Defending Lambda Legal Defense.

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California attorney David Link, an IGF contributing author, emailed to support Lambda Legal Defense's brief in the Lawrence sodomy law case (after I had taken Lambda to task for citing Roe v. Wade as a precedent). David writes, in part:

Amicus briefs can (and should) be much more focused than the briefs of the parties, which have an obligation to address all the legal issues in the case. ... [T]he substantive due process issue is necessarily implicated if we want to have the court overturn Hardwick -- since it was based on substantive due process.... The court could distinguish Lawrence from Hardwick on equal protection grounds, leaving Hardwick standing, but applying to all sodomy laws as long as they treat all citizens equally irrespective of sexual orientation. That's one way to go.

But some think the better approach is to have the court overturn Hardwick entirely, and that requires addressing the question of constitutional privacy. (Unless, of course, the court were to strike off on some completely novel direction, like a more narrow focus on constitutional liberty, which, I think, is unlikely from this court). Thus, Lambda had a responsibility to brief the right to privacy, and that logically includes Roe. It would be possible to cite all the other privacy precedents, from Griswold v. Connecticut on, skipping over Roe, but that would be disingenuous. I think I'm safe in saying that the members of the US Supreme Court would probably be smart enough to notice the elephant that isn't in the room.

Well stated, but as a non-attorney court-watcher I still have doubts. I replied as follows:

It's been said that the majority in Hardwick delivered the opinion they wished they could have given to overturn Roe. If anything, Roe's reasoning is held to be even more suspect by the court majority today. So it sure seems like an extremely bad tactical move -- and really, for what end?

O"Connor and Kennedy may not want to unleash the furies by overturning Roe, but they certainly hold its reasoning in disdain and don't want to grant Roe any added credibility. And the response from Thomas, who some felt was reachable with limited-government-intrusion arguments (as in the Institute for Justice amicus brief, which argues for overturning Hardwick without staking a claim to the elusive "privacy right") would be likely to react even more negatively. So from this layman's perspective, it was a firecracker that shouldn't have been tossed.

I realize the folks at Lambda are extremely dedicated and hardworking. But their staff attorneys, with only a few exceptions, are from the liberal to left side of the spectrum, as they too often demonstrate. Wooing the center-right justices should have been the obvious goal, but one that may have clashed with their cultural milieu (i.e., NARAL and pals), so I stand by my criticism.

By the way, Lambda Legal Defense's website now includes its brief as well as all supporting amicus briefs.

To tell the truth, I couldn't bear to read what the National Gay and Lesbian Task Force, National Center for Lesbian Rights, Human Rights Campaign, People for the American Way, Puerto Rican Legal Defense and Education Fund, AFL-CIO, and other activists on the liberal left had to say to the court, but I doubt they've presented arguments that might effectively convince conservative justices to find sodomy laws unconstitutional. Far more likely, they"ve compiled legal theorizing that's anathema to the center-right swing votes on the court, but red meat to their own members and donors.
--Stephen H. Miller

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Homosexuality and Morality, Part 5: Retaining the Moral High Ground

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OVER THE LAST MONTH I've been exploring various attempts to show that homosexuality is morally wrong. Not surprisingly, I've concluded that these anti-gay arguments don't hold much water.

At this point in the debate opponents usually try to change the subject. "Oh yeah?" they say. "Well what about incest or bestiality?"

The proper response to this so-called argument is an incredulous stare. "Excuse me," you should say politely but firmly, "but I have no absolutely idea what the hell you're talking about. For I was talking about homosexuality, and now you are talking about incest, and I don't see what one thing has to do with the other. You might as well ask me about tax fraud or nuclear proliferation - equally irrelevant topics to the issue at hand."

Many gay-rights opponents seem to think of the "What about incest?" argument as a kind of trump card. Their idea is that if one accepts homosexuality, one gives up on the idea of drawing moral lines altogether.

Nonsense. Gay people, like everyone else, can make judgments about which kinds of relationships are conducive to human well-being and which aren't. Besides, unless one assumes from the outset that homosexuality is immoral, there is no more reason to group incest with homosexuality than with heterosexuality: after all, there is far more heterosexual incest than homosexual incest.

Why, then, do critics continue to press this objection? Perhaps it's because accepting homosexuality requires them to give up their favorite argument: it's wrong because we've always been taught that it's wrong. This "argument from tradition" has an appealing simplicity. It is easier to accept the status quo than to make fine-grained, well-reasoned distinctions between those sexual acts which contribute to human well-being and those that do not.

But easier is not always better. And in this case, the cost of simplicity is too high: it involves denying fulfilling relationships to gay and lesbian people without any better reason than "that's how we've always done things." This is moral complacency, and it deserves not merely to be rejected but to be harshly condemned. If one is going to condemn people for the loving, affectionate relationships in their lives, one had damn well have a better reason than that. The same reason was once used to oppose interracial relationships: it was a lousy reason then and it's a lousy reason now.

The so-called moral case against us is in fact deeply immoral. There's something rather perverse about condemning people because of whom they love. And the effects of such condemnation - the pain and suffering and fear, the talent and energy wasted by the devastating oppression of the closet - are a far greater moral tragedy than consensual sex could ever be.

Please remember this: morality is not the exclusive domain of our opponents. Exhausted by the mistaken moralizing of Dr. Laura, Jerry Falwell, Pat Robertson, and the like, gays and lesbians are sometimes tempted to reject the practice of moralizing altogether. And then we start to believe the fallacy that "Morality is strictly a private matter."

This is a serious mistake. Whatever morality is, it is not "strictly private." It's about how we treat one another. It's about fairness and justice. It's about what matters most to us - not just as a personal preference, but as a standard for public behavior.

The problem with our opponents is not that they make moral judgments. Everyone makes moral judgments, and those who think they don't are either confused or depraved. The problem with our opponents is that their moral condemnations of homosexuality lack good grounds. Insofar as this mistake involves misinformation or confused reasoning, it is a logical error. Insofar as it involves indifference to the experience of gays and lesbians, it is a moral one. It is high time we stood up and identified it as such.

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Lone Star Hate

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AS A NATIVE TEXAN, I know good and well why Texas has an anti-gay sodomy law - the one now being challenged in the Supreme Court. It's not because the state wants to protect the grand traditions of our moral heritage passed down from millennia of human experience and teaching, as Texas is now claiming before the Supreme Court.

That's just window-dressing for the real reason. It's an attempt to make the law look respectable, to divert attention away from what's really going on in Texas and in other states that have anti-gay sodomy laws.

No, the real reason legislators keep their anti-gay sodomy laws is simple: they just hate "queers." They have a sodomy law criminalizing gay people to express that gut reaction. But passing laws to express hatred against a group of people is unconstitutional.

How do we know the Texas law is an expression of hatred?

Here are five reasons we know the Texas sodomy law is infected with unconstitutional "animus" - simple spite against a group of people. (Disclosure: The discussion below is based on a Supreme Court brief I helped write for the Republican Unity Coalition urging the Texas law be held unconstitutional.)

First, sodomy laws historically prohibited anal (and later oral) sex for both heterosexual and homosexual couples. Traditional morality, which objected to all non-procreative sex, condemned sodomy for all persons regardless of the sex of their partners. No state had any objection to homosexual conduct as a category unto itself until 1969 when Kansas became the first state to adopt a law targeted solely at gays. The Texas anti-sodomy law itself applied to both heterosexual and homosexual sex until the law was changed to target only gays in 1973.

Texas thus offers a novel moral regime whereby conduct once condemned is now legally acceptable, but only for the political majority, while the identical conduct is prohibited only for the political minority. By taking the uniform historical prohibitions on sodomy and abolishing them for all but the small political minority of gay couples, Texas betrays an animus toward gay couples rather than a concern for preserving "traditional" morality.

Second, in the recent past, objections to homosexuality have been based on a variety of now-discredited harm-based concerns thought to justify repression. For example, those seeking to restrict or punish gays have variously asserted that homosexuality is a sickness, that it is chosen or changeable, and that it could be discouraged or stamped out by repressive laws. Gays also were tarred as child molesters.

These and other myths have been debunked. Indeed, even Texas no longer pretends that there is any material harm to homosexual conduct or that its law can alter the incidence of homosexuality, but instead asserts only a moral interest conveniently immune from empirical falsification. The collapse of excuse after excuse for discriminating against gays and the recent manufacture of a novel, selective, and non-falsifiable "moral" claim indicates a lingering animus likely born of the old substantive libels against gays.

Third, even as it targeted gay sex alone for the first time in 1973, Texas also legalized bestiality. A Texan may have sex in private with an animal or an opposite-sex partner he met ten minutes ago, and the law will take no heed. But let a Texan have sex with even a committed same-sex human partner, and the criminal law cries foul. Whatever morality Texas purports to protect with that regime, it is not traditional sexual morality.

The message sent by the patchwork of Texas sex laws is that gay citizens are less worthy of a life of physical intimacy than are animals and those who molest them. If that is not an expression of animus against a class of persons, nothing is.

Fourth, like other states, Texas rarely prosecutes people for actual violation of its sodomy law. This suggests the state has a minor concern at best with the conduct at issue. The primary practical use of the statute seems to be to justify discrimination against gays in unrelated contexts, like employment or marriage.

The infrequency of the direct enforcement of the law against specific conduct combined with its invocation to deny gays equal treatment in areas unrelated to the prohibited conduct reflect animus toward gays as a class rather than a moral disapproval for specific sexual practices.

Fifth, the broad and harsh consequences of the law, combined with the fact that these consequences fall solely on gay people, suggest animus. If he obeys the sodomy law, the gay citizen, and the gay citizen alone, must forever forego a life of intimacy. However, if he disobeys the law, the gay citizen flouts the criminal code and must live with the knowledge and fear that, in the eyes of the state, he is but an as-yet-undiscovered criminal.

And, if convicted of disobeying the law, he then faces a daunting series of obstacles throughout his life. He must, for example, reveal his conviction on applications for public and private employment. Evidence of his criminal conviction may be used against him in a child custody dispute. In some places he must register as a sex offender. The list goes on.

Sweeping and fundamental are the consequences of this law to gay persons and to gay persons alone. If it is not a tool to deny gays a life of physical affection with another human being, it is a sword hanging over our heads threatening us with discrimination in obtaining life's necessities.

While morality has its place in law, hatred has none.

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Repeated Mistakes?

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The defense brief filed by the Lambda Legal Defense and Education Fund, as counsel in Lawrence v. Texas (the anti-sodomy law case now before the U.S. Supreme Court) is online. While I haven't studied the brief in detail, I"m extremely disappointed to see that Roe v. Wade was cited in three instances as a precedent. No, it's not the heart of Lambda's argument, but it's certainly sure to rankle the conservatives.

Sixteen years ago in Bowers v. Hardwick, a sodomy law case not argued by Lambda (as I previously misstated), a Supreme Court whose majority no longer considered Roe's "privacy rights" argument to be persuasive voted to uphold sodomy laws. Roe's stature has only declined since. Citing it is something you"d expect of liberal attorneys who would rather uphold the pro-abortion party line than try to win over the swing conservatives. As described below, let's hope the amicus briefs filed by the Cato Institute, the Institute for Justice, the Liberty Education Forum, and the Republican Unity Coalition can undo some of the damage.

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Arguing Lawrence v. Texas

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The Lawrence case now before the U.S. Supreme Court focuses on the constitutionality of the Texas Homosexual Conduct Law -- which criminalizes consensual same-sex sodomy, even when conducted in the privacy of one's home. Amicus briefs have now been filed, and the Court will hear oral arguments on the sodomy case (find the joke) on March 26.

A brief filed by the libertarian Cato Institute argues that the Texas statute violates the three main provisions of the 14th amendment: the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause:

"By singling out only homosexual sodomy," said Roger Pilon, Cato's vice president for legal affairs, "the Texas law is in clear violation of the Equal Protection Clause. But our brief goes further in asking the Court to overturn Bowers v. Hardwick, the 1986 decision that upheld, under the Due Process Clause, a Georgia statute that criminalized homosexual conduct. That decision is flatly inconsistent with the Court's due process decision a decade later in Romer v. Evans."

As an alternative, Cato's brief also asks the Court to revisit the long-ignored Privileges or Immunities Clause, which was meant by the framers of the 14th Amendment to be the principal safeguard for liberty against state actions. "The time has come," said Pilon, "to revive the first principles of the 14th Amendment.

The Institute for Justice, a highly regarded libertarian public interest law firm, also filed an amicus brief, arguing the law exceeds any legitimate government power. Bob Freedman, an attorney with the Institute, said:

"Every major political theorist agrees that there must be limits on the government's power. Our Founders believed that individuals should be largely free to pursue their own lives without government intervention. This law runs counter to our entire philosophical and constitutional tradition."

These briefs, and those filed separately by the Republican Unity Coalition and by the Liberty Education Forum (not yet available online), make arguments designed to appeal to Justices to the right of center -- the swing votes needed to win the case. Briefs arguing along more traditional liberal lines, premised on the abortion decision in Roe v. Wade that is anathema to these very Justices, were filed by liberal groups.

Judging the Judge.

President Bush has renominated Mississippi Judge Charles Pickering to the 5th Circuit Court of Appeals. The Human Rights Campaign, the big Washington-based lesbigay lobby, has joined with the National Organization for Women and other liberal activist groups in strongly opposing the re-nomination. "Pickering's career has been punctuated by racial divisiveness, and he also has publicly shared anti-gay sentiments," says HRC.

But last March, when Pickering was originally nominated, the Log Cabin Republicans issued a pro-Pickering statement noting that:

In 1991, Pickering sharply rebuked an attorney who tried to use a plaintiff's homosexuality in a fraud trial. "Homosexuals are as much entitled to be protected from fraud as any other human beings," Pickering instructed the jury. "The fact that the alleged victims in this case are homosexuals shall not affect your verdict in any way whatsoever."

In 1994, an anti-gay citizens group in the town of Ovett, Mississippi launched a crusade of intimidation and threats to drive out Camp Sister Spirit, a lesbian community being built by a lesbian couple. When the group took Camp Sister Spirit to court, Judge Pickering threw their case out. This case was featured in Judge Pickering's testimony before the Senate Judiciary Committee.

Aruged LCR's then-head Rich Tafel:

"I have spoken with Judge Pickering at length, and have reviewed his record and consulted with several people around the country. Judge Pickering reiterated to me his strong belief that all Americans should be treated equally under the law, including gay and lesbian Americans, and his record as a federal judge clearly demonstrates it."

One suspects that because Judge Picking is not a liberal jurist favoring expansive government, HRC has concluded he's a racist homophobe.

Sullivan on Rustin.

If you didn't see it, last week's Time magazine had a nice piece by Andrew Sullivan titled The Invisible Man, on the legacy of the late civil rights activist Bayard Rustin, the openly gay organizer of the famous 1963 civil rights March on Washington (wherein Dr. Martin Luther King proclaimed his dream of a society where individuals would "not be judged by the color of their skin but by the content of their character"). That's a thought to consider as the constitutionality of government-decreed race-based preferences comes back before the Supreme Court.
--Stephen H. Miller

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Holiday in Red.

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Henry Scott, a former publisher of Out magazine, takes strong exception to a Cuban excursion being organized by New York's Empire State Pride Agenda (ESPA). Scott's piece is titled Cuba Libre? Guess Again and runs in the current issue of Gay City News. He describes an ESPA flyer announcing the trip, which reads: "We thought it would be nice to get out of the city, especially now that it's so cold. Somewhere exciting and warm, somewhere unusual and exotic, not too far" We decided to go to Cuba!" Responds Scott:

Perhaps [the] visitors from ESPA will turn up information about gay freedom in that nation that has eluded the diligent investigators of Amnesty International and Human Rights Watch. Maybe they'll even be inspired to put down their Cohibas and Cuba Libres and risk a night in a squalid Havana prison by making a public stand for lesbian and gay civil liberties on the Malecon. But what's more likely is that the group's winter break on the beaches of this oppressed black and Latin nation will feed the perception that ESPA stands for "Empire State Party Agenda." "

On the other hand, maybe ESPA will see the myopia in believing its responsibility to promote lesbian and gay civil liberties ends at the borders of the Empire State. A public announcement that it is canceling the Cuba trip, with an explanation why, would go a long way to restoring the pride in the Empire State Pride Agenda.

For its part, ESPA claims it will be reaching out to Cuban gays during the trip. While that could be positive, it would be more effective if ESPA and other gay activist groups took a firmer stand against communism and the suffering it brings to all who must live under its totalitarian yoke.

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Here Comes the Neighborhood.

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More on how gay cachet can revitalize deteriorating neighborhoods -- and possibly cities, via the Boston Globe (but about Detroit and its 'burbs):

Since the riots of 1967, Detroit has tried several strategies to revitalize its downtown, including riverfront development and a new mass transit system. City leaders continue to hope that General Motors' move downtown in 1996 will bolster the city's comeback.

Now, some leaders are hoping that an influx of gay residents will help revitalize Detroit. Though the idea is buttressed by a growing body of research, the notion comes as a surprise, given the city's often prickly relationship with the gay community.

Don't tell the anti-gentrifiers!
--Stephen H. Miller

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Unintended Consequences?

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Employers demonstrate a tendency not to grant interviews to applicants with black-sounding names, as compared with equally qualified applicants with white-sounding names, according to a new survey. Researchers sent out some 5,000 bogus resumes for both hypothetical "white" named and "black" named applicants in response to newspaper ads in Boston and Chicago. The result: Resumes with white-sounding names elicited 50% more responses than ones with black-sounding names.

It's clear that discrimination lives, but it's also worth asking if something else is afoot. African-American employees, as members of a protected class under the civil rights laws, can threaten to bring racial discrimination suits if they are fired or not promoted. Whether a suit is groundless or not, business insurers almost always urge employers to settle out of court since legal costs are so exorbitant (and negative publicity is best avoided, in any event).

Given this situation, many employers have come to believe that, all things being equal, it's best not to hire more minority applicants than is necessary to avoid scrutiny, or even grant unnecessary interviews (since if interviewed, but not hired, a premise for a civil rights suit has still been established). Employers will not speak publicly about this, but many, in private, more than hint this is the case.

Isn't this at least worth acknowledging as we debate the value of a national workplace anti-discrimination law making gays and lesbians a protected class? The proposed federal Employee Non-Discrimination Act (ENDA) is the prime goal of the big, national, gay political lobbies, and I"ve said before I believe its passage could send a strong, symbolic message of inclusion. But that doesn't mean we should ignore possible unintended, and negative, consequences in making employers hesitant about hiring openly gay applicants (especially since ENDA, unlike the civil rights laws protecting racial minorities, won't be buttressed by either affirmative action mandates or judicial decisions requiring gays to be hired at least in proportion to our numbers in the local population).

Asking such heretical questions doesn't make your typical lesbigay activist very happy, but a movement on auto-drive isn"t, ultimately, in anyone's best interest.

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What’s Changed Since Hardwick?

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First published January 15, 2003, in the Chicago Free Press.

THE SUPREME COURT indicated late last year that it would hear the case of "Lawrence and Garner v Texas" (hereafter "Lawrence"), the appeal by two Texas men arrested, briefly jailed and fined for violating a Texas law forbidding homosexual, but not heterosexual, sodomy.

In granting the hearing, the court seemed to be signaling that it was willing to reconsider its widely deplored 1986 "Bowers v Hardwick" decision upholding Georgia's more comprehensive sodomy law. Had the court wished to let Hardwick stand, it would simply have refused to hear Lawrence and Garner's appeal.

Since it takes votes from at least four justices to grant a hearing, that probably means at least four liberal justices (perhaps Stevens, Souter, Ginsburg, Breyer) think Hardwick was wrongly decided and are reasonably confident they can pick up one or more centrist votes (Kennedy or O'Connor) to overturn it.

A less optimistic view: The justices are well aware that two, possibly three of the oldest justices--including liberal John Paul Stevens and centrist Sandra Day O'Connor--may resign during the Bush presidency and are likely to be replaced by fairly conservative judges. So the liberals may feel that even if their chances of overturning Hardwick are far from certain, this term will be the last chance for many years.

So, will the court overturn Hardwick? The court can do almost anything the majority has a will to do and find ways to interpret precedents to support the decision. So the question might be: Does the court have a will to overturn Hardwick? But that may be the wrong question. The right question may be: Does a majority have a will to uphold Hardwick? It may not.

The Hardwick decision attracts little support. It has been vigorously criticized by many conservative and libertarian as well as liberal legal theorists. Harvard law professor Charles Fried, solicitor general during part of the Reagan administration (1985-89) wrote of Justice White's "stunningly harsh and dismissive opinion."

University of Chicago libertarian law professor (and Chief Judge of the 7th Circuit Court of Appeals) Richard Posner wrote that there was "a gratuitousness, an egregiousness, a cruelty, and a meanness" about the Georgia statute itself and argued its unconstitutionality.

And it is well-known that Justice Powell himself, who first voted to overturn Georgia's sodomy law then changed his mind and voted to uphold it, four years later admitted publicly, "I think I probably made a mistake in that one."

The Court hates to reverse earlier decisions, but it is fairly willing to change its mind. Its preferred method is to make some distinction between the older case and the newer one. With Lawrence the materials are available. Hardwick was argued on sexual privacy grounds. Since the Texas law applies only to gays, Lawrence can and will be argued largely on equal protection grounds: Texas denies gays as a class equal treatment under the law.

But more than that, the nation has changed since Hardwick. In 2003 we are now exactly as far beyond Hardwick as Hardwick was beyond Stonewall. Since 1986 the nation's understanding and acceptance of gays--and gay relationships--has greatly increased.

By 2003, far more gays and lesbians are openly gay--two, three, even four times as many as in 1986--and believe it is their moral right to be so. As a result, hardly any reasonably alert person can say, as the elderly Justice Powell claimed in 1986, that they have never known a homosexual. (Powell had had more than a half-dozen gay clerks but none was open with Powell.)

Nor are members of the court immune to a growing understanding and acceptance of gays. Greater exposure to gays may not force the justices to overturn Hardwick but it certainly can dilute the sort of ignorance and hostility that underlay White's decision and Burger's snide concurring opinion. And It may prompt justices to look harder for ways to overturn Hardwick.

Nor, of course, can the justices afford to be completely insensitive to shifts in public opinion if they are to retain respect for the Court and its decisions.

In 2003, the great majority of U.S. adults think sodomy laws should be abolished. While White's decision could note with satisfaction that sodomy laws were part of the American tradition and 24 states retained them in 1986, by 2003, only 13 states have sodomy laws. So sodomy laws are a rapidly waning part of the American tradition.

It is not without significance that in 1986 fears about AIDS had boosted support for sodomy laws to its highest point since the mid-1970s. But as AIDS became better understood and treatments became available, support for sodomy laws plummeted. In 1986, 53 percent of college freshmen favored sodomy laws, but by 2001 support fell to less than one-fourth (24.9).

Hardwick was widely viewed unfavorably in 1986. If the court rules similarly in 2003, the hostile reaction will be far more intense, widespread and sustained. It is hard to believe the Court would issue a decision that would find favor only among droolers.

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Bawer’s Latest.

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In an op-ed published in Monday's New York Times, IGF contributor Bruce ("A Place at the Table") Bawer has this to say about the closing of New York's famed Oscar Wilde Bookshop (1967-2003):

Today's young gay readers, viewing their homosexuality not as a perplexity or a tragedy, but as a matter-of-fact part of their identity, are less likely to need the affirmation and reassurance (and company) that specifically gay books once provided. Increasingly, they know who they are. They're happy with who they are. They think of themselves as a part of the larger world. They may love to read -- let's hope they do -- but the hole in the soul that places like the Oscar Wilde Bookshop once helped to fill is no longer there. And that's not a terrible thing.

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