And you thought your school dress code was silly

In an interesting twist to the larger European debate over religious clothing and symbols in schools, a British teenager (with the somewhat amusing name of Lydia Playfoot) is taking on her former secondary school for prohibiting her from wearing a silver "chastity ring" at school. The young woman argues that the ring -- inscribed with "1 Thess. 4:3-4" and produced by a once-federally-funded American organization -- is an important expression of her religious commitment to "sexual purity" before marriage. The school, for its part, contends that there is no religious discrimination here, only an even-handed application of their school uniform policy.

The school's policy apparently provides an across-the-board exemption for religious garb and accessories if they are a "religious requirement." Apparently the niqab falls within this exception, but not the "chastity ring," because, as the principal put it:

The ring "is not a Christian symbol, and is not required to be worn by any branch within Christianity."

Ms. Playfoot's rebuttal is essentially, Who is the school principal to decide what is a Christian symbol and what is required to be worn? Or in her lawyer's words, "Secular authorities and institutions cannot be arbiters of religious faith."

He was, of course, very nearly quoting from a decision of the U.S. Supreme Court, and it would stand to reason that the law under Article 9 of the European Convention would be similar, but I leave it to you, gentle reader to figure that out. (Assuming the girl has standing, of course, even though she has since left the school; I can't even guess at how the Brits handle this.)

The school's other contention seems to be that the ring doesn't represent a sincere religious commitment but a mere "fad" (and not even a British one!). Here again, the school should lose: neither the school nor the court is in a position to second-guess individual religious sincerity so long as it is not a transparent hoax. This should be obvious, no?

I wonder what Tony Blair -- who controversially criticized the public wearing of the niqab as a "mark of separation" and expressed approval for the school that disciplined a teacher for wearing it -- would make of this school, which permits the niqab as a "religious requirement" but prohibits the more idiosyncratic but much less obtrusive silver ring? (Interestingly, in public statements Ms. Playfoot, her father and her lawyer can't seem to decide if they're being discriminated against along with, or in contrast to, their Muslim fellows.)

In any event, this transparently ridiculous school rule might hopefully provide some perspective on overzealous calls for suppression of individual religious expression in schools. That little engraved ring isn't even likely to have any effect on the wearer's sexual behavior, let alone the school environment.

The Domestic Violence No-Girlfriend Order

A Canadian court has ordered a man who repeatedly assaulted a former girlfriend that he "cannot form a romantic relationship of an intimate nature with a female person" for the next three years."

Wow.

Just wow.

OK to exclude heterosexuals?

A gay pub in Australia made headlines recently when it applied for an exemption from a state antidiscrimination law for its policy of selectively excluding heterosexuals -- and was vindicated by the Victoria Civil and Administrative Tribunal.

The pub's action was not based on anti-heterosexual animus, but on the owner's concern that an excess of straight clientele were making impossible the safe and comfortable atmosphere for gay patrons that was the pub's raison d'etre. The tribunal found that this policy was consistent with the state's aspiration to protect the dignity of its citizens. It reasoned that while heterosexuals had access to a great many venues where they could socialize, dance, romance, et cetera, the same was not true of gay men; and further, that the large number and at times disrespectful behavior of heterosexual patrons at one of a precious few gay venues the region might effectively deprives gay patrons of the same opportunities heterosexuals enjoy. In its own words:

The proposal will, in my view, benefit men, particularly gay men, by providing them an opportunity to dance and socialise in an environment which will be free from violence, and where they can, uninhibitedly express their sexuality without being treated with hostility or being singled out in any way.

As an additional reason, the tribunal reasoned that the policy might further public health, since

Gay men in a male-only environment, will be more ope[n] about their sexuality and in this setting it is far easier for Aids Council workers to discuss with them matters such as safe sex and protection against HIV Aids.

This decision, and the head-scratching and offense it is likely to cause in the United States, reflect a basic disagreement about the meaning of equality before the law -- namely, whether "substantive" or "formal" equality should be central. In the U.S., formal equality is the polestar -- the law protects suspect classifications, not minority groups per se -- which explains our uneasiness about affirmative action. In Europe, Canada, and Australia, substantive equality is the dominant paradigm, and greater asymmetry between the treatment of majority and minority groups is tolerated so long as it is in the ultimate service of social justice.

To date, the substantive-formal equality debate has been almost exclusively concerned with matters relating to gender, race, ethnicity, and to a limited extent disability. Outside of private associations unreachable by antidiscrimination law -- but occasionally debated within queer communities -- questions of preferring queers or excluding heterosexuals have never really come up, certainly not as legal matters. This has not, of course, stopped LGBT-rights opponents from using deceptive appeals to formal equality via the slogan of "no special rights." Indeed, LGBT advocates have had to expend plenty of energy explaining that LGBT-inclusive antidicrimination laws do strictly conform to the formal-equality principle.

All of which leads me to two conclusions: First, whatever the merits of the Victoria tribunal's conclusion, its approach will never be adopted within the United States. Second, this will not stop American opponents of LGBT civil rights from seizing on the Victoria decision as indicative of the kind of unfair favorable treatment LGBT people seek from the law.

On a more personal note....

It seems worth mentioning that two weeks back I graduated from Case Western, receiving my degrees in law (cum laude) and social work (they don't do that Latin stuff). Between that, and starting to study full-time for the Bar, I haven't been blogging. As indicated by today's earlier post, however, I have every intention of getting back in the swing of things, and have an idea or three percolating.

The obscenity crusade continues

Ever since taking office, Attorney General Gonzales has been on a new crusade against obscenity, naming is a "top priority" for federal law enforcement. To illustrate that Gonzales meant business, check out the press releases page of Justice's Child Exploitation and Obscenity section, and note the impressive number of press releases bragging about obscenity prosecutions. The most visible has been the prosecution of Extreme Associates, which produced a short-lived district court ruling that the federal obscenity laws violate the right to privacy. The unusual prosecution of a Pennsylvania woman for online stories -- pure text -- about child sexual abuse has also grabbed headlines.

Justice's latest target is Max Hardcore, whose name is widely known and often reviled within the porn industry. According to the Justice Department, his films feature "severe violence" against women. To be sure, as in the Extreme case, this guy's films are utterly tasteless and gratuitously mean. Moreover, Max Hardcore has repeatedly been accused of mistreating his talent, in terms ranging from just being an asshole boss to downright criminal behavior. As with Extreme, Justice is very smart, from a public-relations perspective, to pick on such an unsympathetic yet successful pornographer, and to emphasize the "violent" content of his work.

But this indictment is not for coercing women into sex on film, or for any kind of exploitation of anyone. It's for obscenity, i.e. putting someone in jail for years for making dirty pictures. Justice doesn't seek to prove that the "violence" in these films is anything other than pretend, albeit disturbing. If Max Hardcore were indicted for actually harming someone, a good number of porn industry folks would cheer. Instead, this prosecution is likely to make him something of a martyr within the business. And who, other than fans of low-quality smut, wants that?

Protecting porn-stars-for-a-day

Garance Franke-Ruta, in a Wall Street Journal op-ed, recently made the intriguing proposal that the age of consent for appearing in pornography be raised from 18 to 21. She is rightfully concerned with the powerr of dirty pictures to "transform the playful exhibitionism of young women into scarlet letters that follow them around for life." She is particularly concerned about the recent "porn-star-for-a-day" phenomenon exemplified by the Girls Gone Wild franchise, and the exploitative behavior of the entrepreneurs behind it.

Franke-Ruta points out that, after all, the drinking age in every state is 21, and a few moments of recorded debauchery are a lot likelier to perniciously follow one around in later years than a few beers. But the practical implications of such a regulation are different. Today, the age of consent for pornograhy follows constitutional law: pornographic images of minors are not protected by the First Amendment, whether obscene or not, whereas images of persons 18 and up are protected so long as they are not obscene. The private possession of even obscene adult porn is protected; the same is not true of pornography featuring minors. Does Franke-Ruta propose to criminalize the creation of erotic films featuring18-20 year-old? Its sale? Possession? Would the effect be retroactive, thus rendering millions of videos and magazines in millions of home illegal overnight? How could the age of consent be raised consistent with the First Amendment?

But setting aside constitutional law, is this a good idea as a matter of policy? I start from the premise that the sex industry is an industry, those working in it are workers (in the case of Girls Gone Wild, independent contractors), and it should be regulated like other industries -- which is not to say there aren't reasons to treat it specially. But the worst actions of pornographers mentioned by Franke-Ruta are violations of existing law, and should be punished accordingly; business regulations, on the other hand, should assume generally law-abiding businesses. Franke-Ruta rightly points out that changes to the process of obtaining written consent are simply not good enough in light of allegations of the use of alcohol and peer pressure to obtain consent. But there are better ways to protect individual participants from coercion than forbidding them to do so (and 21-year-olds may be vulnerable to coercion as well). I would propose that participants be granted a mechanism through which to revoke their consent within a specified, brief period of time and demand the forfeiture or destruction of all copies of the offending images in return for a return of all compensation paid. Obviously this could present some unintended difficulties if applied to professional performers in the traditional adult film industry -- but I suspect it is still a much better, and less paternalistic, solution to the problem of on-the-spot coercion.

Gonzales v. Carhart and informed consent

I'm currently revising for publication an article (originally written last fall) on the constitutionality of abortion-specific informed consent laws -- a topic on which precious little clear-cut analysis has appeared in case law or commentary. Naturally, the challenge now is to figure out how Gonzales v. Carhart, and its strange language about informed consent -- strange because of the argument that banning a procedure somehow better informed women's choices.

Jack Balkin has suggested, quite rightly I think, that this language may spur state legislatures to be even bolder in passing requirements that ever-more specific -- and inevitably, more controversial -- statements be given to women seeking abortion about fetal development, supposed risks of abortion, et cetera. Be that as it may, it remains to be seen whether this new wave of requirements -- a wave that was already underway before the Supreme Court decision -- can themelves withstand constitutional scrutiny. Does Gonzales v. Carhart say anything new about the validity of informed consent statutes?

The argument I'm leaning towards, is, No, not really, and for a few reasons.

First, the state interests emphasized in Carhart II are the same ones identified in Planned Parenthood v. Casey: showing "respect for life," and ensuring that women's choices are fully informed, lest they regret them. Moreover, Casey had already established the informed-consent rubric could include not only information pertaining to the patient's health, but also to the fetus. Carhart II simply rephrased these principles, and implicitly accepted along with them that these interests are served only where the information is "truthful and not misleading."

Second, Carthart II did not strike a strong blow for the principle of deference to legislative factfinding. Rather, the Court seems to have bunted on this issue, as once stating that it used a "deferential standard" but that it would not give "uncritical deference" (thus muddling further its already muddled case law on this question). In fact, the Court pointed out that some of Congress's findings were wrong, and rested its conclusion on Congress's prerogative to assess the "balance of risks" in marginal cases, a classic policy judgment. This surprised me quite a bit, as I had guessed the Court would treat the deference issue, emphasized in Kennedy's Stenberg dissent, as decisive.

Now, don't get me wrong: what Kennedy actually does with these seemingly sensible puzzle pieces is incoherent and almost absurd, and promotes a deeply sexist conception of women's need to be protected from themselves in the bargain. And his reliance on an amicus brief touting the discredited "post-abortion syndrome" may be a sign that, under whatever doctrinal cloak, Kennedy may be all too sympathetic to antiabortion factual claims even if they are demonstrably bogus.

But whatever ill Carhart II may auger in other areas, the opinion, taken at its word, does not leave legislatures any freer than they were to force clinics to promulgate medical information that is dubious, outdated, or misleading. To go out on a limb just a bit, if the lower courts do engage in robust factual scrutiny of these requirements, stubborn legislators (or state health departments) could end up playing ping-pong with them, struggling to craft the most inflammatory assertions they can get away with in the face of unfavorable rulings.

Quick numbers on relationship recognition and discrimination laws

I promise I'll write some things that don't relate directly to LGBT rights soon; I have some ideas, but this whole finishing law school thing has been a bit of a distraction. For now, some interesting figures in light of recent legislation in Iowa, Washington, Oregon and New Hampshire:

States with full marriage recognition: 1
States with civil union or equivalent recognition: 6 (now incl. NH, OR)
States with modest partnership recognition: 3 + DC (now incl. WA)

States with sexual orientation-inclusive discrimination law: 20 +DC (now incl. IA, CO, OR)
States with gender identity-inclusive discrimination law: 12 +DC (now incl. IA, CO, OR)

For maps of the states, go here and here -- but not that the partnership recognition map designates by the term used rather than the extent of recognition conferred. This is an impotant distinction, since "domestic partnership" in Washington is more modest, whereas "domestic partnership" in California is basically equivalent to "civil union" in VT, CT, NJ & NH.

These numbers are impressive and, at the moment, expanding rapidly -- although we may soon hit the point where expansion slows again as all the states that are ready adopt these laws do so, and efforts in other states fall to gain momentum for the time being. In any event, the number of states in all these categories is now enough that we can start studying their effects across many states and very large populations, rather than relying on evidence from abroad (to which American policymakers, and indeed Americans in general, have always appeared inexplicably indifferent, regardless of the issue). An article from last year in the journal Pediatrics reads like a roadmap for such research, but we don't really seem to have good empirical work yet -- which we need.