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.

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.

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.

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.

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.

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.