Legislative roundup

Obviously, the big legislative news this month comes from Vermont, which became the first state to legalize same-sex marriages without a court order - and over a gubernatorial veto, no less. Much virtual and literal ink has been spilled on this, so I will only comment on the transparent foolishness of Gov. Douglas's justification for his veto. Rather than defend his veto on its merit, Douglas said the legislature shouldn't be spending time on this issue while there are pressing economic and budget matters. They may be logical criticism of the legislature's action, but it is completely illogical as a justification for a veto, which comes only after the legislative effort has been spent, and serves only to set the stage for the legislature to spent more time on an override.

There's lots more to tell. There were big headlines the same week from DC, where the District Council unanimously voted to recognize out-of-district same-sex marraiges, as marriages. When finalized, the measure will of course be subject to an override by Congress, and we will have to wait and see if the Dems can block any such move.

In Nevada, the governor is threatening to veto an impending domestic partnership bill. And in Washington, the legislature has passed an expansion of the existing DP law.

NY Gov. David Paterson has said he will soon introduce marriage equality legislation there. Not clear yet if it can pass the state Senate, which now has a slight Democratic majority. Reproductive rights advocates in New York are also gearing up for the anticipated reintroduction of a Reproductive Health Act, which would codify the right to contraception and abortion New York law, and remove abortion from the state penal code.

On a second vote, the New Hampshire House passed a gender identity antidiscrimination measure last week, by one vote: 188-187. Thus, it appears that the deciding factor in the previous 149-181 "nay" vote was in fact lawmaker turnout, rather than the success of opponents' deceptive messages on bathroom use. That's encouraging.

Earlier this month, North Dakota's Senate rejected by a 2:1 margin a bill that would have purtported to bestow "personhood" on zygotes and embryos. This is yet another defeat for the putative "personhood" movement, but I suspect their aim is less to actually pass legislation than to use these attention-getting bills as opportunities to promote their dressed-up message of full criminalization. Anway, anti-choice groups did get two wins in the state Senate, passing bills that (like one recently passed in Kansas) would require medical facilities to offer ultrasounds before abortions, and (like one upheld by a federal court last year in South Dakota) require doctors to tell patients that abortion terminates a "human life."

In the U.S., private or public insurance coverage for surgery related to gender transition is very seldom available. In Canada and Europe, it's a different story. But in tough economic times, this coverage is, depressingly but unsurprisingly, first on the chopping block. The province of Alberta has now eliminated its public coverage for transition-related surgery. As noted over at Bilerico, this may not be the last word here, since a human rights tribunal in Ontario last year ordered the reinstatement of such coverage there. Blue Cross/Blue Shield of Michigan has also eliminated coverage, citing the need to cut costs. As also pointed out at Bilerico, this may not actually make financial sense in the long-term, since cutting off access to surgery can have its own health care costs down the line.

The bathroom canard lives on

The incessant refrain of those who insist that anti-transgender discrimination should remain legal is "bathrooms, bathrooms, bathrooms." Prohibiting discrimination in jobs, housing and public accommodations is, to hear them tell it, an assault on the privacy and safety of women in children in loos everywhere. Perhaps the most remarkable thing about this parade-of-horribles argument is that it keeps popping up, and seemingly keeps working, despite the fact that more than a dozen states and a hundred localities have proven it false.

The bathroom canard was the main argument of the campaign to repeal my Maryland county's antidiscrimination law last year, before the state's high court ruled that the issue did not belong on the ballot. A similar campaign, based essentially on a "bathrooms" message, did go to the ballot in Gainesville, FL last month, and lost 58%-42%.

But while Gainesville voters rejected this tactic, legislators in New Hampshire apparently bought it, voting 181-149 in the state House to kill an antidiscrimination bill. This was the very same week that the House there passed a marriage equality bill 186-179. (Comparing those numbers shows that the margin by which the antidiscrimination bill failed was smaller than the number of lawmakers who cast a vote on marriage but didn't cast a vote at all on antidiscrimination! That certainly tells you something .) Following this success for proponents of discrimination, the same tactic is now being pushed heavily in Connecticut and Massachusetts.

Of course, this is part of a bigger picture of opponents of LGBT equality seeking to frame equal protection of the law as somehow being a threat to individual rights; the frequent arguments that marriage equality threatens the religious liberty of churches that reject same-sex love are just as dishonest. But they're also easier to know how to respond to - as, for example, the Iowa Supreme Court so eloquently did in the closing paragraphs of its recent marriage decision.

But I think it's harder to know what to say to an uninformed audience in response to the bathroom canard, because from the point of view of people who don't understand or accept trans identities, nondiscrimination ordinances would permit "men" to use the ladies' room and vice versa. Moreover, definitional questions about who "belongs" and who doesn't really seem to bother people. Montgomery County legislators tried to dampen these objections by specifying that the law would not apply to places that were "distinctly private and personal," opponents said this was too vague and implied that nothing short of providing carte blanche for discrimination in restroom use would be satisfactory.

Here are some talking points on the issue of from Transgender Law and Policy Institute, similar ones from the Sylvia Rivera Law Project that address these questions. They rightly focus, I think, on a handful of points:

• All transgender people have to use the bathroom somewhere.
• Using bathrooms consistent with their birth-assigned gender just does not make sense for trans people: it would often be more upsetting for everyone involved, and would put the trans person at risk of harassment or violence.
  
• People who enter a bathroom with the intent to assault others, or who stalk or harass others in bathrooms, are and will remain punishable, regardless of gender.
• Trans and non-trans people are not going to be watching each other potty: bathroom stalls have locking doors for a reason.
  
• There is no evidence of threats to safety in privacy in the many jurisdictions that have adopted these laws.
  

One wonders how this is going to play out in Congress when a trans-inclusive ENDA is finally introduced. The Alliance Defense Fund's token witness at the historic first House hearing on anti-trans discrimination last year pushed the bathroom line, but I hold out at least some hope that moderate members of Congress can be convinced not to take these objections seriously.

NH Legalizing Same-Condiment Marriage

Or so state Rep. John Cebrowski has it:

"Creamy peanut butter and crunchy peanut butter can't be a peanut butter and jelly," said Rep. John Cebrowski, R-Bedford.

I think that means he opposed the bill. Nevertheless, the state House voted 186-179 yesterday to permit creamy and crunchy peanut butters to marry one another. Vermont is also close to legalizing these sticky, chewy unions, though Republican Governor Jim Douglas says he'll veto the legislation, apparently out of concern for the risk of salmonella.

Roundup

This week in Washington:
- Obama reverses Bush's ban on federal funding for embryonic stem cell research
- A provision of the just-passed budget bill will help make contraception more affordable for many
- Today the White House launches a Women & Girls' Council, which hopefully will be more than symbolic

In Saudi Arabia, a 75-year-old widow has been sentenced to four months in prison, forty lashes, and deportation for having two unrelated men in her home. The two men -- one of whom is her deceased husband's nephew, and both of whom have also been sentenced -- were apparently bringing her some bread. Her lawyer plans to appeal. More at Religion Clause.

On a much less weighty note, a law professor at the University of Montana complains that the student newspaper's sex advice column "affects my reputation as a member of the faculty" -- no, really --and has suggested the state legislature should tighten restrictions on student publishing. According to the paper in question, the prof complained that legislators should set "criteria for giving someone a job as a columnist writing in an area of 'alleged expertise' or for reviewing objectionable material." Being a law prof, she's come up with proposed restrictions that just pass the First Amendment red-face test, but something tells me this isn't going anywhere. Are authors in student papers really expected to be experts? And what standards should the legislature set to qualify as a sex columnist?

Finally, Cook County, Ill. Sheriff Tom Dart is suing Craigslist, claiming its "erotic services" ads are a public nuisance. Sex worker rights advocates have, naturally, criticized the suit, which probably amounts to little more than a publicity stunt. Craigslist says it's "mystified" by the suit, pointing to its cooperation with law enforcement in Illinois and elsewhere to minimize use of the site to violate the law. One Internet law expert has opined that the lawsuit can't stand, because under federal law Craigslist can't be held liable for users who seek to violate the law unless it actively helps them do so. (Said lawyer also wonders whether there are actually many "erotic services" posts on Craigslist that are only advertising legal services, but a quick search of the many postings specifying "no sex" suggests that yes, there are; most of them are for pro-Dommes.)

Roundup

Via Bilerico, Argentina is ending its ban on gay and lesbian folks serving openly in the military. If they can do it, we can do it.

A new study shows "red" states lead in online porn subscriptions. This strikes me as raising interesting questions about "local community standards" in obscenity cases. (Indeed, I recall that at least one defendant has recently tried to use data on risque Google searches to establish the relevant standard.)

Gay & Lesbian Advocates and Defenders (GLAD) has filed a challenge to the federal Defense of Marriage Act on behalf of married Massachusetts couples seeking marriage-related federal benefits. This seems to mark a shift in strategy from the LGBT legal movement, which heretofore has tried to keep suits regarding marriage and DOMA out of the federal courts for fear of a) setting bad precedent without first building a firmer foundation in state courts and in non-marriage cases, and b) reviving the proposed Federal Marriage Amendment. I'd guess that (b) is now seen as much less of a concern, and (a) is seen as a manageable concern if cases are brought and framed selectively. Here, no state would be forced to accept the plaintiffs' marriage; rather, they are seeking federal recognition of a state-recognized marriage for the purpose of specific tax, Social Security and other benefits. Balkinization has a preliminary assessment of the case.

Finally, Senate Republicans are apparently trying to use the current Omnibus Appropriations bill to eliminate federal Title X funds for Planned Parenthood clinics across the country. An amendment will be introduced today, so folks should call their Senators forthwith.

OT: U.S. to chill out on med marijuana, needles

The SF Chronicle is reporting:

U.S. Attorney General Eric Holder is sending strong signals that President Obama - who as a candidate said states should be allowed to make their own rules on medical marijuana - will end raids on pot dispensaries in California.

Asked at a Washington news conference Wednesday about Drug Enforcement Administration raids in California since Obama took office last month, Holder said the administration has changed its policy.

"What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing here in law enforcement," he said. "What he said during the campaign is now American policy."

Bill Piper, national affairs director of the Drug Policy Alliance, a marijuana advocacy group, said the statement is encouraging.

"I think it definitely signals that Obama is moving in a new direction, that it means what he said on the campaign trail that marijuana should be treated as a health issue rather than a criminal justice issue," he said.

Piper said Obama has also indicated he will drop the federal government's long-standing opposition to health officials' needle-exchange programs for drug users.

Referring to states' medical marijuana laws, a White House spokesman said Obama "believes that federal resources should not be used to circumvent state laws."

Hopefully Obama's administration will conclude the same about using federal resources to, say, prosecute adult filmmakers.

Protecting our children

Via Feministe: despite promises from Democrats, the proposed Omnibus Appropriations Act retains most funding for ineffective abstinence-only education. Click here to tell Congress to stop funding this nonsense.

Meanwhile: Waking Vixen asks why, when minors involved in prostitution are apparently being treated more leniently than adults, minors who produce their own amateur pornography are treated more hashly than adults. It seems the same concerns would apply to both situations involving possible coercion, later effects of the fact of involvement on the minor's life, and the possibility of feeding a market that promotes abuse of minors generally are applicable in both contexts.

WV's post is prompted bythe FBI's recent arrests in various cities of a large number of adult sex workers and their clients, which is being touted by the FBI as part of a campaign against child prostitution.

Deputy AG nominees attacked for defense of porn

I've previously blogged about the uncertain future of federal obscenity prosecutions, which increased sharply under the Bush Administration. Although based on general ideological leanings we would expect a decline in such activity in favor of fighting real crime, I also noted that both Attorney General Eric Holder and Solicitor General nominee Elena Kagan have in the past advocated for more vigorous enforcement of laws against pornography.

Now, conservative groups are attacking Deputy AG nominee David Ogden for his past work defending adult publishers and filmmakers, as well as defending reproductive rights. Both are causes Ogden has been heavily involved in over the years in a number of high-profile cases, and cultural conservatives are hopping mad that this ally of what they call "Big Porno" (no, really) will be second in command of the Justice Department. AVN has a good summary of Ogden's controversial civil-liberties resume. (As always with AVN, beware of NSFW ads.)

Time for a new approach to human trafficking

Melissa Ditmore and Andrea Ritchie of the Urban Justice Center's Sex Workers Project have a great new post up at RH Reality Check. The post is based on the Project's new report: "Kicking Down the Door: The Use of Raids to Fight To Fight Trafficking in Persons":

We found that while there have been some successes, raids are generally an ineffective anti-trafficking tool, and in many cases are harmful to people who have been trafficked. Trafficked women reported that they were repeatedly arrested, in some cases up to ten times, in police raids on brothels and other sex work venues, without ever being identified as trafficked. ...

The Obama administration has the opportunity to reassess this failed federal approach to human trafficking. The recent passage of federal anti-trafficking legislation championed by Vice President Joe Biden offers a fresh start - and a chance to avoid repeating the mistakes of the past.

A good first step would be to move away from high-profile, resource-intensive and largely ineffective raids and to address the economic and social circumstances that increase vulnerability to trafficking....Expansion and targeted enforcement of labor laws in [sectors where trafficking flourishes] would not only go a long way toward locating, identifying and assisting trafficked persons, it would also protect the rights of all workers.

For the long term, strategies led by individuals and communities with knowledge of and access to trafficked people are far more likely than raids to meet with success....

Trafficking victims by definition have sought opportunity in the United States only to find themselves in coercive and abusive situations. We owe it to them to find better ways to locate, identify and assist them, and to develop anti-trafficking initiatives that prioritize their needs, choices, and self-determination as human beings. A good way to start would be to extend a helping hand that is not also holding a gun.

As I've noted in this blog before, the Sex Workers Project is doing some truly outstanding advocacy.

Another step the Obama administration could take would be to re-examine the equation of prostitution with trafficking under various provisions of federal law, including in restrictions on international aid. Some of these policies make providing life-saving services to sex workers more difficult, and distract from the serious problem of human trafficking.

Miscellaneous updates: civil rights at home and abroad

Maybe you've heard about the Maryland State Police spying scandal. Basically, in 2005-06 the state police were spying on a number of peace, anti-death penalty and other progressive grassroots groups in the state, on the pretense that they were a security threat. Turns out that among those groups was Equality Maryland - yes, a bunch of LGBT lobbyists in suits were deemed a security threat.

And speaking of witchhunty goings-on, remember U.S. Attorney Leslie Hagen, who was fired from the Bush Justice Department for being a lesbian? Well, the DOJ has finally filled her position by hiring -- Leslie Hagen. How's that for change?

Colombia's highest court has held that the South American nation must provide government benefits to same-sex couples on the same footing as heterosexual married couples. No translation of the opinion is as yet available, but hunter of justice excerpts a statement on the ruling from Colombia's leading LGBT rights group. Leonard Link - which always has excellent coverage of LGBT and HIV issues in immigration and asylum law - has a thoughtful discussion of the ramifications of this decision for asylum seekers. The issue is an interesting one because, like South Africa, Colombia has seen robust recognition of constitutional rights for sexual and gender minorities, and at the same time continues to see persistent, widespread homophobic violence. Meanwhile, Constitutional Law Prof blog notes that this is not the trailblazing decision from this court on matters of gender and sexuality; in the 1990s the court rendered a series of decisions placing limits on genital reconstruction surgeries for children born with ambiguous genitalia.
[Yes, Colombia was initially misspelled as "Columbia." You would, of course, expect this sort of thing from Columbia.]

Meanwhile, Bolivian voters have endorsed a new constitution. The new document is most notable for seeking to give more rights to indigenous people, and for allowing President Evo Morales to run for another term. But it's also notable that unlike the former constitution, the new one does not contain bans on abortion or same-sex marriage - absences which angered some Catholics. Indeed, the new constitution apparently bans discrimination on the basis of sexual orientation, which some think could lead to rulings in favor of marriage equality. This looks like another case of LGB civil rights benefiting from broader political changes led by a coalition that happens to favor equality, even though there is far from a broad national consensus on equality issues.

Icelanders get cold comfort in a world first

Well at least something good has come of the economic meltdown and consequent political shake-up in Iceland: the world's first (out) lesbian head of state. Johanna Sigurdardottir will be the nation's interim prime minister, following this week's collapse of the government there (though her term will likely be shortlived). For the sake of her country's troubled economy as much as for the milestone she sets, we should all wish her the best of luck.

Me on the SG nomination, the courts, and health care

Though not directly related to the usual topics of this blog, I can't resist announcing two things I've coauthored, both appearing today:

• A commentary for the National Law Journal: The Solicitor General's Office: Course Correction Needed
  
• An Issue Brief for the American Constitution Society: The Supreme Court’s Two-Front War on the Safety Net: A Cautionary Tale for Health Care Reformers

Since both of these were written on the clock, it's probably worth reiterating here that this blog does not express the views of any organization.

Blog for Choice: Repeal the Hyde Amendment

For Blog for Choice Day, bloggers have been asked: What is your top pro-choice hope for President Obama and/or the new Congress? Mine is Medicaid coverage for abortion services.

Cost remains one of the biggest barriers to accessing abortion. Abortion is expensive - on top of the time one needs to take off from work, and the added time and expense caused by state restrictions such as waiting periods and the sparsity of providers in many parts of the country. Even when women can scrape the money together, doing so requires precious time. Such waits can make it harder to find a willing and competent provider, and can also increase the cost further.

Coverage of abortion services is generally excluded by Medicaid under what's known as the Hyde Amendment. Twenty-eight years ago, the Supreme Court upheld that general exclusion, saying in part:

The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. ...

Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.

Harris v. McRae (1980). There are several possible objections to this ruling. One is that the above reflects an impoverished conception of the right to bodily self-determination. Another, perhaps stronger under current juriprudence, is that singling out abortion services, when health care services for men are generally covered, is a form of invidious discrimination against women.

Constitutional doctrine aside, both points are highly relevant to President Obama's promise of guaranteeing health care for all. "Health care for all" has to mean more than access to an insurance plan. It has to mean access to comprehensive health care, without arbitrary and discriminatory exclusions such as the Hyde Amendment. Or, for that matter, exclusions of life-saving preventive care, or of contraceptives, or services related to gender transition. Opposing these exclusions is not only just, it is sound public health policy.

I know that repealing the Hyde Amendment is not a top priority for Obama or for Democrats in Congress, as it is more controversial than some other pro-choice measures. But so long as individuals lack health insurance coverage for abortion, the promise of "health care for all" will not be fully realized.

The obligatory Inauguration post

Yes, I was there on the Mall - if the foot of the Washington Monument counts as the Mall. It was amazing.

There was plenty of booing when former(!) President Bush entered, and some more when Rick Warren was introduced. Other folks turned their backs in protest of Warren's noxious views on LGBT equality. But at such a moment, sharing a long, loving kiss with your significant other is the best protest of all.

Also, Bishop Gene Robinson appeared on NPR's Talk of the Nation on Monday to discuss his role in the inaugural concert, the frustrating "technical error" that kept his invocation from being broadcast, and other matters besides. It's an interesting interview.

Arthur Leonard says LGBT activists should not feel turned off by that flub or by the President(!)'s failure to mention LGBT folks in his inaugural address. I'm inclined to agree with him that " there is too much feverish interpretation going on here." The proof, of course, will be in the pudding.

By pudding I mean executive rule changes and legislative initiatives. Hopefully also among that pudding will be a quick move to repeal the "global gag rule" that bars international family planning groups from even discussing abortion.

Some gender and sexuality firsts

Last week Jared Polis was sworn is as the third out member of Congress, and the first to come out before being elected to his first term (unlike Reps. Tammy Baldwin and Barney Frank, who came out as incumbents). He will sit on the House Education and Labor committee.

Since the House also swore in its first female speaker for her second term, it's nice to see that they're finally made their own written rules gender-neutral. On a more substantive note, they quickly got down to business and passed the Lily Ledbetter Fair Pay Act, which now goes to the Senate.

Across the pond, South Africa's president has appointed Justice Edwin Cameron to that country's Constitutional Court, making him the first openly gay jurist on any nation's highest court. (The U.S. might see its own first out Supreme Court Justice if Obama were to appoint Stanford law professor and perennial shortlister Kathleen Sullivan.)

[This post was supposed to happen before now, but Blogger and I did not see eye to eye about it.]

Hey, that was a FEMINIST fist jab!

This is a little too cute for words:

Elena Kagan, Obama's SG, on pornography

Earlier this week President-Elect Obama announced he would nominate Harvard Law School Dean Elena Kagan to be Solicitor General. There is much to like about the choice. Kagan is an accomplished scholar and much-lauded dean who has often been discussed as a potential Supreme Court nominee. She is also a liberal, a feminist and a former clerk for Justice Thurgood Marshall, and would be the first female appointed to the position often referred to as "the tenth Justice" and "America's lawyer." (For non-lawyers, the SG supervises government involvement in appellate litigation and represents the government in the Supreme Court.)

(Disclaimer: Let me make very, very clear that the criticisms expressed in this post do not in any way reflect the view of any organization with which I am or have been affiliated.)

I think Kagan will make a fine SG, and deserves confirmation. Given the focus of this blog, however, I want to highlight published views of Kagan's with which I disagree, and which could impact her work as Solicitor General. Those views are contained in a now somewhat dated article (Kagan hasn't written much since becoming dean of HLS): Regulation of Hate Speech and Pornography After R.A.V, 60 University of Chicago Law Review 873 (1993). In it, Kagan advocates policies that could have could seriously limit and discourage sexual speech.

Kagan begins her article thusly:

This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.

Thus, Kagan equates pornography with hate speech, characterizing it as fundamentally harmful and undesirable speech.

She then suggests, in light of the Supreme Court's then-recent ruling in R.A.V. v City of St. Paul (striking down a ban on racially motivated cross-burning because it was "viewpoint-based"), what approaches to regulating pornography and hate speech are and are not likely to be successful, i.e. held constitutional. Her points about pornography are more or less as follows:

1. Regulations based on whether material endorses, approves, or actually causes harm to women will be struck down.
2. Communities should act to prosecute attempts to force people into pornography and "the sexual assaults and other violent acts so frequently committed against women in the making of pornography."
3. Using pimping/pandering/prostitution laws against pornographers, however, may be unconstitutional.
4. Regulating material on the basis that it depicts "sexual violence" has promise. However, a focus on "sexual violence" is subject to dispute as being viewpoint discrimination in disguise, since "violence" may be interpreted to mean simply that the material is "demeaning" to women.
5. If we can ban distribution of material depicting child abuse, perhaps we can also ban distribution of adult pornography the production of which involves unlawful conduct.
6. Feminists should embrace the doctrine of obscenity, despite its vagueness and its link to "traditional" notions of sexual morality, as a means of prosecuting pornographers.
7. Feminists should press courts to recognize a new First Amendment exception for pornography that would permit viewpoint-based regulations.

Kagan's legal analysis in this article is smart, nuanced, and overall has to be admired. But some of her proposals (4, 6, 7) are troubling, as they are clearly targeted at imposing broad bans on the general category of sexually explicit speech (though Kagan suggests the narrower, and probably unworkable, category of "materials that operate primarily ...as masturbatory devices"). Indeed, at several points (2, 5) Kagan makes clear that targeting actual crimes against women and the depiction of such crimes does not, in her view, go far enough. At the same time, the article takes for granted, as much anti-pornography literature does, that the adult entertainment industry is rife with coercion and violence (which, if it were true, would mean that local, state and federal law enforcement are essentially ignoring large-scale, organized violent crime). It's also notable that she rejects other approaches (1, 3) only with reluctance.

These are not views I would like to see espoused by America's lawyer. In particular her enthusiasm for the outmoded, unworkable and puritanical obscenity doctrine is troubling. But, even assuming Kagan's views have not changed since 1993, I doubt she will have opportunities to have much influence on these issues in her term as SG. At any event, I think Kagan will make an excellent SG despite my disagreement with her views on these issues.

EDIT: As I've previously noted here, AG nominee Eric Holder has also been a past advocate for obscenity enforcement. Hard to say, though, what these two nominations for top DOJ slots portend for the new administration's legal and law enforcement priorities in relation to obscenity.

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.

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

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

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

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

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

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

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

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

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

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

In Minnesota, toilet toe-tapping trashed

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