The importance of the courts as the elections draw near...

The failure of conservatives to understand and appreciate the function of the Article III courts in our system never ceases to amaze me. Phrases such as "judicial usurpation of the will of the people" are bandied about by people who appear to know nothing about why the federal courts are independent in our tripartite system of government, and why federal judges may not be removed from the bench (or suffer a pay decrease) except in cases of corruption or other gross malfeasance.

The provisions of the Bill of Rights were not written to protect popular people or to serve the interests of the majority in our democracy. The framers of our Constitution recognized that there would be occasions when the will of the majority would have to be restrained, and that impediments would have to be created to ensure that the will of the majority would, at times, deliberately and intentionally be thwarted. They created the Senate, with its complex procedural rules and the need for cloture votes, to impede and retard the will of the majority. They created the Article III courts knowing that these courts would hand down unpopular decisions. It is true that the US Constitution is primarily a procedural document, but it is also the opinion of many scholars (and of the writer) that the Constitution also incorporates substantive guarantees and protections. It is with particular reference to the Due Process Clauses of the Fifth and Fourteenth Amendments that constitutional scholars are split, with "strict constructionists" at one end of the spectrum and believers in "substantive due process" at the other end.

By their terms, the Due Process Clauses are entirely procedural, and merely guarantee that persons accused of breaking the law must receive fair and impartial hearings. The extremists who believe that "substantive due process" has no place in due process jurisprudence fail to grasp the fact that the law is written for a purpose; that the law is intended to protect concepts that are central to our notion of what it means to be free human beings in a society predicated on the recognition of "ordered liberty." In short, scholars who believe in substantive due process believe not just in the how of the law, but also in the why of the law. It would perhaps be best to characterize the difference between judicial conservatives and judicial liberals by asserting that the latter believe that the Constitution itself protects certain fundamental rights from encroachment by the state or federal governments – that the Constitution implicitly includes “Due Substance” Clauses in parallel with the explicit Due Process Clauses.

It should be noted that the Due Process Clause of the Fifth Amendment is binding on the behaviour of the US government, whereas the Due Process Clause of the Fourteenth Amendment is binding on the behaviour of the states. For the purpose of analysis, claims against the US government implicating the Due Process Clause of the Fifth Amendment are treated almost identically to claims against the states implicating the Due Process Clause of the Fourteenth Amendment. However, over the course of many decades, the US Supreme Court has gone further, and has held that there are some issues involving the exercise of liberty interests that may not be infringed by the state or federal governments, regardless of the fairness of the procedures involved when adjudicating allegations of criminal conduct. In other words, judges and constitutional scholars who believe in the precept of substantive due process maintain that there are some spheres of personal conduct that may not be regulated by the state or federal government at all, absent reasons which may vary in terms of significance, depending on the nature of the liberty interests at stake. These scholars believe that the Due Process Clauses protect substance, and not merely procedure.

The substantive reach of the Due Process Clauses is limited by interpretation of the word “liberty” as that word appears in these Clauses. What is liberty? Freedom from imprisonment clearly lies at the heart of liberty (“Freedom from imprisonment -- from government custody, detention, or other forms of physical restraint -- lies at the heart of the liberty that Clause protects” (Zadvydas v. Davis, 533 U.S. 678 (2001))). However, the Due Process Clause protects people from more than mere freedom from physical restraint (“We have held, of course, that the Due Process Clause protects interests other than the interest in freedom from physical restraint, see Michael H. v. Gerald D., 491 U.S. 110 (Albright v. Oliver, 510 U.S. 266 (1994))). The Court has held that the protections afforded individuals by the Due Process Clause of the Fourteenth Amendment include a parent’s right to send a child to a private school (Pierce v. Society of Sisters, 268 U.S. 510 (1925)), the right to teach a child a foreign language in a parochial school (Meyer v. Nebraska, 262 U.S. 390 (1923)), the right to marry (Zablocki v. Redhail, 434 U.S. 374 (1978)), the right to enter into a multiracial marriage (Loving v. Virginia, 388 U.S. 1 (1967)), the right to procreate (or not to procreate) (Skinner v. Oklahoma, 316 U.S. 535 (1942)), the right to use contraceptives (Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972)), the right to abortion (Roe v. Wade, 410 U.S. 113 (1973)), and most recently, the right of gay men and lesbians to have sex (Lawrence v. Texas, 539 U.S. 558 (2003)). All of these activities are protected by the Due Process Clause of the Fourteenth Amendment – more specifically, by the substantive component of this Clause. Through interpretation of the word “liberty,” the Court has held that all of the above actions involve the engagement of persons in the exercise of their liberty interests, and that all of these actions are protected by this component.

The last of these decisions (Lawrence, supra) ended a 17 year period during which gay Americans could be (and occasionally were) prosecuted and persecuted for having gay sex, even in the privacy of their own homes. Lawrence directly and bluntly overruled an earlier decision (Bowers v. Hardwick, 478 U.S. 186 (1986)) which held that gay Americans could be prosecuted for engaging in same-sex sexual activity, even in the privacy of their own homes. When Bowers was decided, 25 states criminalized gay sex; during the 17 year interval between the handing down of Bowers and its demise with the handing down of Lawrence, gay activists were largely successful in turning to state supreme courts to attack these statutes on independent state constitutional grounds (under our principles of judicial federalism, a state supreme court decision implicating only state constitutional considerations may not be reviewed by the US Supreme Court); by the time Lawrence was handed down, the number of states with such criminal penalties on their books had dropped from 25 states to 14 states. It should be remembered that punishment for violating these statutes varied from a light fine to up to 20 years in prison, depending on the state in which gay people had sex.

(Federal judges are still grappling with the reach of Lawrence. The US Supreme Court, in Lawrence, never actually stated the standard of review that it applied in overturning Bowers and in holding the Texas statute (and 13 other state statutes) to be unconstitutional. Although the US Supreme Court invoked much of the language employed in traditional rational basis review in striking down the Texas statute that prohibited people from having gay sex, constitutional scholars have pointed out that the Court actually engaged in a much more searching standard of review than that involved in mere rational basis review. In May, a three-judge panel of the US Court of Appeals for the Ninth Circuit analyzed Lawrence by carefully scrutinizing what the US Supreme Court actually did in Lawrence, as opposed to what the Court said it did, and concluded that the Court had, at the very least, engaged in heightened scrutiny (quasi-strict scrutiny) in striking down this measure (the dissenting circuit court justice went further, opining that the Court had applied strict scrutiny). The three-judge panel reinstated a lawsuit filed by an Air Force major (Margaret Witt) who had been suspended from duty pursuant to 10 U.S.C. sec. 654 (the basis for the “Don’t Ask, Don’t Tell” policy that prohibits openly gay men and women from serving in the Armed Forces) (see Witt v. Department of the Air Force, No. 06-35644). Circuit Judges Ronald M. Gould and Susan P. Graber held that the Court had applied heightened scrutiny, whereas Senior Circuit Judge William C. Canby held that the Court had applied strict scrutiny.

In June, a divided three-judge panel of the US Court of Appeals for the First Circuit upheld 10 U.S.C. sec. 654 (and thus “Don’t Ask, Don’t Tell”), but also applied a heightened level of scrutiny in its analysis (see Cook v. Gates, Nos. 06-2313, 06-2381, June 9, 2008). Like the Ninth Circuit panel, the First Circuit panel concluded that the Lawrence Court had not, in fact, applied rational basis review. Circuit Judge Jeffrey R. Howard, writing for the majority, held that Lawrence recognized a protected liberty interest in private, consensual sexual intimacy, requiring a “balancing of constitutional interests that defies either the strict scrutiny or rational basis label.” Judge Howard engaged in a meticulous examination of Lawrence, articulating four reasons in support of this holding. First, he noted that Lawrence relied on other cases (such as Roe v. Wade, supra, Griswold, supra, and Eisenstadt, supra) that recognized a due process right in the realm of decisions relating to personal sexual conduct that merited heightened scrutiny. Second, he noted the tenor of the language employed by the Lawrence Court, which used strong language to overturn Bowers and to stress the dignity of gay Americans (“The case…involve[s] two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”). This language was consonant with, and consistent with discussions of core constitutional rights that clearly mandate a greater level of protection. Thirdly, Judge Howard noted that in overturning Bowers, the Lawrence Court explicitly stated that Justice John Paul Stevens’ dissent in Bowers should have been controlling; this dissent clearly asserted that the right to engage in private, consensual gay sex with an adult partner was in the same category as recognized fundamental constitutional rights. Finally, Judge Howard noted what numerous constitutional scholars have noted – which is that, had the Lawrence Court engaged in genuine rational basis review, the State of Texas would undoubtedly have won (this level of review, described as a “paradigm of judicial restraint” (see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)), permits even post hoc justifications for the challenged legislation, and permits the reviewing court to reach out and assert its own justification(s), independent of and in addition to the state’s arguments).

Two circuit panels have now interpreted Lawrence as incorporating a heightened level of judicial scrutiny. The failure of the US Supreme Court to acknowledge, explicitly, the level of review that it applied should not be confused with an assumption that the Court employed rational basis review merely because the Court employed some of the language associated with traditional rational basis review. The Lawrence Court explicitly rejected the notion that rights deserving of a higher level of review than mere rational basis review must necessarily be rooted in the “history and tradition” analysis usually reserved for the recognition of fundamental rights, instead pointing explicitly to an “emerging awareness” of the right to privacy in certain sexual contexts. Two circuits have therefore taken the official position that Lawrence involved more than mere rational basis review; the Ninth Circuit adumbrates a heightened scrutiny analysis, whereas the First Circuit embraces a balancing test in which the right to gay sexual privacy must be recognized and balanced against a sufficiently important governmental interest.)

Strict constructionists would deny that the Due Process Clause of the Fourteenth Amendment (or its Fifth Amendment counterpart) incorporated substantive protections against state action; all of the above decisions would be unsupportable in the eyes of a jurist who adheres to an absolutely literal interpretation of the Due Process Clauses. Rights which Americans take for granted – the right to use contraceptives, the right to teach your children the languages of your choice, the right to marry a person of a different race – would not exist under such a judicial regimen. All of these matters would be subject to the outcome of the democratic process. Article III courts would merely review the procedural fairness of the laws passed by Congress and by the states, completely avoiding any analysis of the substance (or the “why”) of the law.

This is not how the judiciary functions in the context of a constitutional democracy. A key role of the courts is to protect the rights of minorities, consistent with the generally recognized definition of a democracy as being a system in which the majority rules, subject to certain rights that are preserved for minorities regardless of majoritarian sentiment. In United States v. Carolene Products Co., 304 U.S. 144 (1938), the US Supreme Court hinted at what has become a theory of judicial review that arguably operated when Romer v. Evans, 517 U.S. 620 (1996) was handed down. In the oft-cited Footnote 4 of Carolene Products Co., the Court made reference to the possibility that a democracy can, in the words of constitutional scholar John Hart Ely, “malfunction” (see “Democracy and Distrust; A Theory of Judicial Review” by John Hart Ely – this book has become one of the most oft-cited texts employed by constitutional scholars). Ely identifies one type of democratic “malfunction” occurring when a democracy restructures itself in such a manner as to “keep the outs out and to keep the ins in.” This is certainly what occurred in 1992 when the people of the State of Colorado amended their state constitution in such a manner as to deny to gay persons, and to gay persons alone, the right to petition their government, at any and all levels, for redress of grievances, in both the public and the private sectors. Although the US Supreme Court claimed that it adopted the rational basis test in striking down this measure (which was named “Amendment 2”), constitutional scholars have pointed to the strong language employed by the Court in this decision, and have observed that the stated rationale of the Court was not really different from the rationale adopted by the Colorado Supreme Court. (Romer was an equal protection case, and a full analysis of this decision and its implications falls outside the scope of this essay.)

While the writer respects the position adopted by “strict constructionists,” the writer deplores the actual operation of this judicial philosophy and believes it to be fundamentally un-American. The judiciary should be more than an interpretive body; it is a crucial structural and operational check against majoritarian overreaching, or excesses. Associate Justices Antonin Scalia and Clarence Thomas, with their hysterical, shrill, over the top dissents in both Lawrence and Romer revealed, with chilling verbiage, the direction in which their versions of “strict constructionism” would take America.

PHILIP CHANDLER

Religion is not an excuse to break the law!

Conservatives are now in an uproar over a decision handed down by the California Supreme Court on Monday, in which the court held that two Christian doctors could not exempt themselves from the requirements of the state's anti-discrimination statute by refusing to provide artificial insemination services to a lesbian woman on religious grounds. Writing for a unanimous court, Justice Joyce Kennard held that the doctors had neither a free speech defense or a religious free exercise defense for their refusal to provide these services to a gay woman, Guadalupe Benitez. This ruling makes it clear that medical services may not be withheld from gay Californians on the basis of religious conviction.

I find myself wondering whether critics of this decision actually bothered to read the opinion handed down by the California Supreme Court (North Coast Women’s Care Medical Group, Inc. v. Benitez, No. GIC770165). This unanimous opinion analyzed the claim asserted by the plaintiff taking into consideration both US constitutional issues and California state constitutional issues. Under our principles of judicial federalism, a state court opinion that implicates both US constitutional analysis and state constitutional analysis may only be reviewed by the US Supreme Court (or by any other Article III court) to the extent that the opinion in question relies upon US constitutional analysis. If independent state constitutional grounds suffice to sustain the judgment, the US Supreme Court cannot reverse the judgment; it may only negate the US constitutional analysis with which it disagrees.

The California Supreme Court first addressed the standard of review that is applicable to claims of religious objection under the relevant US Supreme Court precedents. Prior to 1990, any law that burdened a particular religious practice was subjected to strict scrutiny (e.g., Sherbert v. Verner, 374 U.S. 398 (1963), Wisconsin v. Yoder, 406 U.S. 205 (1972)). However, in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the US Supreme Court held that a law of general application that was not passed in an attempt to target a particular religious practice, but which nevertheless has the incidental effect of infringing upon a particular religious practice, will be upheld against constitutional attack provided it satisfies rational basis review. This marked a profound change in the manner in which the Court adjudicated claims of Free Exercise violations. The US Supreme Court reiterated that holding three years later in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). Thus, under current US Supreme Court holdings, a religious objector has no federal constitutional right to an exemption from a neutral and valid law of general application on the grounds that compliance with that law violates the religious beliefs of the objector.

It is well established legal doctrine that the US Constitution sets a floor, but not a ceiling, to the rights enjoyed by the people of the United States. State constitutions may be, and frequently are, interpreted to grant the citizens of the respective states additional rights and protections not afforded them under US constitutional analysis. It is amusing to note that the very conservatives who deplore this “one-way ratchet” effect now seek its benefit. In Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527 (2004), the California Supreme Court applied the rational basis review test adopted by the US Supreme Court in Smith (supra) and upheld from constitutional attack the Women’s Contraception Equity Act (WCEA), which requires that employers which provide prescription drug insurance coverage for their employees include coverage for prescription contraceptives. The court explained: “The WCEA’s requirements apply neutrally and generally to all employers, regardless of religious affiliation, except to those few who satisfy the statute’s strict requirements for exemption on religious grounds. The act also addresses a matter the state is free to regulate; it regulates the contents of insurance policies for the purpose of eliminating a form of gender discrimination in health benefits. The act conflicts with Catholic Charities’ religious beliefs only incidentally, because those beliefs happen to make prescription contraceptives sinful.” (Catholic Charities, supra, at p. 549.)

The state supreme court invoked the US Supreme Court’s Smith test in the context of this issue. The court noted that medical practitioners fall under the domain of entities subject to the proscriptions of the Unruh Civil Rights Act. This act requires that business establishments provide “full and equal accommodations, advantages, facilities, privileges, or services” to all persons, notwithstanding their sexual orientation (sexual orientation was explicitly added to the protective ambit of this act in 2005; before 1999, California’s appellate courts had interpreted the act as prohibiting sexual orientation discrimination, despite the fact that the wording of the act did not include reference to sexual orientation).

The plaintiffs asserted that a higher level of review was required because their claim involved “hybrid rights” (the plaintiffs asserted that in addition to infringing their Free Exercise rights, the act infringed their free speech rights under the First Amendment). The state court rejected this assertion, pointing out that the US Supreme Court has never determined whether the “hybrid rights” theory is valid, and has never invoked this theory to justify applying strict scrutiny to a free exercise claim. The state court also invoked precedent from the US Court of Appeals for the Sixth Circuit, which rejected as “’completely illogical’ the proposition that ‘the legal standard [of review] under the Free Exercise Clause depends on whether the free-exercise claim is coupled with other constitutional rights.’ (Kissinger v. Board of Trustees [(1993) 5 F.3d 177, 180 & fn. 1.)” The state court rejected the contention by Catholic Charities that requiring it to provide prescription contraceptive coverage to its employees would violate its First Amendment right to free speech, noting that “compliance with a law regulating health care benefits is not speech.”

In short, the court held that religious beliefs cannot be invoked as a shield to justify disobeying laws of general application. There are many fundamentalist Christians who sincerely believe that gay men and lesbians should be stoned to death; murdering gay Americans on religious grounds is not tolerated in America, and few reasonable people would regard it as proper for a court of law to entertain such a defense to murder charges.

We do not live in a theocracy. We live in a pluralistic, diverse constitutional democracy. We do not get to pick and choose which civil and criminal laws to follow and which laws to break based on personal religious beliefs. The physicians who refused to provide their services to the lesbian women cannot evade their legal responsibility to comply with the law simply because they do not believe that gay women should be permitted to avail themselves of artificial insemination procedures granted without reservation to heterosexual, married women. If these physicians have any sense, they will acknowledge that they do not enjoy special rights merely because they disapprove of gay sex and of gay Americans.

PHILIP CHANDLER

Victory in California!

I am profoundly grateful to Chief Justice George and the other members of the majority who voted to legalize gay marriage in California (in re Marriage Cases, S147999 (2008) 08 C.D.O.S. 5820). By relying entirely on the state constitution’s guarantees of due process and equal protection, without placing any reliance on the Due Process or Equal Protection Clauses of the US Constitution’s Fourteenth Amendment, the majority ensured that this decision is immune to review by the US Supreme Court (cases involving adjudication of only the state constitution may not be reviewed by any Article III court under our system of judicial federalism). I have yet to hear any coherent argument against gay marriage; those who oppose gay marriage frequently make a great deal of noise, but their arguments ring increasingly tired and hollow.

What should be noted is the influence that Lawrence v. Texas, 539 U.S. 558 (2003) had on the majority opinion (although, as noted above, the majority did not place reliance on this decision). The Lawrence Court explicitly and bluntly overturned Bowers v. Hardwick, 478 U.S. 186 (1986) (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”). The Lawrence Court implicitly apologized to the gay community for the manner in which it had demeaned gay Americans (“The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.”). What is noteworthy about Lawrence is the fact that the Court held that Bowers was badly decided at the time that it was handed down; usually, the Court overturns decisions with which it no longer agrees by adducing societal changes as justification for overruling such decisions (for example, in striking down the death penalty as applied to mentally retarded individuals (Atkins v. Virginia, 536 U.S. 304 (2002)) and in cases where the perpetrator was a juvenile at the time that he or she committed the crime in question (Roper v. Simmons, 543 U.S. 551 (2005)), the Court relied upon objective criteria indicative of changing societal norms, in accordance with its holding that the Eighth Amendment’s prohibition of cruel and unusual punishments “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Trop v. Dulles, 356 U.S. 86 (1958))). In Lawrence, the Court was honest enough to admit that it had made a serious mistake in Bowers, acknowledging “…the Court's own failure to appreciate the extent of the liberty at stake.” The Court went on to admit that “[t]o say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.”

The California Supreme Court drew an analogy to what the US Supreme Court did in Lawrence. Instead of framing the issue as being whether or not the California state constitution grants a right to “same-sex marriage,” the court identified marriage as a “fundamental right” under the relevant California state court precedents (e.g. Ortiz v. Los Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1303; in re Carrafa, (1978) 77 Cal.App.3d 788, 791), and then asked whether the state could meet the burdens of “strict scrutiny” to justify limiting marriage to opposite-sex only couples. The adoption of this paradigm lay at the heart of the decision; the court compared this case to its decision in Perez v. Sharp, 32 Cal.2d 711 (1948) (declaring the state’s prohibition of interracial marriages violative of the state constitution’s guarantees of substantive fairness and equal protection). The court, in Perez, did not address the issue in terms of whether the state constitution granted a right to “interracial marriage” – rather, the court addressed the issue of whether or not interracial couples could be denied the right to marry. In in re Marriage Cases, the court addressed the issue of whether or not gay couples could be denied the right to marry. The court accepted the analysis of Chief Judge Judith Kaye of the New York Court of Appeals, in her dissent in the New York gay marriage case (Hernandez v. Robles, 7 N.Y.3d 338 (2006), in which the gay plaintiffs lost) who declared that “Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.”

At least as important as the judgment in in re Marriage Cases was a crucial aspect of the court’s reasoning. The court held that classifications on the basis of sexual orientation are “suspect,” and that gay men and lesbians constitute a “suspect class” for the purposes of equal protection analysis. This is an extremely important development. Legislation that adversely impacts a “suspect class” must be subjected to the highest level of judicial scrutiny, referred to as “strict scrutiny.” Under the relevant California precedents, “strict scrutiny” requires that the state demonstrate that the challenged legislation promotes a “compelling” state interest, and that the challenged legislation is “necessary” to promote that interest. In other words, the challenged legislation must promote a state interest of crucial importance (examples include national security and the protection of life itself); furthermore, only by implementing the challenged legislation can that interest be promoted. Note that this standard is very similar to “strict scrutiny” in federal equal protection jurisprudence. Strict scrutiny in federal equal protection jurisprudence requires that the state demonstrate the existence of a compelling state interest, and that the legislation in question must impinge the disadvantaged group in the “least restrictive” manner possible; that is to day, the legislation must be “narrowly tailored” so as to sweep no more broadly than is essential to promote the interest in question (see Heller v. Doe, 509 U.S. 312 (1993)). Even if the court’s decision is overturned by the voters in November 2008 (a measure will appear on the ballot to amend the state constitution to define marriage as being limited to one man and one woman only), this aspect of the court’s reasoning will not be disturbed. Assuming passage of the amendment, legislation that classifies on the basis of sexual orientation must now be subjected to strict scrutiny by lower courts throughout the state.

Currently, the State of California offers “domestic partnerships” to same-sex couples who choose to avail themselves of this option. These partnerships are substantively almost identical to marriages, and the court engaged in an extended discussion as to whether or not these partnerships constitute an adequate alternative to marriages. The court concluded that the existence of such a two-tiered system created the very real danger that relationships between gay couples would be treated with less dignity and respect than relationships between heterosexual couples. The court further noted, with extraordinary eloquence, that “because of the widespread disparagement that gay individuals historically have faced, it is all the more probable that excluding same-sex couples from the legal institution of marriage is likely to be viewed as reflecting an official view that their committed relationships are of lesser stature than the comparable relationships of opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in some respects “second-class citizens” who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.” The court also noted that acknowledgment by a person that he or she is in a domestic partnership effectively constitutes acknowledgement by that person that he or she is gay; the very term “domestic partnership” denotes a registered gay relationship, whereas the term “marriage,” if retained exclusively for registered heterosexual relationships and used in the same context, denotes a registered heterosexual relationship. Thus the very term “domestic partnership,” when used by a person to describe his or her relationship status, constitutes a public acknowledgement of that person’s sexual orientation – an acknowledgement not demanded of similarly situated heterosexual, married persons.

As alluded to above, it is possible that the California state constitution may be amended by the voters through the referendum process in November 2008 to define marriage as a union of only one man and one woman. The tangible, substantive effects of such an amendment would not be nearly as deleterious as was the case in (for example) the State of Nebraska, in which state the recognition of same-sex relationships was explicitly prohibited by a state constitutional amendment enacted in 2000 (this amendment prohibited the recognition not just of gay marriages, but also the recognition of civil unions, domestic partnerships, and any similar statutory arrangements). This is because California domestic partnerships would not be nullified by the proposed constitutional amendment. Immediately following the handing down of in re Marriage Cases on May 15, 2008, polls indicated that a narrow majority favored enactment of the proposed amendment. However, a Field Poll result released on May 28, 2008 indicated that 51% of registered voters favored allowing gay couples to wed, with only 42% disapproving. Although a coalition of states and right-wing pressure groups has petitioned the court to stay its decision until after the November elections, it appears likely that gay couples will be permitted to marry within the next two or three weeks. This is the first time that a majority of citizens of a state have favored gay marriage. In the event that the court allows such marriages to proceed, voters will be faced with the prospect of dissolving existing gay marriages in November – a very different matter from prohibiting such marriages from being solemnized in the first place.

It remains to be seen whether those Californians who know gay couples will vote to dissolve the marriages of their friends, family members, and colleagues. Regardless of the outcome, political commentators believe that this reflects a turning point in relationships between gay and heterosexual Americans.

PHILIP CHANDLER

California Sees the Light

Social and cultural conservatives, spearheaded by the religious right, are frightened, furious and disgusted by the May 15 decision of the California Supreme Court, in which decision this court held that the California state constitution prohibits the denial of marriage licenses to gay couples (in re Marriage Cases, S147999). Gay and lesbian Americans, on the other hand, met this long-anticipated decision with delight, jubilation, and glee, leading one conservative to compare their reaction to “Visigoths dancing in the ruins of Rome” – a patently offensive comparison in the eyes of most gay people and many heterosexuals, not all of whom oppose gay marriage.

Organizations such as the “American Family Association” (AFA), “Focus on the Family,” (FOTF), and the “Family Research Council” (FRC) applaud efforts to amend the California state constitution to codify the ban on gay marriage at the state constitutional level; a measure to do this may appear on the ballot in November, and polls initially indicated that the outcome could result in this victory for marriage equality being short-lived. However, the analysis undergirding this decision cannot be annulled by such an amendment; such a measure may invalidate the court’s holding, but cannot invalidate the court’s reasoning. This is important, because (as will be discussed) the California Supreme Court became perhaps the second state high court in the nation to conclude that gay Americans constitute a “suspect class” for the purposes of state equal protection analysis. Days later, the US Court of Appeals for the Ninth Circuit became the first federal appeals court in the nation to conclude that gay Americans may constitute a “suspect class” for the purpose of US Constitutional equal protection analysis; a three-judge panel of this Court decided, unanimously, that the military’s categorical ban on gay men and lesbians serving in the Armed Forces cannot be sustained in the light of the US Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) (in which decision the Court struck down all state “sodomy” statutes as applied to gay sex acts performed in private between consenting adults for non-commercial purposes, holding that these statutes violated the Constitution’s guarantees of substantive fairness under the Due Process Clause). The latter development may well be far more significant than the California gay marriage development, for reasons that will be discussed in a later essay. Sufficeth to state that this panel of the Ninth Circuit meticulously analyzed what the US Supreme Court actually did in Lawrence as opposed to what the Court said, to arrive at the conclusion that the US Supreme Court employed a form of heightened scrutiny in Lawrence (see Witt v. Dept. of the Air Force, No. 06-35644 (May 21,2008)).

(See http://lawprofessors.typepad.com/laborprof_blog/files/witt_v_air_force_0635644.pdf for the actual panel decision).

Some conservatives have expressed (groundless) fears that churches will be forced to recognize gay marriages against their religious tenets. At the outset, it should be noted that no church could ever be required to perform gay marriages. The specter of churches being forced to perform gay marriages against their religious tenets as an argument against the recognition of gay marriage is a classic example of the “straw man” argument. Just as no church in the nation is required to perform marriages of previously divorced people, or of people who are not members of that church, so too will no church ever be forced to perform gay marriages. Conservatives should rest assured that the Free Exercise Clause of the First Amendment ensures that churches are (and will remain) free to determine who they may and may not marry. I know of no gay rights activist (or of any gay person) who wishes to force churches to recognize gay marriage. In fact, one of the principle “talking points” advanced by gay rights activists during the debate about gay marriage stresses the fact that heterosexual marriages may be performed with or without the religious ceremony that so many people love; many couples choose to get married by the appropriate official at City Hall rather than in church, and this will apply to gay marriages too. Anti-discrimination statutes that include sexual orientation as a characteristic that may not be taken into consideration in housing, employment, and access to places of public accommodation almost always include an exception for religious institutions; indeed, such an exception is required in order for these statutes to pass constitutional muster.

What is noteworthy about the majority opinion in the California case (in re Marriage Cases, S147999 (May 2008)) is the degree of research and scholarship that was reflected in this decision. The majority made numerous references to California case law, and clearly researched this issue at considerable length. This was reflected in the opening words of the dissent authored by Justice Baxter, who wrote that “The majority opinion reflects considerable research, thought, and effort on a significant and sensitive case.” Sadly, however, three Justices remained wedded (no pun intended) to the tautological and conclusory reasoning adopted by the state (as well as by the majority in the New York gay marriage case (Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006). 7 N.Y.3d 338), in which the state prevailed and the gay plaintiffs lost).

The California decision held that the prohibition of gay marriage violated both the due process and the equal protection guarantees of the state constitution. The case rested entirely on state constitutional law, thereby ensuring that the judgment cannot be appealed to the US Supreme Court (a decision resting entirely on state constitutional analysis may not be reviewed by the US Supreme Court; indeed, a state supreme court decision may only be reviewed by the US Supreme Court to the extent that the state court decision involves US constitutional or statutory adjudication).

The majority opinion made short work of the tired argument that same-sex marriage should not be permitted because same-sex marriage has never been permitted. The majority pointed out that this is not analysis – this is merely a restatement of the issue presented by the plaintiffs. The majority framed the issue not as being whether the state constitution grants a right to “same-sex marriage,” but instead in terms of whether the state constitution granted gay people the right to marry. These are entirely different issues. The majority did not frame marriage in predefined terms as the union of only a man and a woman; it identified marriage as the union of two people who love each other and who wish to enter into the legal and social commitments associated with the institution of marriage, and then asked whether there was any reason that gay couples should not be permitted to enter into this union in the same manner as is currently done by heterosexual couples.

The identification of fundamental rights frequently lies at the heart of due process analysis. In federal constitutional jurisprudence, fundamental rights are often identified as those rights “implicit in the concept of ordered liberty” (see Palko v. Connecticut, 302 U.S. 319 (1937)); they involve principles of justice “rooted in the traditions and conscience of our people” (see Snyder v. Massachusetts, 291 U.S. 97 (1934)); they are rights which are such that “neither liberty nor justice would exist if they were sacrificed” (Palko, supra). The California Supreme Court embarked on a similar analysis of rights recognized as fundamental through interpretation of the California state constitution. However, the California Supreme Court also recognized that while fundamental rights are often rights that have been recognized for lengthy periods of time, historical recognition of such rights is not the only issue considered in their identification. This is somewhat akin to the US Supreme Court’s analysis in Lawrence v. Texas, 539 U.S. 558 (2003) (this decision invalidated all state “sodomy” statutes as applied to sexual conduct between consenting adults in private settings for non-commercial purposes); in Lawrence, the US Supreme Court noted an “emerging awareness” that liberty grants adults a substantial degree of protection in deciding how to conduct their private lives in matters pertaining to sex.

The Lawrence Court made it clear that rights recognized under the Due Process Clause of the Fourteenth Amendment are not limited only to the rights described above, noting that "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry" (cited from County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)). The California Supreme Court cited from relevant California case law to arrive at the same conclusions as those arrived at by the US Supreme Court in its due process jurisprudence, reaching the same result with respect to the identification and recognition of fundamental rights. The California constitution also contains an explicit privacy clause, which has allowed the state courts to develop due process analysis in a manner analogous to that in which the US Supreme Court has developed due process analysis (a long line of case law rests on this development – see, e.g. Meyer v. Nebraska, 262 U.S. 390 (1923), Skinner v. Oklahoma, 316 U.S. 535 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972), Loving v. Virginia, 388 U.S. 1 (1967), and of course Lawrence (supra)). The California Supreme Court framed the issue as one of whether or not gay people should be able to exercise an already recognized fundamental right (the right to marry), rather than whether the court should recognize a new fundamental right to “same-sex marriage.”

In support of this paradigm, the California Supreme Court referred to Perez v. Sharp, 32 Cal.2d 711 (1948), in which decision this court invalidated the California “anti-miscegenation” statute, becoming the first state in the nation to invalidate such a statute (the US Supreme Court invalidated all such statutes 19 years later when it handed down Loving v. Virginia, 388 U.S. 1 (1967)). Perez was handed down by a deeply divided court, as was the case with respect to in re Marriage Cases, supra (the case under discussion). Just as the right to marry should not depend on an individual’s race, the court argued that it should not depend on an individual’s sexual orientation. The state countered with the argument that “domestic partnerships” already provided gay couples who entered into these relationships all of the substantive rights of marriage – however, the court correctly noted that the reservation of “the historic designation of ‘marriage’” exclusively for opposite-sex couples posed a serious risk of denying to gay couples in substantively identical relationships equal dignity and equal respect.

The court then turned to the assertion that the existing marriage statute was invalid under a state equal protection analysis. Whereas the US Supreme Court recognizes three levels of judicial review in cases implicating infringements of the Equal Protection Clause of the Fourteenth Amendment, the California state courts recognize only two levels of judicial review in cases implicating infringements of the California constitution’s equal protection clause.

Most California statutes challenged under the equal protection guarantee are reviewed under the rational basis standard, which is recognized by both state and federal courts; under this deferential standard of review, the burden falls on the plaintiff to establish that the challenged statute furthers the promotion of absolutely no legitimate state interest, or that there is no rational relationship between the putative state interest and the classification drawn by the challenged statute (most, but not all, statutes will survive scrutiny under this standard of review – notable exceptions include Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985); and United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973)).

Statutes that draw classifications on the basis of characteristics such as race or sex are reviewed under “strict scrutiny” by the California state courts; statutes that draw classifications on the basis of race are reviewed under “strict scrutiny” by the US Supreme Court (and other federal courts), whereas statutes that draw classifications on the basis of sex are reviewed under “quasi-strict scrutiny” by the US Supreme Court (and other federal courts) (see United States v. Virginia, 518 U.S. 515 (1996); Frontiero v. Richardson, 411 U.S. 677 (1973)). “Strict scrutiny” is a much more demanding standard of review under both state and federal constitutional jurisprudence; in federal equal protection jurisprudence, a statute will only survive “strict scrutiny” if it is shown to promote a “compelling” state interest, and if it is also shown that the differential treatment promotes that interest in the “least restrictive” manner possible with respect to the right infringed; the statute must sweep no more broadly than is absolutely necessary (this is referred to as “narrow tailoring.”) Federal case law on point includes Korematsu v. United States, 323 U.S. 214 (1944), McCleskey v. Kemp, 481 U.S. 279 (1987), and Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978). Under California equal protection constitutional adjudication, a statute will only survive “strict scrutiny” if it is shown to promote a “compelling” state interest, and if it is also shown that the differential treatment is both reasonably related to and “necessary” to promote the interest in question. Strict scrutiny is only applicable, under both federal and state constitutional adjudication, if the statute in question adversely impacts members of a “suspect class” or if the statute in question adversely impacts the exercise of a “fundamental” right.

The California Supreme Court was faced with an issue of first impression under California law – whether gay men and lesbians constitute a “suspect class” for the purposes of state equal protection analysis.

Members of the group in question must satisfy several of a number of criteria in order to be identified as members of a “suspect class” under both federal and state constitutional analysis. These criteria include (but are not limited to) a history of past persecution; persecution based on the presence of an “immutable” characteristic possessed by members of that class; persecution based on a characteristic that does not relate to the ability of members of that group to contribute to society; relative political powerlessness; and small size of the group relative to larger society. Other language that has been noted includes membership in a “discrete and insular minority” (see United States v.Carolene Products Co., 304 U.S. 144 (1938) (Footnote 4). The state supreme court held that gay men and lesbians are a “suspect class” for the purposes of equal protection analysis, and that classifications on the basis of sexual orientation are thus “suspect,” requiring that any statutes that classify on this basis be subject to “strict scrutiny.”

It is important to note that not all of these criteria have to be satisfied in order for the group in question to be accorded “suspect class” status under both federal and state equal protection jurisprudence. The California Supreme Court noted that religion is certainly not an “immutable” characteristic, yet all religious groups are “suspect classes” under federal and state constitutional jurisprudence. The majority held that gay men and lesbians constitute a “suspect class” under state constitutional analysis. In arriving at this determination, the majority noted that sexual orientation is, at the very least, highly resistant to change; the court also noted that the characteristic in question is one so central to the identification of members of the class in question that they should not have to change this characteristic in order to receive the benefits of this standard of review.

In holding that gay people constitute a “suspect class,” California became perhaps the second state high court to in the land to make this determination. The Hawaii Supreme Court made a similar determination in Baer v. Miike, 910 P.2d 112 (Hawaii 1996) – in this case, the Court upheld the denial of marriage licenses to gay couples after the voters amended the Hawaii constitution to codify marriage, at the state constitutional level, as being a union of one man and one woman only. It is important to note that gay people remain a “suspect class” in the eyes of the state courts of Hawaii, notwithstanding the state constitutional amendment that forced the trail court to deny marriage licenses to gay couples, and that forced the state supreme court to uphold the denial of marriage licenses to gay couples. This has important ramifications in that any state statute in Hawaii that classifies on the basis of sexual orientation, to the detriment of gay people, must be subjected to “strict scrutiny.”

The hard right is furious with the California Supreme Court for its decision in this landmark case, and is mounting a drive to amend the state constitution to prohibit the recognition of same-sex marriages in November of this year. It is by no means clear that this initiative will pass. Should the court refuse to stay its decision, gay couples will start marrying three weeks from now. It is one thing for voters to pass an anti-gay marriage amendment that has no direct impact on gay and lesbian citizens who have never been permitted to marry, but an entirely different matter to vote to dissolve existing marriages.

Most Californians know people who are gay; while the hard right will certainly do everything in its considerable power to pass such an amendment, it is not clear whether the citizens, confronted with gay couples who have married and who have been married for five months, will vote to dissolve those marriages. Clearly, the future of this decision lies in the hands of gay rights activists and ordinary gay people in California, who should fight to preserve this historic victory and to ensure that California remains the second state to recognize gay marriage in full.

Two down, with 48 to go.


PHILIP CHANDLER

Fear and Loathing in Florida......

Ponce de Leon is a small town in the Northwest Florida Panhandle in Holmes County, not far from the Alabama state line, with a population of roughly 2,200. This town is billed as an idyllic rural enclave located half way between Tallahassee on the east, and Pensacola on the west. This town’s Web site describes Ponce de Leon as retaining “a rustic charm of beauty and tranquility, all its own [sic].” Some people believe that the Spanish explorer, Juan Ponce de Leon, may have searched for the Fountain of Youth in this area. Whether or not this is true is a matter of historical conjecture; what is not a matter of conjecture, however, is the fact that the Holmes County School Board (which has jurisdiction over Ponce de Leon High School) has besmirched one of the core ideals to which Americans claim to aspire.

Heather Gillman is an eleventh grade student at Ponce de Leon High School. Heather identifies as heterosexual, but is a staunch supporter of her gay friends and acquaintances. She expresses her support for gay Americans by wearing T-shirts carrying slogans such as “Gay? Fine By Me,” “I Support My Gay Friends,” and “God Loves Me Just the Way I Am,” along with stickers bearing rainbows and pink triangles.

David Davis is the principal of Ponce de Leon High School. High school principals are generally considered to be pillars of the community, alongside sheriffs, bank managers, town clerks, teachers, firefighters, and mayors. Davis, however, appears to have transcended all of these figures by managing to travel backwards in time – quite an accomplishment for a mere high school principle – to the 1950s.

With the backing of the Holmes County School Board, Davis prohibited all students from displaying such messages of support. Any student who so much as utters a single word supporting the rights of gay people is subject to suspension. Davis has already suspended several students for wearing gay-themed clothing (including a rainbow-colored belt). Furthermore, Davis interrogated a student (named “Jane Doe” for legal purposes) who told a teacher’s aide that she was a lesbian and that she was being taunted by other students. Davis summoned Doe into his office in September 2007 and instructed Doe “not to be gay” and not to tell anybody that she is gay. Davis also told Doe not to mix with or talk to any of the “middle school” girls, and Davis further opined that “gay pride” was a disgrace to the school; that being gay was “against the Bible;” and that Doe should not “go down that road.” Davis also declared that students who wear gay-supportive T-shirts or other symbols expressing support for the rights of gay people are members of a “secret society” and are members of an “illegal organization.” The school board defined an “illegal organization” as “any attempt to use the school day for activities that are not school related or school sponsored.”

Heather Gillman defied both Davis and the school board, filing a lawsuit in Federal District Court against Davis and against the school board under 42 U.S.C. section 1983. The lawsuit contends that defendants Davis and the school board violated Gillman’s First Amendment rights to freedom of expression and association, as made binding upon the states by the Due Process Clause of the Fourteenth Amendment. The lawsuit contends that the defendants’ policy with respect to “illegal organizations” and membership in a “secret society” is unconstitutional, both as applied and on its face. More specifically, the complaint asserts that the policy is void for vagueness, overbroad, and unconstitutional.

Only in America – in the year 2008 – could such a ludicrous spectacle unfold in a court of law. As other Western nations become increasingly accepting of their gay citizens, and as barriers to equal treatment of gay people fall in nation after nation, the US stubbornly appears to move full tilt backwards with respect to this particular issue.

There is absolutely no question that both Davis and the school board will lose – big time. Both case law and common sense are firmly on the side of the students, who are being deprived of their right to political expression, as guaranteed them by the First Amendment to the US Constitution. This deprivation occurs under color of state law, thus permitting the plaintiffs to file suit under 42 U.S.C. section 1983 and granting the Federal District Court subject matter jurisdiction under 28 U.S.C. section 1331 (federal question) and 28 U.S.C. section 1343(a)(3) (civil rights).

On June 26, 2003, the US Supreme Court handed down Lawrence v. Texas, 539 U.S. 558 (2003), declaring that all state statutes prohibiting people from having gay sex are unconstitutional as applied to private sexual activity between consenting adults for non-commercial purposes. The Court made it clear that gay people are fully entitled to respect for their private lives, and that the state cannot demean the dignity of gay Americans merely because of moral disapproval. In sweeping terms, the Court apologized for an earlier ruling (Bowers v. Hardwick, 478 U.S. 186 (1986)) in which the Court had reached the opposite conclusion, thereby permitting the states to criminalize gay people for having sex, even in the privacy of their own homes. The Lawrence Court made it clear that it had failed, utterly, to treat gay Americans with the respect that they deserved as members of a legitimate minority within the framework of a representative democracy, and the Court bluntly announced that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

The Lawrence Court could have overruled Bowers using an equal protection analysis, and many legal commentators were surprised by the Court’s decision to go further. Section I of the Fourteenth Amendment declares that no state may “deny to any person within its jurisdiction the equal protection of the laws,” and most legal scholars believed that the Court would limit its analysis, in Lawrence, to the equal protection argument advanced by the gay plaintiffs. However, the Court went much further, holding that laws criminalizing same-sex sexual activity violated the Due Process Clause of the Fourteenth Amendment.

There are no “secret societies” in 21st century America. Furthermore, neither Heather Gillman nor her fellow students attempted to hide their political views from the school authorities; to the contrary, they made it extraordinarily clear that they believed in the right of the lesbian student (and gay students more generally) to receive an education without being subjected to harassment and abuse. There is nothing “illegal” about a group of students protesting such harassment, whether limited to the school context or expanded to embrace broader social goals. In Tinker v. Des Moines Independent. Community. School. District., 393 U.S. 503 (1969), the US Supreme Court upheld the right of students to wear black armbands as a gesture of protest against the war in Vietnam. Then, as is the case now, the students were not disruptive; in wearing armbands, they were “quiet and passive” and “did not impinge upon the rights of others.” Furthermore, the students in Tinker did not act in a manner that “materially and substantially interfere[d] with the requirements of appropriate discipline in the operation of the school” (cited from Burnside v. Byard, 363 F.2d. 744,749 (1966)). The students at Ponce de Leon High School are not acting in a manner that in any way interferes with the administration of appropriate discipline at the school.

The US Court of Appeals for the Eleventh Circuit, which will hear any appeal from a decision handed down by the US District Court, has addressed a very similar issue, in the context of college education. In April 1997, this intermediate appellate court declared unconstitutional, in Gay Lesbian Bisexual Alliance v. Pryor (docket number 96-6143), an Alabama state statute that forbad colleges and universities from using public funds to “sanction, recognize, or support” the activities or existence of any group or organization that “fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws of Sections 13A-6-63 to 13A-6-65, inclusive.” The Alabama statute went further, prohibiting colleges and universities that received public funding from permitting or encouraging its members to provide information or materials explaining how such acts may be performed. Sodomy was defined as ‘any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.” Thus, oral sex between unmarried persons was defined by the Alabama criminal code as a form of sodomy. This statute was clearly aimed at the gay and lesbian community, and was intended to prevent colleges and universities that received public funding from supporting the activities of any group or organization that promoted the so-called “homosexual lifestyle.”

It is well established that the First Amendment protects advocacy to break a law. With respect to such advocacy, this protection is limited in one important respect – in Brandenburg v. Ohio, 395 U.S. 444 (1969), the US Supreme Court held that the only forms of advocacy or expression that may be criminalized are those forms of advocacy directed to “inciting or producing imminent lawless action and [that are] likely to incite or produce such action” [emphasis added].

The First Amendment therefore protects the right of any person, gay or heterosexual, to advocate breaking any law that prohibits same-sex or opposite-sex “sodomy” (as defined above). This conservative Court of Appeals held that the Alabama statute discussed and struck down was not capable of a narrowing construction that would have enabled the state to enforce it against speech directed to such incitement and likely to produce such action. The Alabama statute was broad by its very terms (referring to the promotion of a “lifestyle or actions”) – hence, it was not possible to argue that the statute merely impinged upon speech falling outside the protective ambit of the First Amendment, as described by Brandenburg. The appellate court also noted that the Alabama statute constituted viewpoint discrimination – something that is prohibited within the context of a limited public forum (such as those fora created by state universities and colleges). A state university may determine what subjects are appropriate for discussion in such a forum, but may not prescribe or proscribe the positions that students may choose to take with respect to those subjects (see Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)).

The appellate court also upheld the district court’s determination that the statute was unconstitutional on its face. A statute is deemed to be unconstitutional on its face if there are no sets of circumstances under which application of the statute in question could ever be found to be constitutional; in other words, a statute is unconstitutional on its face if every application of that statute, in every set of circumstances, would yield an unconstitutional result (see US v. Salerno, 481 U.S. 739 (1987), where this tent of statutory construction was expressed, albeit in dicta). Facial invalidation of a statute is “strong medicine,” and the Court of Appeals made it clear that such invalidation should only occur if the reviewing court is convinced “that the identified overbreadth is incurable and would taint all possible applications of the statute.” Generally, a statute should “be declared invalid to the extent that it reaches too far, but otherwise left intact.” In First Amendment jurisprudence, a statute that is challenged on its face will be upheld if it is “readily susceptible” to a narrowing construction that would make it constitutional. The key phrase to consider is the phrase “readily susceptible” – a federal court will not rewrite a state statute to conform it to constitutional requirements unless the state statute in question is readily susceptible to the proposed limitation. The District Court held that the Alabama statute was not readily susceptible to a narrowing construction that would render it constitutional, and the Court of Appeals agreed with the District Court.

Note that the above analysis would be applicable were gay sex to be illegal in the State of Florida, as was the case in some 14 states before the US Supreme Court handed down Lawrence (supra). Here, school principal Davis and the Holmes County School Board have attempted to gag a group of students who are in no way advocating the violation of any law. These students are merely attempting to express their support of the right of one of their members to be treated decently and in a manner consistent with the educational mission of the school. Both Davis and the School Board have engaged in the worst form of McCarthyism – declaring that those students who support the rights of gay people are members of an “illegal organization” and members of a “secret society.”

We are not living in the 1950s, much as many right-wing commentators would like to see a return to the values that defined that era in American political life. Joseph McCarthy – a vicious, thuggish, bullying drunk – died shortly after his disgrace and censure by the US Senate. We live in a diverse, pluralistic society in which gay people have won some measure of acceptance, in both state and federal political spheres. Notwithstanding the rantings of jurists such as Associate Justice Antonin Scalia and Associate Justice Clarence Thomas, the US Supreme Court has declared that gay Americans are entitled to respect for their private lives, and that the constitutional guarantees of substantive fairness and the equal protection of the laws are available to members of this group, just as they are available to members of any other group of law-abiding citizens. Principal Davis and the Holmes County School Board have besmirched the values that are integral to the American political experience. Twelve years ago, another school board and another school principal disregarded these values, causing the US Court of Appeals for the Seventh Circuit to reinstate a lawsuit filed by Jamie Nabozny against the Ashland, Wisconsin School District and against school principal Mary Podlesny; the school authorities literally laughed at Nabozny’s pleas for help after he was repeatedly beaten up, shoved into a urinal, and mock-raped by several homophobic bullies (see Nabozny v. Podlesny, 92 F.3d 446 (1996)). Just as Davis told Jane Doe “not to be gay,” Mary Podlesny told Jamie Nabozny that he should expect such vicious taunts and physical abuse if he “insisted” on being openly gay. Just as three judges of the US Court of Appeals for the Seventh Circuit expressed their disgust, referring to the defendant’s arguments as “indefensible,” so too will three judges of the US Court of Appeals for the Eleventh Circuit express their disgust when this case reaches them and when they learn about the “secret society” – members of whom comprise somewhere between 4% and 10% of the American population.


PHILIP CHANDLER

I feel, therefore I hate......

It has long been argued by many psychologists, psychiatrists, and other mental health professionals that homophobia may (at least in some cases) reflect deep-seated, unacknowledged feelings of same-sex sexual attraction on the part of those men and women who engage in homophobic conduct and who participate in verbal and physical attacks against openly gay men and lesbians. This argument borrows heavily from the Freudian concepts of “projection” and “reaction formation”. When a person has feelings about himself or herself that make that individual feel very uncomfortable, that person may assign these feelings to a convenient external target (projection), thus enabling the individual to evade the implications of any self-analysis that the individual would otherwise be forced to undertake. When these impulses are extremely powerful and evoke deep psychological discomfort, the subject may react to these impulses by creating an antithetical construct that serves to block this deep discomfort (reaction formation). In Freudian terminology, the subject creates an antithetical construct to block the repressed cathexes (the libido’s charges of energy). Thus, a person who harbors homosexual impulses and desires may project those impulses onto openly gay men and lesbians, and may repress these desires by manufacturing a powerful hatred of all homosexuals. This theory is reflected in English literature – the expression “The lady doth protest too much, methinks” (a statement made by Queen Gertrude in Shakespeare’s “Hamlet”) has come to stand for the assertion that the subject’s ardent denial of a proposition may really reflect an attempt to hide the embarrassing truth. The Bard of Avon possessed deep wisdom, also reflected in the advice that Polonius gave to his son Laertes (from “Hamlet”) “To thine own self be true, And it must follow, as the night the day, Thou canst not then be false to any man.” Are homophobic men and women really reacting negatively to homosexuality in others, or are they in fact desperately (and subconsciously) reacting to their own homosexual desires and impulses?

One of the most serious problems associated with psychodynamic theories is that they do not readily lend themselves to empirical testing, and have, for the most part, been unfalsifiable and hence untestable. However, a serious attempt was made to answer the above question by researchers from the University of Georgia in 1996.

Researchers Henry Adams, Lester Wright Jr., and Bethany Lohr of the Psychology Department at the University of Georgia conducted a study in which they assessed the levels of sexual arousal expressed by subjects drawn from two groups of men who viewed heterosexual, lesbian, and gay male pornography. The study involved a total of 64 men between the ages of 18 and 31. These men comprised two groups – homophobic men (the experimental group) and nonhomophobic men (the control group). The subjects were assigned to these groups based on their responses to the “Index of Homophobia” (a 25-question assessment tool that yields a score of between zero and 100 to determine the extent to which men display characteristics indicative (as explained by the researchers) of the levels of “dread” a person experiences “when placed in close quarters with a homosexual.”) In addition, the subjects were administered the self-rated “Aggression Questionnaire” to determine whether there was a correlation between anti-gay attitudes and overall measures of aggression.

Of the 64 men studied, 35 men exhibited strong homophobic traits whereas 29 men did not. All of the men described themselves as exclusively heterosexual, and all of the men stated that they had never engaged in any form of homosexual activity.

Each subject viewed videotapes displaying three types of sexually explicit activities – heterosexual, lesbian, and gay male sexual activity. The researchers included lesbian sexual activity because it had proven to be “highly sexually arousing to heterosexual men and is a better discriminator between heterosexual and homosexual men than other stimuli”. (Any person who is even vaguely familiar with heterosexual American norms knows that this statement is profoundly accurate!) To compensate for any effect that the order in which the tapes were viewed could have had an impact on the results, the orders in which the tapes were shown to the subjects were randomly varied. The videotapes were shown to the subjects individually, in a soundproofed room. Each subject was hooked up to a penile plethysmograph. A plethysmograph is an instrument that measures changes in volume within an organ or whole body, usually as the result of blood flowing into that organ or whole body; a penile plethysmograph measures changes in blood flow into and out of the penis using a mercury-in-rubber ring placed around the shaft of the subject's penis to measure changes in circumference, thereby providing researchers with a truly objective and accurate measure of sexual arousal. By showing the subjects these videotapes in random order, individually, in a soundproofed room, relying on readings of sexual arousal from an instrument that objectively detected tumescence as opposed to relying on self-reports of sexual arousal, the researchers eliminated several potential confounding variables (such as embarrassment at taking this test in front of peers, effects resulting from the sequence in which the videotapes were shown, and inaccurate self-reporting about the extent to which the subjects were actually aroused by the different forms of sexual activity that they observed).

After watching the videotapes, the men were all asked about the extent to which they were aroused during their viewings of each of the three forms of sexual activity. This provided the researchers with subjective responses that they could compare to the objective readings obtained from the penile plethysmograph.

When asked to give their own subjective assessment of the degree to which they were aroused whilst watching the three videotapes, the men in both groups gave answers that correlated significantly with the results of the objective physiological assessment (the results reported by the penile plethysmograph), with one marked exception: the homophobic men gave verbal responses that diverged sharply from the physiological responses reported by the penile plethysmograph, in that their verbal responses significantly underreported the degree of arousal that they experienced when watching the videotape showing gay male sexual activity.

Men in both groups were aroused to about the same extent when viewing the videotape showing heterosexual sexual activity and when viewing the videotape showing lesbian sexual activity. There was, however, a significant difference in the degree of sexual arousal exhibited by men from the two groups when viewing the videotape showing gay male sexual activity. In the words of the researchers, “The homophobic men showed a significant increase in penile circumference to the male homosexual video, but the control [nonhomophobic] men did not”.

A more detailed breakdown of the results revealed that while 66% of the nonhomophobic men (from the control group) showed no significant arousal whilst watching the gay male videotape as measured by tumescence, only 20% of the homophobic men showed little or no evidence of sexual arousal as measured by tumescence. Similarly, while only 24% of the nonhomophobic men showed definite tumescence while watching the videotape showing gay male sexual activity, 80% of the homophobic men showed “moderate to definite tumescence” while watching this videotape.

Plethysmographs do not lie. However, it appears that an overwhelming percentage of the homophobic men did lie.

There was no relationship between homophobic attitudes and overall aggression (as measured by the “Aggression Questionnaire”).

This study was limited to men, due in part to difficulties associated with determining the extent to which women are sexually aroused. Extrapolation of the conclusions of this study to lesbians and to outwardly heterosexual women who harbor gay tendencies is dangerous for a number of reasons, not the least of which is the different set of dynamics that motivate women (heterosexual women have shown themselves, in poll after poll, to be less likely to harbor homophobic attitudes than are heterosexual men).

What can be inferred from the results of this study?

If one assumes that the plethysmograph really did measure sexual arousal in all of the subjects, then one unavoidable conclusion of this research is that the men from the experimental group (the homophobic men) were sexually aroused by the videotape showing graphic gay male sexual activity, whereas the men from the control group (the nonhomophobic men) were not sexually aroused by this activity. This supports the assertion that the overt anti-gay attitudes exhibited by the homophobic men did indeed serve as a “cover” (or “beard”) for their own desires to engage in gay sexual activity. A corollary of this conclusion is that those men in the control group (the nonhomophobic men) were secure in their sexuality and did not “need” to resort to expressions of homophobia. In short, one conclusion that may be drawn from this research is that overt expressions of homophobia do, in at least some cases, constitute forms of projection and reaction formation, and that overtly homophobic men may indeed, at least in some cases, suffer from internalized homophobia and self-hatred.

(It should be noted that the researchers did propose one alternative hypothesis, which was dismissed by academic peers as highly unlikely. The researchers proposed that the increased blood flow to the penises of the homophobic men might have been a reflection of anxiety as opposed to sexual arousal. While this is possible, the writer knows of no link between anxiety and the attainment of erections! Indeed, anxiety has (in the writer’s opinion) precisely the opposite effect on male sexual physiology…)

The results of this study were printed up in the highly prestigious “Journal of Abnormal Psychology”. It should be noted that this journal is one of the most influential and prestigious scientific journals in the field, and that the results of studies are not printed in this journal unless the studies meet a number of criteria of excellence. (In a different post, I have addressed the poor quality of the vanity journal which Paul Cameron has paid (by the page!) for his “studies” to be published.)

This research is of more than academic significance. Up until fairly recently, many courts of law in the US tolerated the “gay panic” defense in those cases where ostensibly heterosexual men were accused of murdering gay men who made sexual advances towards them. This defense held that murders committed under these circumstances were reflections of the sexual ambiguity of the perpetrator, who was regarded as the true “victim” insofar as he was “forced” to kill the gay “provocateur” in order to reconcile himself to the true nature of his desires. This obscene inversion of the status of the victim and the perpetrator was actually tolerated throughout the US for many years. Matthew Shepard – the University of Wyoming college student who was robbed, pistol-whipped, beaten to a pulp, and then tied to a split-rail fence outside of Laramie, WY – was the victim of a savage gay bashing perpetrated by two Laramie-bred thugs (Aaron McKinney and Russell Henderson), both of whom advanced this defense when tried for Shepard’s murder (Shepard was found tied to the fence about 18 hours later, cut down, and taken to the hospital, where he died several days later without ever regaining consciousness). McKinney’s girlfriend, Kristen Price, told reporters that robbery was only one motive for the crime – according to Price, Shepard embarrassed the two perpetrators by telling them that he was gay and that “he wanted to get with Aaron and Russ”, setting the other patrons to “snickering.”

The “homosexual advance” defense has been presented in courtrooms throughout the US to reduce murder charges to manslaughter, in cases where “self-defense” was shown and in cases where the killings took place in “the heat of passion”. Such defenses have even succeeded in cases in which the defendant actually had sex with the gay victim and then killed the gay victim. This defense is premised on the theory that a person with latent homosexual tendencies will react with extreme and uncontrollable anger when propositioned by a gay man, or immediately after having sex with a gay man. Even in cases where this defense is not explicitly presented at trial, the mere admission of the victim’s homosexuality has led juries to convict the defendant on the lesser of multiple charges, as though the victim was “asking for it” by his behavior or even by his mere existence (in much the same way that women who have been raped have been depicted in courtrooms throughout the US as having been “asking for it”).

Juries have not been the only entities to display such bias. In 1988, in a case that drew national headlines and was reported by the three major television networks, Texas state court judge Jack Hampton, at the sentencing hearing of a man who was convicted of killing two gay men, handed down a 30-year sentence instead of the life sentence requested by prosecutors. In handing down the lenient sentence, Hampton made the following observation: “I don't much care for queers cruising the streets picking up teenage boys ...[I] put prostitutes and gays at about the same level ... and I'd be hard put to give somebody life for killing a prostitute."

In 1987, Broward County (Florida) Circuit Judge Daniel Futch, presiding over the murder trial of a gay man named Daniel Wan (who was beaten up and killed outside of a bar by assailants who referred to him as a “faggot” as they kicked him to death and threw him up against a moving car), jokingly asked the prosecution at a pre-trial hearing: “That's a crime now, to beat up a homosexual?" When the prosecutor responded, "Yes, sir. And it's a crime to kill them”, the judge quipped, "Times really have changed." Although the judge apologized and maintained that he was joking, he was removed from the case.

The societal implications of this mindset are chilling. Until gay people are accepted by mainstream US society – accepted, as opposed to tolerated – there will always remain a stigma associated with being gay. This stigma will continue to feed into the dynamic outlined in this article. Outwardly heterosexual men who have homosexual tendencies will continue to bury those feelings under a blanket of self-hatred, which in turn engenders overt expressions of homophobia (which can, in extreme cases, lead to the murder of gay men and lesbians). Some of the very courts that are tasked by society to bring gay-bashers to justice have, themselves, endorsed the behavior of the gay-bashers. In 1986, the US Supreme Court enshrined contempt for gay Americans into constitutional law, holding that the Due Process Clause of the Fourteenth Amendment did not grant to gay persons the right of sexual privacy (see Bowers v. Hardwick, 478 U.S. 186 (1986)). This opinion was written in tones of sneering contempt. Fortunately, the US Supreme Court explicitly and bluntly reversed Bowers on June 26, 2003 (see Lawrence v. Texas, 539 U.S. 558 (2003), in which this Court actually apologized to gay Americans for its decision in Bowers, holding that “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”). While the outright reversal of Bowers will accomplish much to ensure that gay Americans are treated as equals in society, it takes more than a US Supreme Court decision to change the attitudes of a generation. Study after study has shown that heterosexual Americans who know gay people personally are much less likely to be homophobic than are heterosexual Americans who claim not to know gay people personally.

It is for this reason that gay Americans have a responsibility both to themselves and to their community to live their lives openly and honestly. It is for this reason that those gay men and lesbians who remain closeted are in a position to advance both their own interests and the interests of the gay community more generally – simply by ending the lies and being themselves.

PHILIP CHANDLER

Another Country......

I am currently doing business in the UK, and am stunned by the difference between the manner in which the UK treats gay people and the manner in which the US treats gay people. Whereas gay people living in the UK receive respectful treatment and a modicum of fairness from both their government and their society, the US appears to be headed full tilt backwards with respect to this particular issue.

Here in the UK, employment and other forms of discrimination based on sexual orientation are strictly prohibited; such discrimination is treated as severely as is discrimination on the basis of race or national origin. It is considered completely unacceptable to fire a person from a job at which that person excels merely because that person is gay. Furthermore, this is not a mere government objective; this is considered to be unacceptable by the people. Gay persons living in the UK may enter into “Civil Partnerships” which are the equivalent of marriage in all but name. Whereas only one state in the US (Massachusetts) permits gay marriage, Civil Partnerships are recognized throughout the UK. Gay marriage in Massachusetts is recognized at the state level only, thereby denying to gay couples in such marriages about 1,049 federally recognized benefits and privileges enjoyed by married heterosexual couples. Civil Partnerships in the UK grant to gay couples all of the rights and privileges of marriage at all levels. Several states in the US recognize gay marriage at the state level in all but name. These relationships are referred to as “Civil Unions” in Vermont, Connecticut, New Hampshire, and New Jersey, and as “Domestic Partnerships” in California, Hawaii, and Oregon. Although there has been progress in the US (a total of about eight states now grant to gay couples the privileges and benefits of marriage at the state level), this progress has been much slower and more halting than the progress realized by gay people living in the UK. (At the time of writing this, a state court in Iowa has just handed down a decision holding that the denial of marriage licenses to gay couples is violative of the Iowa state constitution; if this decision is upheld by the Iowa Supreme Court, the State of Iowa will be forced to recognize either gay marriage itself or some form of civil union as described above.)

One reason for this is undoubtedly the lack of an organized evangelical right-wing movement here in the UK. Whereas fundamentalist “Christians” are still able to disease the cultural discourse in the US, there are far fewer people in the UK who tap into a fundamentalist Christian model and who consider it to be their duty to force their particular narrow, moralistic agenda onto the people of the UK. The full provisions of the Equality Act (Sexual Orientation) went into effect here in the UK a few months ago. Although exemptions exist for priests and ministers of religion, even religious organizations must abide by the provisions of this Act. Thus, a Catholic adoption agency that wishes to serve the public by providing children in need of homes to prospective adoptive couples must consider applications filed by gay couples who are capable, in terms of the requirements of adoption law, of giving loving homes to children in need of such homes. Several Catholic adoption agencies have actually shut themselves down in the face of this requirement, thereby depriving children in need of loving homes of the possibility of being adopted.

The exemptions apply only to those members of religious organizations who are actual ministers of religion. Thus, no church can be forced to marry a gay couple, since such marriages invariably involve senior church officials. However, a church that matches children for adoption up with prospective adoptive parents cannot refuse to consider applications filed by gay couples, and must treat such applications on an equal footing with applications filed by heterosexual couples. One right-wing newspaper – the Daily Mail – complains about this, making explicit the (demonstrably false) assumption that a child fares better when raised by two people of the opposite sex (there is now an abundance of literature that shows that children raised by two same-sex parents fare just as well as children raised by two opposite-sex parents); but that is the extent of the protest against the “gay lobby.”

Legislation that forces religious bodies to treat gay people in the same way as heterosexual people would be unthinkable in the US, by virtue of the fact that the US has a written Constitution; federal courts have established a massive body of case law dealing with the First Amendment rights of both people and churches. However, the lack of a written constitution permits Parliament in the UK to pass legislation that would have the above-cited impact on Catholic adoption agencies. In the US, such Catholic adoption agencies would be able to assert a First Amendment defense for the practice of excluding gay people as adoptive parents.

Another difference between the UK and the US (in terms of popular culture) is the differing emphasis placed on marriage. In the UK, it is entirely reasonable and widespread for women to bring children up on their own, and for men and women to live together without getting married. The Conservative Party (also known as the Tory Party) wishes to re-emphasize the importance of marriage and the traditional family, but faces fierce opposition from figures in government who themselves are either divorced or who never married. David Cameron – the leading light of the opposition party (the Tories) – was flustered into silence recently when asked by a highly educated, intelligent woman who had risen through the political ranks and who was also a single mother, whether she should get married. The social culture in the UK is much more accepting of different family structures than is the social culture in the US.

Together with legal acceptance of gay people has come cultural acceptance. Schools have implemented zero-tolerance anti-bullying campaigns that make it much easier for gay children to participate both socially and academically. Whereas gay boys in the US have to worry about getting themselves shoved into urinals by heterosexual bullies, gay boys in the UK are protected from such abuses by stringent anti-bullying campaigns that are taken seriously by both teachers and students alike. Quite simply put, it is not acceptable to harass and abuse a child in the UK merely because that child is gay or is perceived to be gay.

Ironically, the progress that gay people have made in the UK can be explained to some degree by the extent to which gay people in the UK were previously hated, marginalized, shunned, and harshly treated by the law. Alan Turing – the mathematical genius who developed key concepts in computer science and whose contributions to the branch of mathematics dealing with encryption and code breaking enabled the British authorities to crack the Nazi Enigma machine and the Lorenz SZ 40/42 machine – was openly gay, and was arrested for “gross indecency” under Section 11 of the Criminal Law Amendment Act of 1885 after he acknowledged having had a sexual relationship with a man in Manchester. Turing was unrepentant and open about his sexuality in an era and in a country in which homosexual acts were illegal and in which homosexuality itself was treated by psychiatrists as a mental illness, The alternative being a prison sentence, Turing was forced to undergo hormone “therapy” in which his body was pumped full of estrogen, causing him to grow breasts. Turing was found dead on 8 June 1954, apparently having committed suicide by biting into and eating part of an apple laced with cyanide. Although the cause of death was established by the autopsy as cyanide poisoning, the apple itself was never tested for cyanide, leaving open the question as to whether Turing had indeed committed suicide, was the victim of an accident (his mother vehemently asserted that Turing was careless in handling and storing dangerous chemicals), or was assassinated (his homosexuality was certainly perceived as a security risk). Oscar Wilde – the brilliant playwright, novelist, and poet – was convicted under the same statute on 25 May 1895 and was sentenced to two years’ hard labor (scholars agree that the prison sentence at Reading Gaol ruined Wilde’s health and contributed to his early death a mere two years following his release). Sex between men eventually became legal in the UK, but the age of consent for gay sex was set at 18, whereas the age of consent for heterosexual sex was set at 16. In July 2000, the European Court of Human Rights heard an appeal from a gay man from Yorkshire who had been prosecuted for engaging in group sex and who had been conditionally discharged for two years in November 1996 – the Court of Human Rights vacated his conviction, and the man received almost GBP 21,000.00 in damages and slightly over GBP 12,000.00 in costs. It is against this backdrop of harsh oppression that the law was finally modified to recognize the equality and dignity of the lives of gay citizens in the UK. Now, gay marriage is legal throughout the UK, at all levels, in all but name (mocking those “civil unions” in those US states that permit them). A gay man or woman may enter into a civil partnership with a citizen of another nation, and may sponsor that person into the UK in the same way that a man or woman may enter into a marriage with a citizen of another nation and sponsor that non-citizen into the country. The age of consent for gay sex is now the same as the age of consent for heterosexual sex (16).

Another important difference -- a difference that resonates throughout the broader culture -- lies in the fact that the UK Armed Forces no longer discriminate against gay servicemembers. Whereas it was once legal to discharge a member of the Armed Forces merely for being gay, servicemembers in the UK are now no longer subject to such naked discrimination. In September 1999, the European Court of Human Rights held that the ban on openly gay men and women serving in the UK Armed Forces was a clear-cut breach of the Human Rights Convention. This unanimous ruing, handed down by judges in Strasbourg, held that the ban violated the privacy rights of gay men and women who wished to serve in the UK Armed Forces. In 2000, the UK officially ended its ban on openly gay personnel from serving in th Armed Forces, and firmly asserted that servicemembers could no longer be discharged merely for being gay. It is important to bear in mind the fact that legal discrimination against gay men and lesbians in the Armed Forces can be "borrowed" to justify other forms of government-sponsored discrimination against gay men and lesbians, as Boushka has noted elsewhere (see "Do Ask, Do Tell").

It is indeed ironic that gay people have made so much progress in the UK, given the fact that the US was founded following a revolution in which the American colonies broke away from the UK in search of greater freedom. It is ironic in the extreme that gay sex in the US only became legal in all 50 states following the handing down, in 2003, of a US Supreme Court opinion (Lawrence v. Texas, 539 U.S. 558 (2003)) holding that state sodomy statutes violated the rights of gay Americans under the Due Process Clause of the Fourteenth Amendment (A.J. O’Connor’s concurrence relied not on the reach of the Due Process Clause, but on the protective ambit of the Fourteenth Amendment’s Equal Protection Clause to arrive at the same result). Just 17 years before Lawrence was handed down, the US Supreme Court mockingly dismissed a Due Process challenge to the Georgia sodomy statute filed by a man (Michael Hardwick) who had been arrested, but ultimately not prosecuted, for having oral sex with another man in the privacy of his own bedroom (see Bowers v. Hardwick, 478 U.S. 186 (1986)). The Court, in Bowers, made the infamous assertion that the privacy challenge (grounded in the Fourteenth Amendment's Due Process Clause) mounted by Hardwick in response to his arrest for consensual oral sex was “at best, facetious.” That ruling is now history -- the Lawrence Court went to considerable pains to acknowledge that it had erred in handing down Bowers, opining that "[i]ts continuance as precedent [Bowers] demeans the lives of homosexual persons...Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled."It is the fervent hope of this commentator that the overwhelming majority of the citizens of the US will, one day in the not too distant future, see their fellow gay Americans as equals, both before the bar of justice and in the eyes of broader society, just as the majority of the citizens of the US now reject the days of Jim Crow and have no desire to return to such a legally and morally destructive social order.

PHILIP CHANDLER