also true that only a third of Americans oppose legal recognition and rights for same-sex couples. That represents a huge shift in opinion over the last several years. (What's not news is that women are still significantly more likely to support marriage equality than men.)

And on the Court:

Looking at the U.S. Supreme Court and social issues, American voters narrowly disapprove 43 - 39 percent of the job the Court is doing, the lowest rating in five years of Quinnipiac University surveys on the Court and the first time the Court has received a negative score. Voters say 42 - 33 percent that the Supreme Court is moving in the wrong direction.

While 33 percent of voters say the Court is "about right," 25 percent say it is too liberal and 31 percent say it is too conservative.

So only a third of Americans think the Court's ideological balance is right, but the rest are divided between "too liberal" and "too conservative." It would be very interesting to follow these questions up by asking for specific examples of what the Court has been doing. Does this result reflect division of Americans on the high-profile social issues with which the Court is so often associated? Or do the people who think the Court is "too liberal" have different decisions and different issues in mind than the people who think it is "too conservative"?

U.S. v. Stevens: Violence good, prurience bad

As I mentioned, the Third Circuit this week in United States v. Stevens (PDF) held that a federal law, 18 U.S.C. Section 48, that criminalizes the sale of depictions of animal cruelty, violates the First Amendment. The court refused to treat depictions of animal cruelty as a category of unprotected speech.

Why? The court stated a lot of reasons, but I think it comes down to this: there's no sex. This is, as the court put it, "non-prurient" speech, and the same reasons that have been invoked to ban sexual speech can't be applied to ban this sort of speech, which is about depictions of cruelty with no sexual element.

The court even suggested that the statute would have been unconstitutional had Congress limited its scope to depictions of animal cruelty with sexual elements. It noted that the original impetus for the law was concern about "crush videos," a purported fetish genre in which leggy women crush small animals beneath their heels. The court quotes a House report: "In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter." The court essentially faults Congress for deviating (so to speak) from this narrow focus to a "broader focus on animal cruelty."

And while the court states some other reasons why this change in focus makes a difference, ultimately it comes down to this: the First Amendment, as construed by the courts, treats sexual speech differently and much less favorably than nonsexual speech, however objectionable it may be. The court specifically notes that the defendant in this case was not accused of producing "crush videos" but rather videos of dog fights. The opinion seems strongly to imply that if Stevens's dog fight videos had but included "a kind of dominatrix patter," sending him to jail would have been just fine.

And this is what is so insane about obscenity. To my mind, there is no compelling difference between criminalizing the distribution of depictions of child sexual abuse, and criminalizing the distribution of depictions of serious physical - but not sexual - child abuse. The fact is that we're talking about marketing a crime. The analogy between this and dog-fighting videos may or may not be sound, but the sexual element shouldn't make the difference. That it does so signals a basic fear and loathing of sexuality, above and beyond violence, at the core of our obscenity doctrine, which allows the criminalization of depictions of perfectly legal activities.

There is, of course, more to the decision:

The Government in this case argued that the law was closely analogous to those banning child pornography, and should be upheld for basically the same reasons. At face value, it would seem that some of the key justifications for banning child pornography apply to depictions of animal cruelty: the material at issue depicts criminal conduct that society has an interest in deterring, and the market of depictions of such cruelty creates an incentive for cruel acts. A key difference is that unlike child pornography, it cannot be said that the very distribution of such materials re-victimizes the animals that experience that cruelty. (Aside from the obvious reasons, the animals rarely survive.)

The court rejected this analogy, and ultimately I think its conclusion came down to this, the opening of the opinion:

The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in over twenty-five years.

In other words, this would be a significant innovation in First Amendment law, and we're not going to be the ones to make it, however good the arguments.

The court said a lot more than this, but most of what it said was pretty mushy. Aside from the distinction I've drawn above with child pornography, the court said this:

Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.

While most people would probably agree, the court admits that where the "compelling" cutoff lies "has not always been crystal clear." For the court, it comes down to this: the precedents generally concern the interests of humans. (The court tries to ground this distinction in a Free Exercise decision [Church of the Lukumi Babalu Aye v. City of Hialeah] that protected a religious group's right to sacrifice animals, but that case seems inapposite: there the Supreme Court didn't so much say preventing animal cruelty wasn't a compelling interest as it said that the government couldn't permit animal killings for most reasons but ban it when done for religious reasons.)

The court also found lacking the animal-cruelty statute's exception for works with "serious religious, political, scientific, educational, journalistic, historical, or artistic value." The difference is that with obscenity the work must be "taken as a whole," whereas the animal-cruelty law had no such restriction.

Beyond that shortcoming, however, the court sees another problem that I think is very telling. It notes that this type of exceptions clause has never been applied to "non-prurient" speech, and that "outside of patently offensive speech that appeals to the prurient interest, the First Amendment does not require speech to have serious value in order for it to fall under the First Amendment umbrella." So we're back to the prurient/non-prurient distinction.

This case, like the FCC nipple case, and the Child Online Protection Act case, is almost certainly destined for the Supreme Court, since a federal statute has been declared invalid. As with previous cases concerning the boundaries of the First Amendment, it's very unlikely the Court will reconsider any of the basic problems with its decisions on obscenity and indecency, but it will surely be an interesting ride.

Three important First Amendment decisions

The Third Circuit Court of Appeals issued three important First Amendment cases this week, at least one of which I will discuss further this week.

ACLU v. Mukasey (PDF): Holding that the Child Online Protection Act facially violates the First and Fifth Amendments. The trial on the constitutionality of COPA in 2006 was a fascinating episode in the annals of First Amendment history- check out Nerve.com's blog of the trial. Mark Regazza Marc Randazza has a (highly opinionated as always) rundown of the decision at the Legal Satyricon.

CBS v. FCC (PDF): Holding that the FCC's abrupt rule change, used to fine CBS for its Super Bowel Bowl "wardrobe malfunction" was arbitrary and capricious because it treated fleeting 'indecent' images in live broadcasts more harshly than fleeting verbal expletives.

U.S. v. Stevens: (PDF): Striking down a federal law criminalizing the sale of depictions of animal cruelty, and voiding the conviction of a distributor of dog-fight videos. The Government unsuccessfully defended this law as closely analogous to laws against child pornography.

Sex is a "major life activity" under the ADA

Joining the Ninth Circuit, the D.C. Circuit today holds that sex is a "major life activity" for purposes of the Americans with Disabilities Act. (Well, technically the Rehabilitation Act, but the two laws overlap almost completely.) The Act defines a "disability" as "a physical or mental impairment which substantially limits one or more . . . major life activities" - a standard plaintiffs must meet to make a disability discrimination claim. The Supreme Court held that reproduction is a major life activity in Bragdon v. Abbott (1998) (which also recognized that asymptomatic HIV may qualify as a "disability").

The D.C. Circuit's decision says:

Based on the statute’s text, the Supreme Court’s reasoning in Bragdon, and a hefty dose of common sense, we hold that engaging in sexual relations qualifies as a major life activity under the Act.

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an “activity” in any sense of that word. As for the word “major,” the Supreme Court has explained that “the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.” Id. (internal quotation marks omitted). At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to “be fruitful and multiply.” Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a “major” life activity.

Yes, that's right, the court just cited the Book of Genesis as an authority on the importance of sex!

The court says that the State Department didn't dispute this point, but the dissent notes the Government's position was narrower than the court's: it argued that sex "can" qualify as a major life activity "to the [extent] that procreation may be limited." So we're back at Genesis: it's only really the fruitful multiplying that matters. Unfortunately, given the court's language, the decision could easily be interpreted as stating that narrow, heterosexist position.

Today's decision, Adams v. Rice (PDF), concerns a woman who suffered from breast cancer and was denied an overseas post with the State Department, even though (allegedly) treatment had rendered her cancer-free. Adams argued that she was disabled in part because her treatment had deleterious effects on her sex life. In an affidavit she said:

Like many breast cancer survivors, whether by virtue of my discomfort with the way my body looks, loss of sensation after my surgeries, my deep-seated fear that prospective suitors will reject me because of my history of cancer, loss of a breast, and current physical appearance, or the side effects of medication that causes loss of libido, I now find that the prospect of dating and developing an intimate relationship is just too painful and frightening. While I have overcome the physical disease, my ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently.

For whatever reason - and to my mind surprisingly, but happily - the State Department did not dispute the allegation that Adams's sex life was substantially limited. So the court was not called upon to determine whether the impact of disablism - which is, it seems to me, among the reasons Adams is saying her sex life has been limiting - can be part of the "substantial limitation" analysis. But as the court pointed out, the jury will ultimately make this fact determination. One imagines that the State Department's cross examination of Ms. Adams could get pretty ugly.

Also of interest, the Government argued that its treatment of Adams on account of her cancer wasn't illegal because, well, how were they supposed to know Adams wasn't getting laid, and therefore was disabled? The court rightly rejected this argument.

The dissent seems to say that Adams has not produced evidence of a disability because a) she has not been clear about when her sex troubles started, and b) her real problem is her man-repelling mastectomy, not the cancer itself.

Off-topic: Boudmediene and the "sliding scale"

Plenty of people (for example, here) have plenty of interesting thoughts about Boumediene v. Bush. There's one aspect of the case, however, that has nagged at me ever since the detainee cases first started wending their way through the courts. And that is the argument over whether due process rights, and the writ of habeas corpus, extend to non-citizens held abroad - or, in the case of Guantanamo, "abroad."

I realize that this argument is based on the "sliding scale of rights" analysis found in Johnson v. Eisentrager, which states; "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society." The argument that constitutional rights stop at our shores is, therefore, not new to the Bush Administration.

It nevertheless strikes me as wrong as a matter of constitutional structure and text. Those who label themselves "federalists" should appreciate that "constitutional rights" are not merely grants of rights to individuals but limitations on the power of government. The Constitution defines the powers that government does and does not have. I see no reason, based on that arrangement and the text that describes it, to construe those powers as shorn of those limitations simply because they are exercised outside the country and against non-citizens. If the government lacks the power to detain people without certain procedural safeguards, it lacks that power. There are pragmatic arguments as to why this should not be the case, but I can't see how those arguments are tied to the Constitution. "No person" in the Fifth Amendment seems plain to me.

I appreciate, however, that there is a possible textual and historical argument with regard to the Suspension Clause. The clause speaks of "the writ of habeas corpus," clearly invoking the common law tradition associated with that writ. To the extent that the writ was, at common law, understood as extending only to the subjects of the Crown and/or to actions taken within the boundaries of the Realm, the Constitution may be read as incorporating similar limitations. But this argument, it appears, applies to the writ but not the Fifth Amendment Due Process Clause.

These are, of course, off-the-cuff comments on a subject I'm not at all versed in -- but then so is most of the discussion about the detainee cases.

Miscellany: News on Abortion Rights, Discrimination, Parenting

Law.com report: "3rd Circuit: Woman Cannot Be Fired for Having Abortion." The plaintiff was an office manager for a company that insured used cars. In the second trimester, she learned of severe deformities in her pregnancy and had an abortion. Her employer claimed her firing was because she mishandled the scheduling and use of leave time for the procedure and after, but plaintiff sought to prove it was really because of the procedure itself. The Sixth Circuit held in 1996 that the Pregnancy Discrimination Act protects employees' right to terminate their pregnancies, and the EEOC endorses this view, but other circuits had not addressed it. The Third Circuit now agrees that the term "related medical conditions" includes abortion. Opinion here (PDF)

The AP reports : "A federal appeals court says Virginia's law banning a type of late-term abortion is still unconstitutional, even though a similar federal ban has been upheld by the U.S. Supreme Court. The 2-1 decision Tuesday by the 4th U.S. Circuit Court of Appeals affirms the same court's 2005 ruling striking down the law. The Supreme Court had ordered the appeals court to take another look at the law after the ruling on the federal ban." Opinion here (PDF).

The Baltimore Sun reports: "Court denies visitation to gay ex-partner; Md. ruling has broad impact for nontraditional families": "In a decision with broad ramifications for nontraditional families, Maryland's highest court ruled Monday in favor of an adoptive mother who is seeking to deny her former partner visitation rights to a child that both had cared for during their relationship." You can read the decision at this link (PDF), and the Sexual Orientation and the Law Blog discusses the decision here.

Also at Law.com: Circuit Courts Address Discrimination Based on Interracial Association - I've discussed this topic recently, and this article gives a cogent discussion, including the parallel to discrimination based on same-sex relationships.

From Feministing (a couple weeks late!): UK won't lower abortion limit from 24 weeks - Conservatives in Parliament had advocated restricting abortions after 20 or 22 weeks instead of the current 24 weeks. Both measures failed, by 332-190 and 304-233 respectively. Hat tip to Reproductive Rights Profs Blog.

Roundup of this week's legal developments

-- The Kansas Supreme Court today set limits on grand jury subpoenas in an investigation of a Kansas abortion provider, but refused to block the subpoenas altogether or strike down the law under which the grand jury convened. The Associated Press reports:

The Supreme Court declined to quash or modify the subpoenas or strike down the law. But it sent the case back to district court and set guidelines for the presiding judge to use to determine whether the subpoenas should be enforced.
“The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition and that the targets were not selected and subpoenas issued out of malice or with intent to harass,” Justice Lee Johnson wrote in the high court’s opinion. “If so, the court should quash the subpoenas.”
The Supreme Court said if the district court determines that both of those conditions are satisfied, it must consider patients’ privacy. It must allow Tiller’s clinic to remove all patient identifying information from the copies it provides to the grand jury, the high court said.
“The district court must consider the competing interests of the state and the patients,” Johnson wrote for the Supreme Court.

Notably, the court said that for all records subpoenaed, an independent attorney and physician must ensure the redaction of all information not relevant to the investigation, regardless of whether the information is considered "patient-identifying" information. Bottom line, though: the case is remanded, the abuse of the state justice system to harass health care providers continues.

-- Workplace Law Profs Blog notes an interesting case in which a University of Toledo employee, charged with overseeing the school's equal employment policies, wrote an editorial in a local paper -- which argued vigorously that gay and lesbian people shouldn't be protected from discrimination. Normally, public employees' off-the-job political speech is protected, but there's a very interesting question here of whether a statement like this so undermines the employer, and the particular employee's job responsibilities, as to cross the line into unprotected speech.

-- A Pennsylvania state appellate court held (pdf; see also report here) - over one judge's dissent - that a city could shut down a restaurant that provided an area for patrons to have sex, because sex is not an "accessory use" permitted by its restaurant permit. The dissenting judge compared patron sexual activity to karaoke, cabaret, and off-track betting: not typical for restaurants, but consistent with the types of entertainment that some restaurants are known to provide. This may seem like a weird case, but this kind of business model sounds like a winner for businesses catering to the swing community.

Fifth Circuit holds sex device law unconstitutional

In a 2-1 decision yesterday, a panel of the Fifth Circuit Court of Appeals held that Texas's criminal ban on the distribution of sexual devices violates the Fourteenth Amendment's guarantee of personal liberty and privacy. The law defined any device "designed or marketed as useful primarily for the stimulation of human genital organs" as "obscene," and made selling, advertising, giving or lending such devices a crime. Persons who owned six or more such items were presumed to be distributors.

As Howard Bashman notes, the Fifth Circuit's decision directly conflicts with a decision by the Eleventh Circuit a year ago that upheld a very similar Alabama law, which the Supreme Court declined to review. The two decisions, of course, turned on the courts' interpretations of Lawrence v. Texas, and there were two main points of disagreements.

First, the Fifth Circuit rejected the Eleventh Circuit's view that these laws are bans on "commercial sex" -- something the Lawrence majority specifically said its reasoning did not apply to. The Fifth Circuit looked to precedents involving pornography and contraception, where the Supreme Court has repeatedly held that bans on commercial transactions can unconstitutionally burden private, non-commercial use of those products, and that merchants of those products have standing to assert the rights of the consumers. Moreover, the Fifth Circuit noted that the Texas statute could apply to noncommercial exchanges, i.e. lending or gifting.

Second, the Fifth Circuit rejected the Eleventh Circuit's view that it had court's must apply either "strict scrutiny if Lawrence established [the sexual conduct at issue] as a fundamental right or rational basis review if Lawrence did not." The Eleventh Circuit held that no fundamental right was at issue and that the law passed rational-basis review. By contrast, the Fifth Circuit noted that the Lawrence decision did not focus on such a distinction, but instead on "the types of governmental interests that are constitutionally insufficient to sustain a law that infringes on" private sexual conduct. Finding the "morality" interests asserted by the State indistinguishable from those assert in Lawrence -- and rejecting as not rationally related concerns about protecting children and unwilling adults from exposure to sexual devices -- the court held the law invalid.

The en banc Fifth Circuit could reverse this ruling on rehearing -- but if it does not, this circuit split would seem to be headed for the Supreme Court. To date, the Court has studiously avoided taking cases raising the scope of Lawrence. This should be exciting.

In the meantime, as one blogger has put it, it's "Dildos 1, Texas 0." To celebrate the decision, one retailer of "all the best in sexual technology" has announced a "Texas Independence Sale" (Need I say this link is NSFW?).

Oregon court: child gets a say in circumcision

The Oregon Supreme Court today blocked a father from having his 12-year-old son circumcised. The case has garnered a fair bit of attention, including amicus briefs from religious and medical organizations. However, the court declined to weigh in on the pros and cons of the procedure; instead, it remanded to the trial court to determine how the child felt about being circumcised, and how that should bear on the custody arrangement.

Although the parties and amici have presented extensive material regarding circumcision, we do not need to decide in this case which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs -- medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M.

However, in this case, mother has averred in her affidavit that M objects to the circumcision. In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or at 400 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here.

The court's narrowly reasoned decision is hardly a clear victory for either proponents or opponents of male circumcision, or for that matter of children's autonomy in medical decisionmaking. It would be easy enough, for example, to distinguish this case from that of two parents disputing whether to surgically "correct" an intersexed infant, given the supreme court's emphasis here on the child's near-pubescent age. Still, given the high profile of this case, other litigation on this and related issues is bound to follow, and to be very interesting indeed.

In vaguely related news (via Reproductive Rights Profs Blog), Rwanda has launched a campaign to promote circumcision for men as an HIV-prevention measure. There is, of course, recent evidence that circumcision has a protective effect. I have the impression that HIV/AIDS activists are ambivalent about this strategy; after all, circumcision alone may have some protective effect, but doesn't compare to condoms. And of course, anti-circumcision advocates are plenty ticked.

For those wondering about that catchall character question...

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