On April 3, 2009, the Iowa Supreme Court handed down a unanimous decision (Varnum v. Brien, 07-1499) holding that the prohibition of gay marriage violated the equal protection guarantees of the Iowa State Constitution. This decision has been hailed as a model of clarity; the fact that it was also unanimous has gone a long way towards discrediting the notion that an “activist” court “found” a right to gay marriage that does not exist in the state constitution. In addition, the court held that gay persons comprise a “quasi-suspect” class for the purpose of state equal protection analysis, and that any law discriminating against gay persons much be subjected to “quasi-strict” scrutiny (or intermediate-level review). Quasi-strict scrutiny requires that any law impacting the group in question (in this case, gay persons) must be demonstrated, by the state, to be substantially related to an important government objective. This court followed the examples set by the state high courts of Massachusetts, California, and Connecticut in finding that the respective state constitutions prohibited the denial of marriage to gay couples (the California decision was reversed in November by a state constitutional amendment). Shortly after this decision was handed down, Vermont became the first state in the nation to legalize gay marriage as a result of legislative action (as opposed to prompting by a state high court); the state legislature of Vermont voted, overwhelmingly, to legalize gay marriage, overriding the Republican governor’s veto in the process. The states of Maine and New Hampshire are currently debating this issue, and it is clear to thinking persons that it is now only a matter of time before activists for marriage equality succeed in extending equal marriage rights to gay persons in other states. Other states where gay marriage is expected to be recognized in the near future include New York and New Mexico; New York governor Patterson has just introduced a bill that would legalize gay marriage in that state. In addition, the District Council in Washington, DC voted to recognize the validity of gay marriages entered into in those jurisdictions where gay marriage is legal; this means that a gay couple who marry in Connecticut will be recognized as married should they move to Washington, DC.

In response to this movement in the direction of marriage equality, those men and women who continue to argue that gay persons should not be permitted to marry have formed an organization named the “National Organization for Marriage” (a bizarre misnomer, given the fact that this organization’s remit is to prevent gay persons from marrying in those states where gay marriage is not yet recognized). Maggie Gallagher – a right-wing shill who has attacked gay marriage for many years now – sits as the President of this organization, which recently produced an advertisement named “The Gathering Storm”. This advertisement has been screened throughout New England (where gay rights activists are expending considerable energy in their campaign to legalize gay marriage), in the hope of swaying members of the public to pressure their elected representatives to vote against gay marriage.

What is remarkable about this advertisement is its comical, over-the-top, desperate atmosphere. Instead of presenting the viewers with a sober assessment of the state of gay marriage at the present time, this advertisement literally shows lightning strikes in the background and massive purple clouds brewing in the sky, as ham actors, pretending to be members of the public, talk about how “afraid” they are of gay marriage, and about how their personal and private lives have been ruined as a direct result of the legalization of gay marriage! This advertisement is actually funny – which it most certainly was not intended to be by those who produced it! Even more amusing is the fact that this advertisement cost about $1.5 million to produce! Those viewers who have seen this advertisement on YouTube (where it has been featured for several days now) overwhelmingly mock, belittle, and laugh at this production. A quick sampling of the comments posted on YouTube reveal that at least 80% of the comments ridicule and denigrate this advertisement – surely not something that Maggie Gallagher and her cohorts intended! As if this weren’t bad enough, numerous spoofs of this advertisement have been produced on YouTube – spoofs that have literally caused activists for marriage equality to roll around on the floor with laughter!

Frank Rich, writing in the New York Times, has pointed out that this advertisement represents the best and only effort of those who continue to oppose gay marriage; while Gallagher and her cronies try to attack gay couples with this inane joke, the mainstream media have pretty much ignored the developments in Iowa and Vermont, barely mentioning them in network newscasts. Those references to gay marriage that have been made by the mainstream media have largely been neutral, or even positive, in their description of these developments. A large number of actors have produced their own spoofs of “The Gathering Storm”, literally smothering this pathetic attempt at stoking the flames of bigotry and hatred with a blanket of cackling laughter.

What is truly amazing about this advertisement is the fact that the "National Organization for Marriage" paid such a massive sum of money to produce such a ludicrous and amusing spectacle.

Maggie, Maggie, what has become of you?

As Frank Rich pointed out, this is truly “The Bigots Last Hurrah”. Rich notes that support for gay marriage and opposition to gay marriage are both largely generational – and it is the older generation that opposes gay marriage. Population dynamics make it clear that the number of supporters will continue to rise, just as the number of opponents will continue to fall. Put bluntly, older people die, whereas younger people grow up and replace older people, carrying forward their more enlightened attitudes and convictions.

The movie “Searching for Bobby Fischer” contained a scene that is emblematic of the current state of gay marriage in the US. The protagonist, Joshua Waitzkin, plays against another child prodigy towards the end of the movie. Several moves deep into the game, Joshua’s opponent makes a fatal mistake, which is obvious only to those who possess sufficient knowledge and insight into the game to appreciate the nature of this player’s mistake. Joshua spots the mistake, and offers his opponent a draw, telling him “You’ve already lost. You just don’t know it yet.”

And so it is for the "National Organization for Marriage".

The game is over. All that remains to be seen is whether those who continue to oppose gay marriage will insist on dragging their defeat and humiliation out for as long as possible, or whether they will acknowledge that they are beaten, and climb on board. All signs now are that the more intelligent and well-connected members of the right (including ex Presidential hopeful John McCain’s chief strategist) have already seen the end coming, and have decided to climb on board.

PHILIP CHANDLER

When I last posted on a religious thread at www.virtueonline.org, my messages were deleted almost as fast as I could post them. This speaks volumes as to the willingness of David Virtue (the owner of this Web site) to entertain ideas that run contrary to his particular worldview. I maintain my own blog, and have never deleted a message posted by any reader, because I believe that the free flow of information and ideas is central to the concept of civilized debate and discussion. However, Virtue and his type employ the gag and the jackboot whenever anybody posts messages that challenge their viewpoints. I wonder how long this message will remain on his Web site before being deleted yet again.

One of the arguments made most frequently by homophobic bigots – particularly those who adduce their religious beliefs as justification for their special brand of hatred and obtuse morality – is that these people “love the sinner” whilst “hating the sin”. Given the depressing frequency with which this tired, trite, and hackneyed justification for cruelty, abuse, and moral condemnation is invoked, it is appropriate to examine the logical and semantic underpinnings behind this fallacious line of thinking.

Sexual orientation is not a matter of conscious moral choice, and it takes a special brand of wilful blindness to reach conclusions to the contrary. The American Psychiatric Association (APA) dropped homosexuality from the “Diagnostic and Statistical Manual of Mental Disorders” (DSM) back in 1973. This official position was later endorsed by the American Psychological Association, the Canadian Psychological Association, the Canadian Psychiatric Association, the American Medical Association, the World Health Organization, the American Academy of Pediatrics, the American Counselling Association, the American Association of School Administrators, the American Federation of Teachers, the American School Health Association, the Interfaith Alliance Foundation, the National Association of School Psychologists, the National Association of Social Workers, the National Education Association, and numerous other professional bodies. In response to this inconvenient truth, the hard right now asserts that the American Psychiatric Association was “forced” to drop homosexuality from the list of mental disorders by “militant homosexual activists” (I am always amazed to discover the full extent of the unbridled power that I possess, as a gay man). The cold truth remains that homosexuality was never reinstated as a mental disorder, notwithstanding the fact that the DSM has been revised and augmented extensively since the decision to declassify homosexuality as a mental disorder was made 36 years ago, and notwithstanding the efforts of a small but rabid minority of psychiatrists, psychologists, and other mental health professionals to remedicalize and recriminalize homosexuality.

Although some theologians and right-wing commentators maintain a distinction between homosexual sexual orientation and the physical expression of that orientation, this is, in the last analysis, a distinction without a practical difference. The so-called “sin” and the so-called “sinner” are inextricably intertwined; the so-called “sin” is a reflection of an aspect of personhood of the so-called “sinner” – entirely different from chosen preferences, such as a person’s taste in clothing, food, or automobiles. Although many black Americans decry and resent comparisons between race and sexual orientation, the fact that these people dislike the comparison in no way renders it logically unavailing. Blaming a gay person for that person’s expression of his or her identity is morally obtuse, and does violence to notions of substantive fairness. Prominent psychologists, psychiatrists, and mental health professionals have concluded, almost without exception, that most gay men and lesbians are as well-adjusted and as emotionally healthy as are most heterosexuals. To the extent that gay people suffer increased rates of depression (and other emotional disorders), these problems are in fact reflections of the appalling abuse, mistreatment, and hostility directed towards gay people by American society.

Telling a gay person that one “loves the sinner” whilst “hating the sin” is analogous to telling a black person that one loves that person but hates the fact that he or she is black. Another pertinent analogy that has been invoked by scientists in the field of psychological assessment involves laterality; just as about 10% of the male population is left-handed, about 10% of men are predominantly or exclusively homosexual. The data pertaining to lesbians are not as clear-cut; many researchers have concluded that female sexuality is less clearly differentiated than male sexuality, and that female human sexuality is more fluid and malleable than male human sexuality.

The term “sexual preference” is a misnomer, and should be avoided when discussing the rights of gay people; this term implies that gay people consciously and deliberately choose with whom to fall in love, and that gay people choose to have sexual and emotional relationships with members of the same sex.

What is particularly disgusting and depressing about the attitude of homophobes is their tendency to reduce the complexities of gay relationships to the sum of a number of sex acts. Gay people are no less capable than heterosexual people of feeling love and emotional attachment – yet homophobes utterly dismiss the expression of such emotions, emphasizing only the sexual aspect of gay relationships. The “Family Research Council” (FRC) is notorious for this tendency – some time ago, the FRC referred to Elizabeth Birch’s companion as her “sex partner” when commenting on the fact that Birch and her lover had adopted a child. This crude form of biological reductionism is both insulting and dehumanizing. The Nazis invoked precisely this technique in the early stages of the Holocaust, dismissing Jewish people (as well as gay people, Gypsies, and political prisoners) as “untermensche” (lower forms of human life). By adopting this paradigm, the Nazis found it easier to insult, abuse, and ultimately attempt to exterminate an entire class of persons. While the writer does not accuse homophobes of genocide (at the present time), it bears noting that no less a figure than Associate Justice Antonin Scalia – known for the contempt that he displays towards gay Americans – went so far as to complain about the homosexual “problem” in the State of Colorado (his dissent in Romer v. Evans, 517 U.S. 620 (1996) invoked the standard and all too well known stereotypes about gay people). Scalia launched into a vitriolic diatribe, the first sentence of which, through the choice of words employed, had many people wondering what could possibly have possessed him to allude (consciously or unconsciously) to the autobiography of a well-known German national, written several decades ago, in which the author described his kampf ("The Court has mistaken a Kulturkampf for a fit of spite....").  Scalia worked himself up into frenzy, accusing the Court of placing the prestige of that institution behind the proposition that "opposition to homosexuality is as reprehensible as racial or religious bias."  In passages eerily reminiscent of writings all too well known to this world, Scalia inveighed against the homosexual "problem" faced by the citizens of Colorado, noting that gay men and lesbians tended "to reside in disproportionate numbers in certain communities," where they possessed "political power much greater than their numbers, both locally and statewide."  He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay men and lesbians, and railed against the fact that gay men and lesbians "care about homosexual rights issues much more ardently than the public at large," claiming that the tendency on the part of gay Coloradans to invoke the democratic process more readily than their heterosexual counterparts constituted a distortion of the process in and of itself.  One wonders how it could have escaped Scalia's attention that, in a country where people vote their policy preferences into law under a "one man, one vote" system, members of any particular group of citizens can never possess "disproportionate" political power unless members of other groups of citizens choose to abdicate their own power.  One also wonders whether Scalia would ever care to apply a similar analysis to the behavior of fundamentalist Christians, who certainly care about their issues (e.g., forcing mandatory school prayer down the throats of the rest of us, outlawing reproductive freedom for women) "much more ardently than the public at large."  Perhaps one can be forgiven for harboring some degree of cynicism towards this analysis, given the selectivity of its application and the transparency of its logic.

Circuit Judge Stephen Reinhardt, sitting on the US Court of Appeals for the Ninth Circuit, eloquently exposed the false and discriminatory nature of the status versus conduct distinction as this distinction pertains to gay persons serving in the armed forces, in his dissent in Holmes v. California Army National Guard, 124 F.3d 1126 (1997). Reinhardt noted that:

“[…] the fact that conduct may be banned does not mean that speech may be also.  Certainly, an admission of prohibited conduct, although speech, is an admission of an offense and may serve as the basis for discipline.  However, admitting that one is homosexual is not admitting to an offense under the newly crafted and somewhat schizoid "Don't Ask, Don't Tell" policy.  For, under that policy, homosexual status – being a homosexual – is not an offense. To the contrary, the military now purports to welcome into the service individuals who are homosexuals – but only so long as they don't engage in homosexual conduct.  This might appropriately be analogized to welcoming Jews to be a part of society so long as they do not attend synagogue or pray publicly or privately to God. Nevertheless, it is the policy that the President and the Congress in their collective wisdom have agreed upon.

“The proponents of the status / conduct distinction seem to believe that classifications such as homosexual and heterosexual are based on something other than sexual conduct, perhaps one's taste in art, music, literature, dress, or the pursuit of a particular, if indefinable, "life-style."  This argument confuses cause and effect.  What makes a person a homosexual, or a heterosexual, is the abiding desire to engage in sexual conduct with persons of the same sex, or persons of the opposite sex.  It is no secret, even to federal judges, that the sexual drive is a strong one. Sex is the elementary form of human activity and expression, and it provides the basis for the most important of human relationships, rivaled only by that of parent and child. It also provides the basis for distinguishing homosexuals from heterosexuals.

“The complications regarding sexual preferences involve questions such as whether one is born with a particular orientation or acquires it, and whether one may constitutionally be forced to lead a sexless life in order to serve one's country as a member of the military.  Most persons are born with a particular sexual preference and in the vast majority of cases, it is heterosexual; a minority is born with homosexual preferences.  In some cases, it may not be so clear what one's preferences are; in some cases there may be ambivalence; in some a preference for both sexes; and in some a complete lack of interest in sexual conduct.  (The latter would appear to be the smallest group.)  But the idea that persons should be compelled to surrender entirely the right to engage in sexual conduct if they wish to serve in the armed forces would seem to me clearly to conflict with the Constitution and in particular with substantive due process.  Nevertheless, as I have acknowledged, that is not the current state of the law and I am bound to follow a view contrary to my own, pending a repudiation of Bowers by the Court or its issuance of an opinion construing Bowers to mean something other than what its authors intended.” [emphasis added]

(Fortunately, the obscene decision Bowers v. Hardwick, 478 U.S. 186 (1986) was explicitly and bluntly overruled by the US Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). This reflects a sea change in the manner in which the federal judiciary treats gay Americans; Bowers upheld anti-gay state “sodomy” statutes, which were challenged as being violative of the substantive component of the Fourteenth Amendment’s Due Process Clause. The Lawrence Court explicitly apologized to the gay community for the manner in which it had demeaned and insulted gay Americans in Bowers, acknowledging that it had framed the constitutional question far too narrowly. In overturning Bowers, the Court acknowledged that gay persons have every right to sexual privacy, and that the state has no business interfering with that right. The US Courts of Appeals for the First and Ninth Circuits recently analyzed Lawrence and concluded that the right to intimate sexual conduct between members of the same sex is afforded substantial constitutional protection, of a much higher order than that associated with traditional rational basis review.)

The lies told about gay people are particularly ugly. There is no truth whatsoever in the old canard that gay men were abused as little boys, or that overly dominant mothers are “responsible” for the sexual orientation of such men. These old “blame the mother” lies were bandied about up until the 1970s, when mental health professionals acknowledged that such theories were, for want of a better description, fanciful inventions. If overly protective mothers are responsible for male homosexuality, the percentage of the male population that is exclusively or predominantly gay would be much higher than current estimates (which range from 2% to 10%, depending on the manner in which homosexual orientation is defined and measured).

Social and cultural conservatives make much of the fact that the origins of homosexual sexual orientation have not yet been proved to have their roots in biology or genetics. Because no definitive proof has yet been adduced to the effect that homosexuality is biologically or genetically “hard-wired”, it must be assumed (according to this line of reasoning) that homosexuality is chosen. The logical fallacy undergirding such thinking disinvites comment. Many human characteristics that were once assumed to have no basis in biology or genetics (laterality is once again a good example) are now known to have a biological basis. The frontal lobes of the human brain mediate psychological and behavioural attributes such as creativity, impulse control, the exercise of moral judgment, and social interaction. The fact that this was neither known nor understood prior to the second half of the 20th century does not rob current understanding of brain organization of its legitimacy, just as the fact that penicillin was not known to have antibiotic properties prior to the second half of the 20th century does not rob current understanding of the antibiotic properties of this drug of its legitimacy. It is entirely possible, if not probable, that male homosexuality has a strong genetic component; the fact that this component has not yet been identified definitively does not foreclose the future identification of a genetic basis of this phenomenon.

Indeed, the research data that does exist strongly supports the hypothesis that male homosexuality has a genetic component. The most compelling evidence of this component exists in the form of twin studies; in such studies, the sexual orientation of identical twins are compared, and the concordance rates of homosexuality in cotwin pairs are contrasted with those of fraternal twins and non-twin siblings. Psychologists Bailey and Pillard (of Northwestern University, Illinois) conducted such a study in 1991, and concluded that the concordance rate for homosexuality in monozygotic cotwins was 52%, as opposed to 22% of dizygotic (fraternal) cotwins, and 11% in adoptive brothers. The concordance rate for nontwin siblings was only 9.2%. These highly respected researchers, known for their caution in interpreting such contentious data, concluded that “[h]eritabilities were substantial under a wide range of assumptions about the population base rate of homosexuality and ascertainment bias.” (In other words, they concluded that there is strong evidence that male homosexuality is at least in part genetically determined.) The results of this study were written up in the highly regarded, peer-reviewed journal “Archives of General Psychiatry” (March 1993). Bailey and Pillard then studied lesbian twins and siblings, and obtained similar (but not identical) results, further reinforcing their conclusions.

Even more dramatic results were obtained in a 1952 study by Franz Kallman, who reported that 100% of the identical twins in his study were concordant for homosexual sexual orientation (in other words, the identical twin of every gay subject in his study was also gay). Differences between the Kallman data and the Bailey and Pillard data may well have been artifacts relating to the manner in which homosexual sexual orientation was assessed across the two studies, or artifacts relating to the manner in which subjects were selected across these studies.

These two studies are by no means the only studies that have examined sexual orientation as a function of genetics. Bailey conducted a larger study involving 5,000 subjects selected from the Australian Twin Registry, and arrived at the same results. In short, strong evidence exists to support the theory that gay sexual orientation is at least partially genetic in its origins.

Homophobes who adduce their religious beliefs as justification for their abusive, cruel, and discriminatory attempts to deprive gay Americans of rights and privileges that they take for granted fly in the face of venerated constitutional principles such as the equal protection of the laws, and the wall of separation between church and state.

We do not live in a theocracy. We live in a constitutional democracy, in which the rights of minorities are protected by irrepealable constitutional law. Attempts to circumvent the law by making reference to religious dogma have no place in a society in which the liberty interests of all citizens are protected by such law. The US Supreme Court recognized this fundamental truth in Lawrence (supra), holding that “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom”.

Philip Chandler

Now the LDS has the effrontery – the unmitigated gall – to call upon the gay community for "healing" and “respect” following passage of Proposition 8 in California. Hell will freeze over before this happens.

Consider the following:

On May 15, 2008, the California Supreme Court handed down its decision in in re Marriage Cases, S147999. The court refused to stay its decision until the November 2008 elections, and this decision took effect on June 16, 2008. In this decision, the state high court held that all classifications on the basis of sexual orientation are "suspect," and mandated that gay persons be able to marry their spouses on the same terms as applies to heterosexual persons. Tens of thousands of gay couples obtained marriage licenses and were married before the elections of November 4, 2008. Because California has no residency requirement for marriage, and does not require that marriages performed in California be valid in the home states of non-residents, many couples travelled to California to exchange and solemnize their vows. Proposition 8 was enacted by a narrow margin of about 52% to 48%, and has the effect of overriding the state high court’s decision, thus prohibiting the recognition of gay marriages in the State of California.

California continues to offer “domestic partnerships” to gay couples; these partnerships are similar to “civil unions” offered by states such as Vermont and New Jersey, and grant to same-sex couples all of the state-level rights and privileges of marriage, in areas such as inheritance, insurance, state income tax, hospital visitation rights, etc.

Neither gay marriages nor domestic partnerships offer to gay couples the roughly 1,138 rights and benefits afforded heterosexual married couples under federal law, due to the restrictions on gay marriage imposed by the so-called “Defense of Marriage Act” (DOMA) of 1996. This measure prohibits the treatment of gay relationships as marriages for any purpose by the US federal government, even if such relationships are concluded or recognized as marriages by one or more of the states.

Some explanation of legal concepts is required in order to understand the meaning of the state high court’s determination.

Ordinarily, a statute that creates a classification (e.g., a statute that creates different classes of people, such as a statute that defines and provides for the punishment of murderers) enjoys the presumption of constitutionality. This is so because we live in a constitutional democracy. The courts generally accept the proposition that even improvident decisions will eventually be rectified by the democratic process. However, some forms of discrimination are so invidious and so destructive that any statute that creates classifications of this type (so-called “suspect” classifications) is subjected to "strict scrutiny." Strict scrutiny turns the presumption of constitutionality on its head – under this standard of review, a statute is presumed to be unconstitutional until the state proves, beyond a reasonable doubt, that the statute is not unconstitutional. Statutes that create racial classifications are the most well known statutes that proceed along suspect lines. It is widely recognized and understood that race is a characteristic that bears no relationship to the ability of people to contribute to society. Furthermore, racial minorities have been subjected to a long history of purposeful discrimination, and racial minorities have suffered a history of relative political powerlessness. This discrimination is triggered by a characteristic that is “immutable” (a person’s race cannot be changed).

Not all suspect classes involve “immutable” characteristics. The US Supreme Court recognizes four classifications that are suspect – race, alienage, national origin, and religion. Clearly, religion is not immutable; people can and do convert from one religion to another. Alienage is also a characteristic that can be changed; a resident alien can become a US citizen, and under some circumstances, a US citizen may surrender his or her citizenship and become an alien. Any classification that proceeds along suspect lines is presumed to be unconstitutional; when the state defends a statute that proceeds along suspect lines or that infringes on a “fundamental” constitutional right, the burden falls on the state to prove that such statutes serve a "compelling state interest" and that such statutes are "narrowly tailored" so as to promote that interest in the “least restrictive” manner possible (in terms of infringing on the rights of the group in question). Stated differently, the statute must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote the interest in question. The California Supreme Court recognizes additional suspect classes – sex has long been considered by the California state courts to be a suspect classification, and in handing down in re Marriage Cases, supra, the state supreme court held that classifications on the basis of sexual orientation are also suspect. Furthermore, any statute that infringes a "fundamental right" is automatically subjected to strict scrutiny, regardless of whether the group impacted by the statute in question is considered to be a suspect class. For example, a statute that infringes on First Amendment rights is a statute that infringes on a fundamental right; it will be subjected to strict scrutiny regardless of whether or not the group impacted by the statute in question comprises a suspect class (see Chicago v. Morales, 527 U.S. 41 (1999), in which case the US Supreme Court invalidated Chicago’s “Gang Congregation Ordinance,” declaring this ordinance to be facially unconstitutional).

(A state supreme court, interpreting a state constitution, can grant to its citizens rights over and above the rights recognized in federal equal protection jurisprudence; this is a bedrock principle in our system of judicial federalism. Thus, although the US Supreme Court has been very reluctant to expand the number of classifications considered to be suspect, many state supreme courts have adduced additional suspect classes. The California Supreme Court, for example, considers sex to be a suspect classification, whereas the US Supreme Court still considers sex to be only a "quasi-suspect" classification. Under California case law, a statute will only survive strict scrutiny if the state proves that the statute promotes a compelling state interest and is necessary for the promotion of that state interest. A quasi-suspect classification is subjected to a slightly less demanding standard of review than strict scrutiny, referred to as "quasi-strict scrutiny." Under this standard of judicial review, the burden is again placed on the state, which must prove that the statute in question promotes an important state interest and is substantially related to the promotion of that interest. In Frontiero v. Richardson, 411 U.S. 677 (1973), the US Supreme Court articulated this standard of review as applied to statutes that classify on the basis of sex. The Court reformulated this standard of review in United States v. Virginia, 518 U.S. 515 (1996), holding that classifications on the basis of sex can only be sustained in the presence of an "exceedingly persuasive justification.”)

The California Supreme Court became the second state appellate court to conclude that classifications on the basis of sexual orientation are suspect (the Hawaii Supreme Court declared such classifications to be suspect in Baehr v. Miike, 87 Haw. 34, 950 P.2d 1234 (1997), noting that the framers of the state constitution in 1978 had expressly intended that a proscription against sexual orientation discrimination be subsumed under the textual proscription against discrimination on the basis of sex). The California Supreme Court is perhaps the most influential of the state high courts, and this court’s holding that sexual orientation is a suspect classification was not overturned by Proposition 8.

In finding that the California state constitution grants to gay persons the same right to marry as that which is enjoyed by heterosexuals, the court held 1) that sexual orientation is a suspect classification, and 2) that marriage is a fundamental right. Sexual orientation bears no relationship to the ability of persons to contribute to society. Furthermore, gay persons have suffered a history of invidious discrimination based on their sexual orientation, and it is beyond doubt that sexual orientation is either immutable, or changeable only at unacceptable personal cost to members of the class in question. Notwithstanding the ugly and impassioned rant of US Supreme Court Justice Antonin Scalia in his dissent in Romer v. Evans, 517 U.S. 620 (1996) (in which dissent Scalia inveighed against the homosexual “problem” in the State of Colorado, asserting that gay persons possess “political power much greater than their numbers, both locally and statewide” and that gay persons possess “enormous influence in American media and politics”), gay persons are also relatively politically powerless. There are only two openly gay members of Congress; there has never been an openly gay person serving in a cabinet-level position; there has never been an openly gay person sitting on the US Supreme Court or on any of the US Courts of Appeals; and passage of Proposition 8 reveals, chillingly, that even with the support of Hollywood celebrities such as Brad Pitt, Angelina Jolie, and Steven Spielberg, gay persons cannot protect even a right so basic as their right to marry in what many analysts consider to be the most liberal state in the country.

Proposition 8 therefore serves to strip a suspect class of a fundamental right – something that is utterly impermissible under both due process jurisprudence and equal protection jurisprudence. It is bad enough that Proposition 8 strips an identifiable group of a fundamental right; here, the constitutional infirmity is compounded by the fact that the group so deprived also constitutes a suspect class. Regardless of the emotions involved, and regardless of whether or not jurists accept the morality of gay marriage, it is crucial to bear in mind at all times that, from a legal standpoint, Proposition 8 is no different from a measure that selectively withdraws the right to marry from black people only, or from Catholics only. Were any measures to be passed that strip the right to marry from either of these groups, there would quite understandably be widespread public outrage.

Any attempt to enforce Proposition 8 must be, and will be, met with unwavering resistance by the gay and lesbian community, both in California and across the nation. This measure will not be permitted to become law without vigorous opposition. At the time of writing, the mayor of San Francisco continues to issue marriage licenses to gay couples who wish to marry. The state Attorney General, Jerry Brown, insists that existing gay marriages will remain legal, but that no further gay marriages can take place in California (until Proposition 8 is overturned). Three lawsuits have already been filed in California state court, seeking a writ of mandate to enjoin enforcement of Proposition 8 and to instruct the state to continue to issue marriage licenses to gay couples until a full trial on the merits can be held to determine whether or not Proposition 8 is constitutional. These lawsuits assert that Proposition 8 works a profound change to the state constitution, striking at the heart of the equal protection provisions mandated by that constitution; if such a change is to be countenanced at all, it must be undertaken pursuant to the more deliberative constitutional revision process articulated in Article VXIII of the state constitution, which requires more than a mere majority of votes and which requires ratification by the state legislature. The brief submitted by the petitioners seeking a writ of mandate from the California Supreme Court is analytically brilliant, and the writer is hopeful that this brief will succeed in convincing the California Supreme Court that Proposition 8 was enacted in violation of Article XVIII of the California state constitution.

The chief argument raised by the petitioners is that Proposition 8 works a change to the California constitution so fundamental as to require the more deliberative approach specified by Article XVIII. Specifically, Proposition 8 deprives one, and only one, class of Californians of a right deemed by the courts to be "fundamental." Furthermore, Proposition 8 proceeds along facially suspect lines. In short, Proposition 8 attempts to deprive a suspect class of a fundamental right, in violation of the underlying principles of due process and equality enshrined in the California state constitution. If left to stand, the amendment of the state constitution by Proposition 8 could be followed by subsequent amendments to the state constitution withdrawing additional fundamental rights from a suspect class in piecemeal fashion – turning the principle of equal protection on its head. The petitioners cited Pastor Niemoller's famous quote: "In Germany, they first came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me – and by that time no one was left to speak up." If left to stand, Proposition 8 would make it possible for other fundamental rights to be withdrawn from gay persons, or from members of any other group identified along suspect lines.

By eliminating the requirement of equal protection from such a minority, Proposition 8 would remove an essential structural check on the exercise of majoritarian power. Had Proposition 8 sought to ban all marriages in the State of California, principles of equal protection would not have been offended; however, the selective identification of a group along suspect lines, followed by the withdrawal from that group of a fundamental right, is inconsistent with the constitution's mandate of equal protection. The petitioners cited Romer v. Evans, supra (in which the US Supreme Court invalidated a Colorado state constitutional amendment singling out gay persons and depriving them of protection from discrimination at all levels, in both the public and the private sectors) as authority for their position. When Romer was handed down in 1996, gay persons had not been identified as a suspect class by any state or federal appellate court; now, gay persons are considered to be a suspect class as a matter of law in the States of California and Hawaii. (Gay persons are considered to be a quasi-suspect class by the Connecticut Supreme Court, which handed down a decision legalizing gay marriage in that state on October 28, 2008 (Kerrigan v. Commissioner of Public Health, SC17716).)

Constitutional amendments imply "...an addition or changes within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed." This cannot be said of Proposition 8, which strikes at the heart of equal protection and which, if allowed to stand, would strip the state courts of their crucial role in preserving the rights of disfavored minorities. Changing the bedrock foundations of the state constitution must be done through the revision process, not the amendment process. In previous cases where the California Supreme Court has affirmed the modification of the constitution through the amendment process at the ballot, the substance of these amendments has never targeted a suspect class, or attempted to withdraw from that class a fundamental right. There is a profound difference between a measure intended to deprive all Californians of the right to marriage, and a measure intended to deprive only Catholics or Muslims of the right to marriage. Sexual orientation has been placed on the same plane as race and religion for the purposes of state equal protection analysis, rendering the deprivation of the right to marry from this group analogous to the deprivation of the right to marry from only Catholics, or only Muslims.

It is the responsibility of the judiciary to enforce such principles as equal protection of the laws. The importance of the courts, in terms of their role in enforcing such principles, cannot be overstated. Proposition 8 would strike at heart of the courts' ability to exercise their essential constitutional authority to protect minorities from overreaching by majorities. While the legislature may, under some circumstances, eliminate a right for all Californians, it may not deprive a particular disfavored group, and only that particular group, of a fundamental right. Furthermore, Proposition 8 would also strike at the separation of powers doctrine, which requires that the courts employ heightened scrutiny under such circumstances.

The key analogy drawn by the plaintiffs demonstrates just how pernicious this measure would be were it to be allowed to operate. Substitute black persons for gay persons, and you would again have a measure that infringes a fundamental constitutional right and that proceeds along suspect lines. Such a measure would never be permitted to take effect following the constitutional amendment procedure; if allowed to take effect at all (which is highly improbable), it could only do so following the deliberative process involved in a constitutional revision. For the purposes of illustration, this analogy is flawless. Both sex and race are suspect classes in California state constitutional jurisprudence, and the withdrawal of marriage from black persons is analogous to the withdrawal of marriage from gay persons. Classifications premised on sexual orientation are suspect, just as classifications premised on race are suspect. There is no hierarchy of suspectness; a suspect class is a suspect class. Thus, Proposition 8 is as offensive as would be a similar measure that singled out black people and prevented them from marrying. To take effect, such a measure would have to flow from the deliberative process associated with constitutional revisions, not from the simple majoritarian vote required for constitutional amendments (even then, such a measure would almost certainly run afoul of equal protection considerations).

If one such measure, eliminating a fundamental right as enjoyed by a suspect class, is permitted to stand, then additional measures that strip away fundamental rights from this class must necessarily be permitted to stand. This would lead the state down the road identified by Pastor Niemoller in his prescient and poetic observation.

Granting the writ of mandate would not have a deleterious impact on the status quo; to the contrary, it would permit the continued enjoyment of the right to marry by both gay and heterosexual couples. The state would suffer no irreparable harm should the court grant the writ. Heterosexual couples would remain free to marry should the court grant the writ.

Conversely, failure to issue the writ would work irreparable harm on gay couples seeking marriage licenses.

It is unfortunate that this issue has been tossed back to the state supreme court. Should the court agree that the amendment violates the procedure established by Article XVIII for constitutional revisions, we can expect loud and indignant braying from religious and social conservatives, and we will doubtless have to suffer outraged, sputtering accusations alleging interference with "the will of the people." What these persons fail to grasp is the fact that it is the duty of the courts to protect suspect classes with special vigilance.

Should the court grant the writ, we will almost certainly prevail should the hard right attempt to ram this change through by using the constitutional revision process (which requires approval by a supermajority of the state legislature before the matter can proceed). This is therefore a crucial legal battle.

The LDS pumped literally millions of dollars into the State of California in support of Proposition 8. Leaders of the LDS now call upon the gay community to begin the healing process. The audacity of this demand is beyond belief. This religious sect reached out and tampered with the fundamental right of gay persons to marry in another state – now, this religious sect calls upon the victims of this political meddling to make peace with those who worked this injustice on the gay community and inscribed naked discrimination into the highest law of the state.

Some members of the LDS refer to gay people as "sore losers." The irony here is that the Mormons have been the target of invidious discrimination on several fronts (including marriage) in their history. Now they stand front and center in their attack on a group of law-abiding citizens who have done absolutely nothing to harm them – and they call on members of this group to accept this result and to "begin the healing process." I do not speak for the entire gay community – but I know that I speak for a sizeable number of gay persons when I tell leaders of this religion that we will be back, just two years from now, with another ballot initiative to restore the right to marry to gay Californians. There is precious little room in my heart for healing or forgiveness. I will not roll over and accept such shabby treatment from any religious sect that does not appreciate and abide by the concept of separation of church and state.

Already, gay rights groups are calling for a boycott of Utah. This state’s tourism industry, and the star-studded Sundance Film Festival, are being targeted for a boycott by bloggers, gay rights activists, and others seeking to punish the Mormon Church for its aggressive promotion of California's ban on gay marriage. Tourism brings in six billion dollars annually, with world-class skiing, a spectacular red rock country, and the film festival founded by Robert Redford, among other popular tourist venues. The LDS encouraged its members to press for the passage of Proposition 8 by volunteering both time and money for the campaign. Thousands of Mormons worked as grass-roots volunteers, bringing in a total of almost 20 million dollars. Polls show that Proposition 8 was failing until the Mormons stepped in with their money and political clout. Outspoken blogger and gay rights activist, John Aravosis, did not mince words with the following declaration: “"The main focus is going to be going after the Utah brand. At this point, honestly, we're going to destroy the Utah brand. It is a hate state."

This may sound like an idle, or impotent, threat – but Aravosis is known for leading a successful and dramatic campaign against Dr. Laura Schlessinger’s TV show following her intemperate and ugly comments about gay Americans, and against Ford and Microsoft for their positions on gay rights. The Los Angeles Gay and Lesbian Center has mounted an effort to overturn Proposition 8, sending a postcard to the Mormon church president with each contribution made. Aravosis considers California to be the victim, and the Mormons to be the persecutors. Protests and rallies continue to take place in California, notwithstanding passage of the amendment; many gay activists insist that demonstrations will continue until Proposition 8 is overturned.

“We had won this until they swept in. ... We need to send a message to Utah that they need to stop trying to inflict their way of life on every other state,” Aravosis asserts.

To Aravosis – long life, and success!

Philip Chandler

In reaching the conclusion that the prohibition of gay marriage violated the equal protection clause, the state supreme court held that gay men and lesbians constitute a "quasi-suspect class" for the purposes of equal protection analysis. The court followed principles outlined in a landmark case (State v. Geisler, 222 Con. 672, 685, 610 A.2d 1225 (1992)) to construe the contours of the state constitution, examining 1) the text of the constitutional provisions at issue, 2) holdings and dicta of the State Supreme Court and of the Appellate Court, 3) persuasive and relevant federal precedent, 4) persuasive and relevant sister state court decisions, 5) the history of the operative constitutional provisions, including debates of the framers, and 6) contemporary economic and sociological considerations.

The term “suspect class” is employed by jurists to describe classes of persons entitled to a heightened level of protection when challenging a statute (or other form of legislative enactment) or executive policy on constitutional grounds. The Fourteenth Amendment was enacted in the wake of the Civil War; this Amendment was crafted shortly after the Civil War ended (thus abolishing slavery in the southern states). Section 1 of the Fourteenth Amendment includes three Clauses: the Due Process Clause, the Equal Protection Clause, and the Privileges or Immunities Clause. The Equal Protection Clause mandates that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” The framers of the Equal Protection Clause wished to stamp out the invidious forms of racial discrimination that remained following the abolition of slavery; this context must be considered when adjudicating challenges to legislation on equal protection grounds. The Connecticut state constitution contains a similar guarantee, codified at article first, Section 1 (“All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”) and at article first, Section 20 (as amended by article 5 and article 21) (“No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”).

In federal constitutional jurisprudence, the gravamen of an equal protection challenge almost always lies in the assertion that two groups of people who are similarly situated in relation to the challenged legislation are treated differently, with resultant adverse impact to members of one of the groups in question (see Heller v. Doe, 509 U.S. 312 (1993)). In the majority of cases dealing with social and economic legislation, the federal courts apply the “rational basis” standard of review. With the exception of statutes that infringe on “fundamental” constitutional rights, and statutes that create “suspect” or “quasi-suspect” classifications, statutes generally enjoy the presumption of constitutionality (a statute is presumed to be constitutional until it is proved to be unconstitutional beyond a reasonable doubt (State v. McKenzie-Adams, 281 Con. 486, 500, 915 A.2d 822 (2007))). The rational basis standard of review is consistent with the presumption of constitutionality. When this standard is applied, the burden falls squarely on the plaintiff, who must demonstrate that the statute in question is not rationally related to a legitimate state interest. This standard of review has been referred to as a “paradigm of judicial restraint” (see FCC v. Beach Communications, Inc., 508 U.S. 307 (1993)) due to its highly deferential nature. Provided the state can posit a rational relationship to a legitimate state interest, the statute will be sustained in the face of constitutional attack. The reviewing court can reach out, independently, and posit even post hoc justifications for the challenged statute.

This standard of review is not completely toothless, however. In City of Cleburne, Texas v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), the Court struck down the City Council’s refusal to issue a “special use” permit to a home for mentally retarded, holding that there was no rational basis for requiring this permit, and noting that the City Council’s requirement of a “special use” permit appeared to rest on “irrational prejudice” against the mentally retarded.

In United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), the Court struck down a prohibition against granting food stamps to any household containing an individual who is unrelated to any other household member. In this decision, the Court held that “a bare…desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

In Romer v. Evans, 517 U.S. 620 (1996), the US Supreme Court struck down an amendment (“Amendment 2”) to the Colorado state constitution that “fenced out” gay men and lesbians, and withdrew from this class of persons, and this class of persons alone, the right to petition the state legislature for redress of grievances (Amendment 2 repealed existing anti-discrimination ordinances to the extent that they protected gay people from discrimination at the hands of heterosexual people, and forbad the future enactment of any such measures). Although the Court employed language typically associated with traditional rational basis review, a three-judge panel of the US Court of Appeals for the Ninth Circuit recently noted that the Court appeared to have applied a higher standard of review (see Witt v. Department of the Air Force, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Several prominent jurists have made the same observation. Regardless of the level of scrutiny actually employed, the Romer Court cited Moreno with approval, holding that Amendment 2 was so broad in its scope as to give rise, inevitably, to the inference that this measure was intended to reflect “animus” towards gay persons. The Court reiterated its holding that a bare desire to inflict harm upon members of a politically unpopular group can never constitute a legitimate state interest, striking down Amendment 2 with strong and stark language.

The Connecticut Supreme Court first determined, as a matter of law, that “civil unions” (which were created by the state legislature in 2005) are not the legal equivalent of marriages, holding that this statutory arrangement singled out gay relationships and implicitly relegated them to an inferior status, “in essence, declaring them to be unworthy of the institution of marriage.”   Gay activists have repeatedly maintained that this is indeed so – while civil unions may grant to gay couples all of the substantive benefits and protections of heterosexual marriage, “the message is that what same-sex couples have is not as important as or as significant as “real” marriage, that such lesser relationships cannot have the name of marriage.” The court agreed with the plaintiffs that “[m]aintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.” The court compared civil unions to the “separate but equal” doctrine that animated the education of black versus white schoolchildren prior to the US Supreme Court’s landmark decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), and rejected the contention that civil unions are the constitutional equivalent of marriage (whilst recognizing the “truly laudable” efforts of the state legislature to grant gay couples the substantive rights of marriage).

The court then articulated a precept that is fundamental to our system of judicial federalism – that it is “beyond debate that federal constitutional law…establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” In short, the US Constitution sets a floor, but not a ceiling, to the exercise of individual rights; many state constitutions are more generous, either by their terms or as construed by state high courts, than the US Constitution in terms of affording their respective citizens the exercise of individual rights. The court referenced several cases in which the Connecticut constitution has been interpreted as being more generous than the US Constitution in terms of granting Connecticut citizens individual rights (e.g., State v. Morales, 232 Conn. 707, 716, 657 A.2d 585 (1995); Ramos v. Vernon, 254 Conn. 799, 827, 761 A.2d 705 (2000)). The court made it clear that in the light of this principle, there may be times when the court will employ the same analytical approach as that adopted by the federal courts, but yield entirely different results. Furthermore, in tones that would cause jurists such as US Supreme Court Associate Justices Antonin Scalia and Clarence Thomas to suffer from dyspepsia and apoplexy, the court held that “[it] must interpret the [state] constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may lose its original meaning” [emphasis added] and that the state constitution is “…intended to endure for ages to come…and, consequently, to be adapted to the various crises of human affairs” (cited from McCulloch v. Maryland, 17 U.S. 316 (1819)). The court expanded on this, holding that “the Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of [its] citizens” (cited from State v. Dukes, 209 Conn. 98, 114-15, 547 A.2d 10 (1988)).

The Connecticut Supreme Court first concluded that gay persons in committed relationships who wished to marry are “similarly situated” to heterosexual persons in committed relationships who wished to marry, thereby granting gay persons the requisite standing to mount an equal protection challenge to the prohibition of gay marriages. In a footnote that captured the essence of the constitutional challenge (see footnote 15), the court asserted that “[its members] know that people of the same sex often love one another with the same passion as people of different sexes do and that they want as much as heterosexuals to have the benefits and experience of the married state. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives” (cited from R. Dworkin, “Three Questions for America,” N.Y. Review of Books, September 21, 2006, pp. 24, 30).

Having established that gay couples may mount a cognizable equal protection challenge to the prohibition of gay marriages, the court discussed the standard of review that should be applied to the challenged legislation. As mentioned above, statutes that neither burden a “fundamental” constitutional right nor draw “suspect” classifications will be sustained, provided the state (or the reviewing court) posits a legitimate state interest and provided the legislation in question is rationally related to the promotion of that interest. However, any statute that draws a “suspect” classification, or that infringes on a “fundamental” right, will be subjected to “strict scrutiny.”

Strict scrutiny is a much more searching level of judicial review than rational basis review. When a reviewing court subjects challenged legislation to strict scrutiny, the presumption of constitutionality ceases to exist; in fact, the statute in question is presumed to be unconstitutional until and unless the state proves, beyond a reasonable doubt, that the legislation in question is not unconstitutional. The burden shifts from the plaintiff to the state, which has to prove that the statute in question promotes a “compelling state interest,” and that the statute in question is “narrowly tailored” so as to promote that interest in the least restrictive manner possible (insofar as the statute burdens the suspect class or infringes on a fundamental right). That is to say, the statute in question must promote a compelling state interest, and must sweep no more broadly than is absolutely necessary to promote the compelling state interest. This standard of review stands in stark contrast to the deferential rational basis standard, and it is therefore crucial to limit application of this standard to those circumstances which are consonant with the intent of the framers of the respective constitutions. Some constitutional scholars take an extreme position, and argue that this standard of review should only be applied (in equal protection challenges) when the legislation creates a racial classification. While this position is consistent with the observation that the Equal Protection Clause of the Fourteenth Amendment was framed in the aftermath of the Civil War, it should always be kept in mind that the framers of this Clause made it clear that they intended this Clause to afford protection to other minorities too. Furthermore, the text of the Equal Protection Clause contains no limitation; this Clause affords the equal protection of the laws to all persons (no state “shall deny to any person within its jurisdiction the equal protection of the laws” [emphasis added]).

The US Supreme Court has recognized three suspect classifications – race, national origin, and alienage (Heller, supra). It is important to note that the manner in which equal protection challenges are adjudicated (including the standards of review that are applicable) is not prescribed by the US Constitution, and that the US Constitution does not specifically identify suspect classifications or suspect classes (a suspect class is the class drawn by a suspect classification). The Connecticut constitution, on the other hand, identifies eight inherently suspect classifications set forth in article first, Section 20 (as amended) (religion, race, color, ancestry, national origin, sex, physical disability, and mental disability). Because members of these classes have been deemed to be “especially subject to discrimination,” their rights “are protected by requiring encroachment on [those] rights to pass a strict scrutiny test.”

In addition to the rational basis standard and the strict scrutiny standard, the US Supreme Court has recognized the existence of an intermediate level of scrutiny that lies between the extremes of rational basis review and strict scrutiny (see Clark v. Jeter, 486 U.S. 456 (1988)). This standard of review, referred to as “quasi-strict scrutiny” or “intermediate level scrutiny,” has been reserved by the US Supreme Court for classifications on the basis of sex and classifications on the basis of illegitimacy. Such classifications are referred to as “quasi-suspect” classifications. Such classifications may be sustained only if the state demonstrates that the challenged legislation promotes an important state interest and is substantially related to the promotion of that interest (see Frontiero v. Richardson, 411 U.S. 677 (1973)). More recently, the US Supreme Court reformulated this standard of review by holding that, in the context of gender discrimination, the classification may only be sustained in the face of an “exceedingly persuasive justification” (see United States v. Virginia, 518 U.S. 515 (1996)). The Court further held that the justification in question “must be genuine, not hypothesized or invented post hoc in response to litigation…and it must not rely upon overbroad generalizations about the different talents, capacities, or preferences of males and females.” Under quasi-strict scrutiny, the burden again falls on the state to demonstrate that the legislation in question meets these criteria.

The state argued that because article first, section 20 (as amended) of the state constitution expressly prohibits discrimination against eight enumerated classes, and because sexual orientation is not one of the eight enumerated classes, no other group is entitled to heightened protection under the equal protection provisions of the state constitution. The court rejected this assertion, because it is inconsistent with case law in which the court has expressed approval of the three-tiered methodology traditionally employed for the purposes of the equal protection provisions of the state constitution (e.g., Carofano v. Bridgeport, 196 Conn. 623, 495 A.2d 1011 (1985); Keogh v. Bridgeport, 187 Conn. 53, 66-67, 444 A.2d 225 (1982)). The court also held that, although the omission of sexual orientation from the list of classifications enumerated by article first, section 20 (as amended) is a relevant consideration, it is not dispositive of the issue. The court reflected on the history surrounding the adoption of this section of the state constitution, noting that its drafters intended that provision to embody “the very strongest human rights principle that this convention can put forth to the people of Connecticut,” and concluding that, in accordance with that purpose, that provision should be read expansively. The court emphatically rejected the proposition that the language of the constitution limited new rights, noting that “rights of individuals have developed and have changed from time to time” (citing from remarks of former US Representative Chase Going Woodhouse). The court also asserted that, even if it were to assume, arguendo, that the groups enumerated in article first, section 20 (as amended) were intended to constitute an exhaustive list of suspect classes, the plaintiffs would not be barred from recognition as a quasi-suspect class, because these two classes are distinct and separate from one another. Of great significance was the observation that, under the state’s view, “only those classes that have marshalled the political will and popular support to secure a constitutional amendment in their favor” would be recognized as a suspect class – a result totally inconsistent with the rationale underlying both state and federal equal protection considerations.

The court then turned to an examination of the criteria that must be considered in determining whether recognition as a quasi-suspect class is warranted. The court noted that the US Supreme Court has consistently identified two factors that must be met, for the purpose of the federal constitution, in determining whether recognition as a quasi-suspect class is warranted. These factors are 1) the group has suffered a history of invidious discrimination, and 2) the characteristics that distinguish the group’s members must bear “no relation to their ability to perform or contribute to society” (see United States v. Virginia, supra; Frontiero v. Richardson, supra; Massachusetts Board of Retirement v. Murgia, 427 U.S. 327 (1976)). The US Supreme Court has also cited two other factors that may, on a case by case basis, be relevant to determining whether statutory provisions pertaining to a particular group are subject to heightened scrutiny. These additional two considerations are 1) the characteristic that defines the members of the class as a discrete group must be immutable or otherwise not within their control; and 2) the group is a minority, or is politically powerless (see Lyng v. Castillo, 477 U.S. 635 (1986); Bowen v. Gilliard, 483 U.S. 587 (1987)).

The state court noted that both state and federal courts have generally applied the same criteria to determine whether a classification is suspect, quasi-suspect, or neither. The court concluded that the factors that determine whether a group should be accorded heightened scrutiny under the federal constitution closely correlate with the factors that determine whether a group should be accorded heightened scrutiny for the purposes of the state constitution. The court noted that the US Supreme Court has placed far greater weight on the first two factors (a history of discrimination based on a characteristic that bears no relation to the ability of members of the group to contribute to society) than on the remaining two factors. For this reason, classifications on the basis of race and sex have been accorded strict scrutiny and quasi-strict scrutiny respectively, whereas classifications on the basis of age and disability have not been accorded heightened scrutiny (the latter characteristics frequently bear upon the ability of members of the class to contribute to society). The US Supreme Court has granted suspect class status to a group whose distinguishing characteristic is not immutable (resident aliens can become citizens, but are nevertheless considered to be a suspect class (see Nyquist v. Mauclet, 432 U.S. 1 (1977))), as well as to a group that is not a minority (women are actually a numerical majority in the US, but are nevertheless considered to be a quasi-suspect class). In addition, political power is not a characteristic that lends itself readily to objective assessment, making it extremely difficult for an appellate court to determine the extent of the political power of a group.

The court held that the test of whether a group deserves suspect class status is too exacting to test whether a group deserves quasi-suspect class status; the factors that are weighed when determining whether a group should be accorded suspect class status should not be weighted to the same extent when determining whether a group should be accorded quasi-suspect class status. Nevertheless, the factors are similar in both instances. 

The court then turned to a crucial threshold examination – whether, as a matter of law, gay persons should be considered to be members of a quasi-suspect class. The court noted that “[g]ay persons have been subjected to and stigmatized by a long history of purposeful and invidious discrimination that continues to manifest itself in society.”   The court also noted that “the characteristic that defines the members of this group – attraction to persons of the same sex – bears no logical relationship to their ability to perform in society, either in familial relations or otherwise as productive citizens.” Turning to the issue of immutability, the court held that “[b]ecause sexual orientation is such an essential component of personhood, even if there is some possibility that a person’s sexual preference can be altered, it would be wholly unacceptable for the state to require anyone to do so.” The court noted that gay people are certainly a minority, and that gay people have suffered “the enduring effects of centuries of legally sanctioned discrimination.” On this basis, the court held that laws singling gay people out for disparate treatment should be subjected to heightened judicial scrutiny.

The court employed strong language and citations from numerous sources to make the point that gay persons have been tormented, abused, terrorized, and grossly mistreated, both by fellow citizens and by the state itself, agreeing with the assertion that “[o]utside of racial and religious minorities, we can think of no group that has suffered such pernicious and sustained hostility…as homosexuals” (cited from In re Marriage Cases, 43 Cal. 4th 841 (2008)). Significantly, the court adduced Bowers v. Hardwick, 478 U.S. 186 (1986) as an example of pernicious and invasive hostility directed towards gay persons less than 25 years ago by no less an entity than the US Supreme Court   Referring to the existence of sodomy statutes in 25 states at the time that Bowers was handed down, and 14 states by the time Bowers was expressly overruled by Lawrence v. Texas, 539 U.S. 558 (2003), the court held that it was beyond cavil that gay persons, as a group, met the requirement of a lengthy history of past (and ongoing) discrimination. The state made no effort to rebut this assertion, agreeing with it from the outset.

The state also agreed with the assertion that being gay in no way impairs the ability of individuals to contribute to society – an assertion vehemently protested by organizations such as the “American Family Association” (AFA) and the “Family Research Council” (FRC). The court again cited from numerous sources to make the point that gay persons are able to perform in, participate in, and contribute to society on the same terms as heterosexuals. Observing that the suspect classes of race, national origin, and alienage “are so seldom relevant to the achievement of any state interest that laws grounded on such considerations are deemed to reflect prejudice and antipathy,” the court held that this observation is no less applicable to gay persons.

The court regarded as “highly significant” a number of important public policy considerations that treat gay persons similarly to heterosexual persons. For example, both gay and heterosexual persons are deemed to be capable of raising children, and may adopt children on the same terms. Discrimination on the basis of sexual orientation in employment, housing, state hiring practices, state licensing practices, the administration of state educational and vocational programs, state-administered benefit programs, and access to places of public accommodations is prohibited by state law. This reinforces the contention that gay persons are as capable of contributing to society as are heterosexual persons.

The court then addressed the issue of whether sexual orientation is an “immutable” characteristic, and concluded that other courts in other jurisdictions had reached contrary conclusions with respect to this issue. The Connecticut Supreme Court concluded that sexual orientation is highly resistant to change, but further held that it was unnecessary to determine whether sexual orientation is an immutable characteristic to the same extent and degree that race, national origin, and gender are immutable characteristics, because even if sexual orientation is not immutable, the plaintiffs had established that they satisfied this consideration. The US Supreme Court has recognized that, because “the protected right of homosexual adults to engage in intimate, sexual conduct…[represents] an integral part of human freedom” (Lawrence, supra at pp. 576-7), individual decisions by consenting adults concerning the intricacies of their physical relationships are entitled to constitutional protection. The court observed that sexual orientation is central to personality and is an integral part of one’s identity, rendering it entirely inappropriate to require a person to change, or repudiate, his or her sexual orientation in order to avoid discriminatory treatment. More specifically, the court held that gay persons are characterized by a “central, defining trait of personhood, which may be altered [if at all] only at the expense of significant damage to the individual’s sense of self” (cited from Jantz v. Muci, 759 F.Sup. 1543, 1548 (D. Kan. 1991)) (holding that “to discriminate against individuals who accept their given sexual orientation and refuse to alter that orientation to conform to societal norms does significant violence to a central and defining character of those individuals.”). Under this rubric, gay persons are no less entitled to consideration as a suspect or quasi-suspect class than any other group that has been deemed to exhibit an immutable characteristic.

Continuing the inquiry (whether or not gay persons comprise a quasi-suspect or suspect class), the court examined the relative political power of gay persons, noting that a lack of political power is one of the indicia traditionally associated with suspect or quasi-suspect classes. In cases involving groups seeking heightened protection under the federal Equal Protection Clause, the US Supreme Court described this factor without reference to the minority status of the subject group, focusing instead on the group’s lack of political power (see, e.g., Massachusetts Board of Retirement v. Murgia, supra). In its most recent formulation of this test, the US Supreme Court has indicated that this factor is satisfied upon a showing either that the group is a minority or that it lacks political power (see Bowen v. Gilliard, supra). This test involves a determination of whether the group in question is a “discrete and insular minority,” (United States v. Carolene Products Co., 304 U.S. 144 (1938)) or, if it is not a numerical minority, whether the group nonetheless is lacking in political power (see, e.g., Frontiero, supra, holding that women are a quasi-suspect class, notwithstanding the fact that women are not a minority).

Gay persons unquestionably comprise a distinct minority of the population. Consequently, they satisfy the first prong of this disjunctive test and may thus be deemed to satisfy this prong of the suspectness inquiry on that basis alone. Ironically, opponents of granting equal rights to gay persons (in spheres as diverse as marriage equality, employment non-discrimination, and equal access to enrolment in the armed forces) frequently draw attention to studies that purport to show that gay persons comprise a ridiculously small minority (figures of less than one percent have been circulated by opponents of gay equality in an effort to marginalize the gay community and to portray the gay community as extremely small); in so doing, these opponents actually lend support to the classification of gay persons as a quasi-suspect or suspect class.

The state argued that gay people should not be accorded suspect or quasi-suspect class status because they are not politically powerless. Because other courts have applied this component of the suspectness inquiry to deny gay persons heightened protection, despite the fact that they represent a minority of the population, the state supreme court considered this argument.

The US Supreme Court has never defined “political powerlessness” as it is used in this context; in most cases, the US Supreme Court has merely made passing reference to this factor without actually analyzing it (see, e.g., Bowen v. Gilliard, supra). This factor has been described as “ill-defined” because of the lack of objective criteria and the reality that the extent to which a group lacks political power is not easy to ascertain.

The state court looked to the US Supreme Courts quasi-suspectness jurisprudence for guidance. In Frontiero, supra, the US Supreme Court noted that sex is an immutable characteristic that frequently bears no relationship to ability to perform or contribute to society. Although significant advances had been made towards gender equality, “women still faced pervasive, although at times more subtle, discrimination in our educational institutions, in the job market, and perhaps most conspicuously, in the political arena” (Id., 686). The Court noted that Title VII of the Civil Rights Act of 1964 prohibited employers, labor unions, etc. from discriminating on the basis of sex, race, color, religion, or national origin. The Equal Pay Act of 1963 similarly provided that employers may not discriminate between employees on the basis of sex. Furthermore, section 1 of the Equal Rights Amendment (ERA), passed by Congress on March 22, 1972, and submitted to the state legislatures for ratification, declared that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The Frontiero Court held that, “when viewed in the abstract, women do not constitute a small and powerless minority.” Nevertheless, women were “vastly underrepresented in this nation’s decisionmaking councils.” Although women reasonably could not be described as politically powerless in the literal sense of that term, the court nevertheless concluded that women were entitled to enhanced judicial protection because the discrimination to which they had been historically been subjected was irrational and unlikely to be eliminated solely by the enactment of remedial legislation. Thus, heightened scrutiny of sex-based classifications was warranted because such classifications “are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy…and because such discrimination is unlikely to be soon rectified by legislative means” (emphasis added) (Cleburne, supra).

The state court noted that women continued to make significant political progress in the years following the US Supreme Court’s decision in Frontiero. Nevertheless, the contemporary US Supreme Court continues to apply heightened scrutiny to statutory classifications based on sex. Similarly, although racial and ethnic minorities have made significant political gains since they were first accorded treatment as a suspect class, courts continue to apply strict scrutiny to statutes that classify on such bases (e.g., Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. ___ (2007)). Classifications based on race or on sex do not become any less suspect or quasi-suspect, respectively, once extensive legislation has been passed on the subjects. The Connecticut Supreme Court cited from Chief Judge Judith Kaye’s brilliant dissent in Hernandez v. Robles, 7 N.Y.3d 388—89 (2006), in which she noted that “[s]uch measures acknowledge – rather than mark the end of – a history of purposeful discrimination…”

The political powerlessness aspect of the suspectness or quasi-suspectness inquiry does not require a showing that the group seeking recognition as a protected class is, in fact, without political power. Women today have much more political power than was the case in 1972, yet they continue to receive heightened protection under the Equal Protection Clause of the Fourteenth Amendment. The Connecticut Supreme Court held that the term “political powerlessness” is clearly a misnomer – this facet of the suspectness inquiry is applied not to ascertain whether a group that has suffered invidious discrimination borne of prejudice or bigotry is devoid of political power, but rather to ascertain whether the group lacks sufficient political strength to bring about a prompt end to the prejudice and discrimination through traditional political means. Thus, a group satisfied the political powerlessness factor if it demonstrates that, because of the pervasive and sustained discrimination that its members have suffered, there is a risk that the discrimination will not be rectified, sooner rather than later, merely by invoking the political process. The state court applied this standard to gay persons, and readily concluded that gay persons are entitled to heightened protection despite some recent political progress.

The state court noted that gay people have been the target of particularly vicious, long standing, and deeply rooted prejudice, both statewide and nationwide. The US Supreme Court itself – the entity that is supposed to vindicate the rights of minorities by applying the relevant standards of review – engaged in an act of naked cruelty in Bowers v. Hardwick, supra (permitting the states to criminalize the private, consensual behaviour of gay persons, even in the bedrooms of their own homes; the majority opinion was written in tones of sneering contempt directed towards gay persons). When Bowers was handed down, 25 states had laws on their books that criminalized gay sex, even in private settings between consenting adults; some of these statutes provided for the incarceration of gay persons for many years. Fortunately, Bowers was directly and bluntly overruled by Lawrence v. Texas, 539 U.S. 558 (2003), in which decision the Court implicitly apologized to gay persons for demeaning the claim that they put forward in Bowers, acknowledging 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.” When Lawrence was handed down, 14 states still criminalized gay sex, even in private settings between consenting adults. Gay persons were deemed to be mentally ill until 1973, when the American Psychiatric Association (APA) officially removed homosexuality from the “Diagnostic and Statistical Manual of Mental Disorders” (DSM). The state court noted that “[i]t is impossible to overestimate the stigma that attaches in such circumstances.” In Lawrence, the US Supreme Court noted that “[w]hen homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It should also be borne in mind that three Justices dissented in Lawrence, signing a vitriolic and angry dissent penned by Justice Antonin Scalia. Scalia also wrote the dissent in Romer v. Evans, 517 U.S. 620 (supra); this dissent, in particular, was laced with examples of naked stereotypes, crude generalizations, and rank bigotry. Scalia inveighed against the homosexual “problem” faced by citizens of the State of Colorado, noting that gay persons tended “to reside in disproportionate numbers in certain communities,” where they possessed "political power much greater than their numbers, both locally and statewide." He expressed outrage at the "enormous influence in American media and politics" enjoyed by gay persons, and railed against the fact that gay persons "care about homosexual rights issues much more ardently than the public at large." In essence, Scalia complained about the fact that gay persons availed themselves of the political process; he complained about the fact that gay persons actually voted on issues of significance to the gay community. When did it become undesirable, as a matter of civic hygiene, for groups of citizens to vote on issues that impact their welfare? Scalia’s analysis was deeply flawed – in any political system in which persons have the right to vote their policy preferences into law on a “one man, one vote” basis, it is literally impossible for any group to possess “disproportionate” political power. The only circumstance under which one group can exercise “disproportionate” power is if members of other groups abdicate their own political power (e.g., by not voting). Furthermore, Scalia has never complained that fundamentalist Christians “care about [issues such as mandatory school prayer, outlawing reproductive choice for women, withdrawing sexual orientation anti-discrimination statutes, etc.] much more ardently than the public at large.” This is a disgraceful form of bigotry that has no place in a US Supreme Court decision.

The state court also noted that mainstream religion reflected antipathy towards gay persons, adducing a brief filed by the Becket Fund for Religious Liberty. It is indeed ironic that the groups that call for gay marriage to be prohibited on religious grounds have actually strengthened the case for granting gay persons quasi-suspect class status. Beyond moral disapproval, the court noted that gay people are the target of “virulent homophobia that rests on nothing more than feelings of revulsion toward gay persons and the intimate sexual conduct with which they are associated.” The court adduced the prevalence of hate crimes as another factor militating in favor of granting quasi-suspect class status to gay persons, noting that the hatred and bigotry directed towards gay persons is akin to the type of hatred and bigotry directed towards racial and ethnic minorities, which are accorded suspect class status by the state and federal courts.

The court then noted that no openly gay person has ever been appointed to US Cabinet position or a federal appeals court, or served in the US Senate. Currently, only two openly gay people serve in the US House of Representatives. No openly gay person heads a Fortune 500 company, and it has been estimated that there are only 14 openly gay college and university presidents or chancellors (representing only one half of one percent of such positions nationally). No gay person has been elected to a statewide position in Connecticut, or ever been appointed to the Connecticut Appellate Court or the Connecticut Supreme Court, and only one gay person sits as a judge of the Superior Court. Women, by contrast, enjoy much greater representation in positions of power (the state’s current governor, comptroller, and secretary of state are all women, as are the current Chief Justice and two Associate Justices of the state high court). By any standards, gay persons “remain an underclass in our [state and] nation” (cited from Andersen v. King County, 158 Wash.2d 1, 105 n.78, 138 P.3d, 963 (2006). Although the legislature has taken steps to protect gay persons from discrimination, even the state’s anti-discrimination statute contains a disclaimer stating that the statute should not be “deemed or construed 1) to mean the State of Connecticut condones homosexuality or bisexuality or any equivalent lifestyle, 2) to authorize the promotion of homosexuality or bisexuality in educational institutions or require the teaching in educational institutions of homosexuality or bisexuality as an acceptable lifestyle, 3) to authorize or permit the use of numerical goals or quotas…4) to authorize the recognition of or the right of marriage between persons of the same sex, or 5) to establish sexual orientation as a specific and separate cultural classification in society.” As a matter of state policy, gay relationships are thus disfavored (“the purposeful description of homosexuality as a “lifestyle” not condoned by the state stigmatizes gay persons and equates their identity with conduct that is disfavored by the state”). The court also noted the decade of rancorous, failed attempts to pass the non-discrimination statute, and the fact that this statute was only passed after a “compromise” was struck that resulted in, inter alia, this unprecedented disclaimer being included in the statute.

Finally in the suspectness inquiry, the court noted that the US Supreme Court has held that the enactment of anti-discrimination measures prohibiting discrimination on the basis of sex is a factor supporting the conclusion that the subject group (women) is in need of heightened constitutional protection (see Frontiero v. Richardson, supra). Again excerpting from Chief Judge Kaye’s dissent in Robles, the court noted that “[s]uch measures acknowledge – rather than mark the end of – a history of purposeful discrimination” (see Hernandez v. Robles, supra).

The combination of all of these factors led the court to conclude that gay persons in the State of Connecticut currently command less political power than did women in 1973, when Frontiero was handed down, and that gay persons were thus deserving of quasi-suspect classification. The court also remarked that the state had offered no justification for applying a different standard to gay persons under the state constitution than the Frontiero court applied to women under the US Constitution. Again, the court pointed out that the existence of laws prohibiting discrimination on the basis of race and sex has not led the US Supreme Court to withdraw strict scrutiny and quasi-strict scrutiny to laws that classify on these bases, respectively. The court spent considerable time comparing the current status of gay persons with the status of women when Frontiero was handed down; despite the fat that the ERA was considered to be extremely likely to pass, the Frontiero Court nevertheless applied quasi-strict scrutiny to sex-based classifications.

Prior to the handing down of this decision, the Connecticut Supreme Court had never considered whether classifications that discriminate against gay persons are entitled to heightened scrutiny under the equal protection provisions of the state constitution (article first, section 20 (as amended)).

The state correctly asserted that, in the overwhelming majority of cases in which the federal courts have considered this question, these courts have held that mere rational basis review is warranted. However, the court noted that these courts relied primarily on the US Supreme Court’s holding in Bowers v. Hardwick, supra. Although Bowers was a case involving a due process challenge, the lower courts have held, consistently, that because it was constitutionally permissible to punish intimate homosexual conduct, a group that is defined by that conduct cannot constitute a suspect or a quasi-suspect class (e.g., Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d, 261, 266 (6th Cir. 1995)). Thus, the impact of Bowers on subsequent equal protection cases was enormous. However, and crucially, Bowers is no longer good law; to the contrary, Bowers has been expressly and bluntly overruled (see Lawrence v. Texas, supra), and the US Supreme Court has held that the dissent in Bowers should have been controlling. Furthermore, Bowers was not overruled because of societal changes (which have a major impact in cases implicating the Eighth Amendment’s prohibition of “cruel and unusual” punishment – a concept that “draws its meaning from the evolving standards of decency that mark the progress of a maturing society” (Trop v. Dulles, 356 U.S. 86 (1958))) – it was overruled because the Lawrence Court recognized that Bowers was incorrectly decided at the time that it was decided (“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” (Lawrence, supra)). The Court went further, acknowledging in strong language that “[t]he 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…The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve 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.”

The Lawrence Court also held that it had construed the relevant Due Process question far too narrowly in Bowers. The Bowers Court framed this issue as “whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.” This insulting and denigrating framing of the issue “…discloses the Court's own failure to appreciate the extent of the liberty at stake. To 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” (Lawrence, supra).

This decision “removed the precedential underpinnings of the federal case law supporting the defendant’s claim that gay persons are not a quasi-suspect class.” In Lawrence, the US Supreme Court also held that the foundations of Bowers had been seriously eroded by intervening case law, making specific reference to Planned Parenthood v. Casey, 505 U.S. 833 (1992) and to Romer v. Evans, 517 U.S. 620 (1996).

In Casey (supra), the Court reaffirmed the substantive component of the Due Process Clause of the Fourteenth Amendment. Casey is perhaps best known for the following statement:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

This assertion is wholly irreconcilable with the Court’s holding in Bowers. Gay persons may seek autonomy with respect to the formation and conduct of personal, intimate relationships. Bowers would deny them this right. Bowers would permit the states to punish gay persons for expressing the very characteristic that is so central to their lives. The Lawrence Court recognized that it had made a serious mistake, and further recognized that this mistake had very real and deleterious consequences for the lives of gay persons. In Lawrence, the Court held that Associate Justice John Paul Stevens’ dissent in Bowers should have been controlling. This dissent emphasized that the fact that the governing majority of persons has traditionally viewed a practice as immoral is not a sufficient reason for upholding a law prohibiting that practice. Also, decisions by unmarried persons with respect to sexual behaviour are protected by the substantive component of the Due Process Clause in the same way that decisions by married persons are protected.

The state court recognized that Lawrence represented a “sea change” in US Supreme Court jurisprudence concerning the rights of gay persons. Almost all of the federal courts (at both the district level and the intermediate appellate level) relied heavily, if not exclusively, upon Bowers to conclude that gay persons are not entitled to consideration as a quasi-suspect or a suspect class. This impediment has been removed by Lawrence. The considerations that normally come into play when deciding whether a group of persons should be granted suspect class or quasi-suspect class status may now be applied by the federal district courts and the federal appellate courts to cases in which classifications are made on the basis of sexual orientation. Thus, examination of federal precedent is inappropriate at this time; reliance on such precedent would be misplaced, due to the fact that almost all federal precedent has been influenced by Bowers.

Two decisions handed down within a month of each other reflect the influence that Lawrence is now having on due process challenges to the ban against openly gay persons serving in the armed forces of the US. In May 2008, a three-judge panel of the US Court of Appeals for the Ninth Circuit reinstated a lawsuit filed by Air force Major Margaret Witt, who had been suspended from duty pursuant to 10 U.S.C. section 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, 527 F.3d 806, 828 (9th Cir. 2008), May 21, 2008). Senior Circuit Judge William Canby held that 10 U.S.C. section 654 should be subjected to strict scrutiny; he based this conclusion on the proposition that the right to engage in private, consensual sexual relations with another adult is a right of the highest constitutional order, and that this right is firmly protected by the substantive component of the Fifth Amendment’s Due Process Clause (Canby asserts that although the US Supreme Court did not expressly characterize this right as “fundamental,” it certainly treated it as such). Circuit Judges Graber and Gould held that 10 U.S.C. section 654 should be subjected to quasi-strict scrutiny; they concluded that the Court engaged in a searching inquiry that was certainly more demanding than mere rational basis review. The Connecticut Supreme Court adduced this decision as a case on point, holding that reliance on federal precedent controlled by Bowers is now entirely misplaced.

(Although this was not discussed by the Connecticut state supreme court, a three-judge panel of the US Court of Appeals for the First Circuit recently held that the US Supreme Court, in 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” (see Cook v. Gates, Nos. 06-2313, 06-2381, June 9, 2008). Judge Howard engaged in a meticulous examination of Lawrence, articulating four reasons in support of this holding. This falls outside the scope of this analysis, but it should be apparent that Lawrence has caused at least two of the federal appellate courts (to date) to conclude the right to sexual intimacy is a right of a very high constitutional order.)

For these reasons, the Connecticut Supreme Court concluded that almost all of the federal case law articulating the standard of review to which gay persons (as a group) should be subjected is no longer good law. This certainly appears to be a sound conclusion, given the above two circuit court opinions.

In Romer v. Evans, supra, the US Supreme Court purported to apply rational basis review to strike down Colorado’s Amendment 2 (see above discussion) (in fact, the Court may have applied a much more demanding standard of review than mere rational basis review, notwithstanding the language employed). The state argued that, because the US Supreme Court applied rational basis review to find that Amendment 2 violated the Equal Protection Clause, this is the standard of review that should always be applied in cases in which classifications are made on the basis of sexual orientation. The Connecticut state court spent little time exposing the folly underlying this analysis. The Romer Court held that Amendment 2 could not withstand even the lowest level of review (rational basis review); it was therefore entirely unnecessary for the Court to decide whether heightened scrutiny was required. This is in accordance with the Court’s own well-established principle “never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied” (see Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)).

In sum, the court held that federal case law is inapposite because these cases rely so heavily on Bowers v. Hardwick, supra, which has been overruled by Lawrence v. Texas, supra. In addition, federal courts that have determined that gay persons are not entitled to heightened protection have failed to reconcile their analyses with the analysis employed by the US Supreme Court in concluding that women comprise a quasi-suspect class.

The court then turned to an analysis of sister state supreme court opinions. The majority of such opinions have concluded that gay people are not entitled to heightened protection; however, the Connecticut state court concluded that these cases were analytically unsound and did not constitute persuasive authority. Instead, the Connecticut state court held that the recent opinion handed down by the California Supreme Court (in re Marriage Cases, S147999, May 15, 2008) constituted persuasive authority; the Connecticut state court also aligned itself with Chief Judge Kaye’s dissent in Hernandez v. Robles, supra. Time constraints prevent a detailed discussion in this essay; however, in almost all cases, the respective state supreme courts failed to properly apply the four-pronged test for suspectness or quasi-suspectness.

Turning to public policy considerations, the state court held that the change to the definition of marriage would not in any way impair the ability of heterosexual persons to avail themselves of the benefits and protections afforded by this institution. Instead, the state court held that granting gay persons access to this institution would expand the right to marry without any adverse effect on those already free to exercise that right. The state court compared this change to the change worked when the US Supreme Court struck down the ban on interracial marriages in Loving v. Virginia, 388 U.S. 1 (1967). The court also considered the effect that the ban on same-sex marriage has on children raised by same-sex partners, concluding that it was in the best interests of children raised by such couples to expand the definition of marriage so as to include same-sex spouses. Thirdly, the state court held that “civil unions” would be viewed as reflecting an official state policy that this entity is inferior to marriage. Finally, the court concluded that religious autonomy would in no way be impaired by expanding the definition of marriage to include same-sex couples. Those churches opposed to same-sex marriages can never be forced to marry couples of the same sex, just as they can never be forced to marry divorced people, or people who are not members of the church in question. This is an important point that has been made, over and over again, by gay rights activists; no church would ever be forced to conduct marriages of same-sex couples, and religious autonomy would in no way be compromised by permitting same-sex marriages.

The state court then turned to the final determination – having established that gay persons meet the four criteria adumbrated by the court for treatment as a quasi-suspect class, the state’s actions have to be “substantially related to an important state interest” (as opposed to “rationally related to a legitimate state interest” (rational basis review), or “necessary for the promotion of a compelling state interest” (strict scrutiny)). The state proffered two justifications for not permitting same-sex couples to marry, in the face of the court’s determination that gay persons comprise a quasi-suspect class.

The first reason advanced by the state was to promote uniformity and consistency with the laws of other jurisdictions. The state, however, advanced no explanation as to why the promotion of uniformity with the laws of other jurisdictions constituted a truly important state interest, and failed to identify case law that would support this contention. In the absence of such a showing by the state, the state could not prevail on its claim that “the state’s interest in defining marriage as most other jurisdictions do is sufficiently compelling to justify the discriminatory effect” that this definition has on gay persons.

The second reason advanced by the state was to preserve the traditional definition of marriage as a union between a man and a woman. It was abundantly clear, from the record, that this was the state’s primary, and overriding, goal. The circular nature of this reasoning is self-evident. Citing from Chief Judge Kaye’s dissent in Hernandez v. Robles, supra, the court held that “[a] classification…cannot be maintained merely “for its own sake” (see Romer v. Evans, supra). Instead, the classification (that is, the exclusion of gay persons from civil marriage) must advance a state interest that is separate from the classification itself. Because the “tradition” of excluding gay persons from civil marriage is no different from the classification itself, the exclusion cannot be justified on the basis of “history.” Indeed, the justification of “tradition” does not explain the classification; it merely repeats it. Simply put, a history or tradition of discrimination – no matter how entrenched – does not make the discrimination constitutional” (internal citations omitted). Indeed, the court noted, “the fact that same-sex couples have traditionally been prohibited from marrying is the reason [the action challenging the ban on same sex marriage] was commenced; it cannot be converted into the dispositive reason it cannot succeed” (cited from in re Marriage Cases, supra).

Like the California Supreme Court, the Connecticut Supreme Court approached the issue not by creating a new right to “same-sex marriage,” but by applying equal protection theory to include gay people in the pre-existing right of marriage. When the California Supreme Court overturned the prohibition against interracial marriage (see Perez v. Sharp, 32 Cal.2d 711, 198 (1948)), this court did not create a new right to “interracial marriage” – it employed state constitutional analysis to expand the right to marry to interracial couples. The US Supreme Court eventually followed the lead set by the California Supreme Court, holding that the prohibition of interracial marriages violated the Equal Protection Clause of the Fourteenth Amendment (Loving v. Virginia, 388 U.S. 1 (1967)).

Although three of the seven Justices dissented, it is noteworthy that the dissenting Justices made only passing reference to the tired refrain that this matter should be decided by the democratic process, as opposed to being decided by judges through state constitutional interpretation. One of the three dissents focused primarily on the assertion that civil unions were inferior to actual marriages, as well as on the importance of the “political powerlessness” factor in triggering quasi-strict scrutiny. One patently absurd dissenting argument was that there was no equal protection violation, because both gay and heterosexual persons have the right to marry a person of the opposite sex. Another analytically impoverished dissent argued that the purpose of marriage is to regulate procreation – an argument that has been emphatically rejected by the California Supreme Court and by the Connecticut Supreme Court majority. As has been pointed out elsewhere, the ability to procreate is no longer central to the definition of marriage. Many married people choose not to have children, or are unable to have children, just as many unmarried people choose to have children. This dissent reduced marriage to the status of a vehicle that “enhances the special status of procreative conduct.”

Unlike the California state constitution, the Connecticut state constitution cannot be amended directly, by the voters. This is crucial – whereas the right wing can whip up anti-gay hysteria in California, and may even succeed in reversing the California Supreme Court decision, the right wing cannot manipulate the voters of Connecticut in this manner. Connecticut has thus become the third state to recognize gay marriage in both name and substance. (A challenge to the prohibition of gay marriage in Iowa is currently pending.)

All of this is proof that the incremental strategy of appealing to state supreme courts is working, albeit slowly. Just as the gay community turned to state supreme courts to strike down sodomy statutes in the wake of Bowers (supra), so is the gay community turning to state supreme courts to strike down prohibitions against gay marriage. Both time and justice are on our side.

Three down, with 47 to go.

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 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 traditional 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 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 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 check against majoritarian excesses. Associate Justices Antonin Scalia and Clarence Thomas, with their hysterical, shrill, over the top dissents in both Lawrence and Romer indicate, with chilling verbiage, the direction in which “strict constructionism” would take America.

PHILIP CHANDLER

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.

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.

PHILIP CHANDLER

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.

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. 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.

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 guarantee.

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 exercise of the liberty interest by the group in question (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.

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 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 21^st 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 #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 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

During the course of my activism as an ardent and passionate believer in the promotion of social and legal acceptance of gay Americans, I have frequently been confronted with religious objections to homosexuality.  The most frequently cited passage of the Bible with which I have been confronted by those who believe that homosexuality is immoral is undoubtably Leviticus Chapter 18 Verse 22 (Leviticus 18:22).  Several versions of this passage are cited below:

"Thou shalt not lie with mankind, as with womankind: it is abomination."  (King James Version)

"'Do not lie with a man as one lies with a woman; that is detestable."  (New International Version)

"You shall not lie with a male as one lies with a female; it is an abomination."  (New American Standard Version)

"And with a male thou dost not lie as one lieth with a woman; abomination it [is]."  (Young's Literal Translation)

"Do not practice homosexuality, having sex with another man as with a woman. It is a detestable sin."  (New Living Translation)


These are just five translations of Leviticus 18:22.  By accessing the Web site at http://www.biblegateway.com/passage/?search=Leviticus%2018:22;&version=15;, it is possible to derive a total of 21 different translations in English alone (and this list is by no means exhaustive).

The problem I have encountered over and over again when dealing with religious objections premised on interpretations of Leviticus 18:22 is the manner in which the people who invoke Leviticus 18:22 do so with total disregard for other prohibitions enunciated with equal force by Leviticus.  This is best illustrated by a fictional letter written to Laura Schlessinger (widely known as Dr. Laura).

Prior to 1997, Schlessinger was outspoken in her sympathy for gay and lesbian Americans, and was also a vocal proponent of gay relationships, opining that it was cruel to deny love and happiness to gay couples.  Schlessinger took issue with fundamentalist Christians and cultural conservatives, berating them for their anti-gay hostility and for their strident condemnation of homosexuality.

Something happened to change Schlessinger's mind in 1997.  She switched from this gay-supportive and humanitarian perspective to a harsh, insulting perspective, claiming that she had been misinformed.  The "new" Dr. Laura condemned gay relationships, and advocated the work of so-called "reparative therapists" (men and women who claim to be able to change the sexual orientation of gay men and lesbians).  The American Psychological Association spoke out against the dangers of such misguided attempts to "correct" homosexual sexual orientation (several inductees into the ranks of the "ex-gay" movement have committed suicide); Schlessinger, in turn, spoke out against the American Psychological Association, asserting that it had signed on to the "gay agenda." and had been co-opted by gay activists.  Soon, a nationwide movement emerged, dedicated to debunking Schlessinger's views and assertions.  What follows is a letter that was supposedly written to Schlessinger -- this (somewhat irreverent) letter illustrates the hypocrisy of the Leviticus crowd, members of which pick and choose which portions of Leviticus are relevant to our lives today, treating Leviticus specifically (and biblical teachings more generally) as a cafeteria, from which they select only those prescriptions and proscriptions that suit their tastes:

"Dear Dr. Laura:

Thank you for doing so much to educate people regarding God's Law. I have learned a great deal from your radio show, and I try to share that knowledge with as many people as I can. When someone tries to defend the homosexual lifestyle, for example, I simply remind them that Leviticus 18:22 clearly states it to be an abomination. End of debate.

I do need some advice from you, however, regarding some other specific Bible laws and how to follow them.

a) When I burn a bull on the altar as a sacrifice, I know it creates a pleasing odor for the Lord (Lev. 1:9). The problem is my neighbors. They claim the odor is not pleasing to them. Should I smite them?

b) I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7. In this day and age, what do you think would be a fair price for her? She's 18 and starting University. Must the slave buyer continue to pay for her education by law ?

c) I know that I am allowed no contact with a woman while she is in her period of menstrual uncleanliness (Lev. 15:19-24). The problem is, how do I tell? I have tried asking, but most women take offense.

d) Lev. 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighboring nations. A friend mine claims that this applies to Mexicans, but not Canadians. Can you clarify?  Why can't I own Canadians?

e) I have a neighbor who insists on working on the Sabbath. Exodus 35:2 clearly states he should be put to death. Am I morally obligated to kill him myself, or should this be a neighborhood improvement project ?

f) A friend of mine feels that even though eating shellfish is an abomination (Lev. 11:10), it is a lesser abomination than homosexuality. I don't agree. Can you settle this?

g) Lev. 21:20 states that I may not approach the altar of God if I have a defect in my sight. I have to admit that I wear reading glasses. Does my vision have to be 20/20, or is there some wiggle room here? Would contact lenses help ?

h) Most of my male friends get their hair trimmed, including the hair around their temples, even though this is expressly forbidden by Lev. 19:27. How should they die?

i) I know from Lev. 11:6-8 that touching the skin of a dead pig makes me unclean, but may I still play football if I wear gloves?

j) My uncle has a farm. He violates Lev. 19:19 by planting two different crops in the same field, as does his wife by wearing garments made of two different kinds of thread (cotton/polyester blend). He also tends to curse and blaspheme a lot. Is it really necessary that we go to all the trouble of getting the whole town together to stone them? (Lev. 24:10-16).  Couldn't we just burn them to death at a private family affair like we do with people who sleep with their in-laws? (Lev. 20:14)

I know you have studied these things extensively, so I am confident you can help. Thank you again for reminding us that God's word is eternal and unchanging.

Your devoted disciple and adoring fan."

This tonge-in-cheek letter shows just how absurd it is to wrench one specific verse of Leviticus from its temporal, social, and cultural context.  If a person of good faith is going to rely on Leviticus to buttress his or her anti-gay perspectives, turnabout is fair play.



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 male genitals using a mercury-in-rubber ring placed around the shaft of the subject's genitals 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 male genitalses 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

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.

Lies, Damned Lies, and Statistics

It is very easy to confuse people who lack a fundamental educational background in the mathematical sciences by manipulating data derived from flawed “research” protocols (supposedly scientific studies, surveys, etc.) and publishing the results of such manipulations in what appear, on their face, to be scientific journals and academic archives.  Many people assume that the mere publication of a set of “findings” in a scientific journal or academic archive is tantamount, in and of itself, to the endorsement of such “findings” by “experts” in various fields, particularly if the journals in question have official-sounding names, and particularly if the articles in which these “findings” are published are indexed by extensive bibliographic references.  Most people of good will lack the time and the requisite educational backgrounds to distinguish high quality documentation pertaining to validly constructed scientific research protocols from poor quality documentation, or from documentation pertaining to grossly unreliable or poorly designed research protocols.

This holds true regardless of whether the issue in question lends itself readily to precise and accurate assessment, or whether the issue in question requires some understanding of the context in which it is encountered, and / or some awareness of the limitations that qualify precise and accurate measurements in the field.  Psychological research is particularly vulnerable to errors in data analysis, interpretation, and communication of results, and the vast majority of non-professional people lack the skills necessary to distinguish between valid and reliable assessment tools on the one hand, and invalid or unreliable assessment tools on the other hand.

A solid understanding of the concepts of validity and reliability is crucial in the field of psychological assessment.  Clinical psychologists and other clinicians dealing with abnormal psychology have at their disposal a number of tools with which to assess and describe such issues as personality, mental illnesses, and psychological disturbances.

The validity of a psychological assessment tool is a measure of the extent to which the tool in question actually measures the characteristic or construct that it is intended to measure.  The original Minnesota Multiphasic Personality Inventory (MMPI) is widely regarded as the most extensively researched psychological assessment tool in the world.  The original MMPI was released in 1942 by the University of Minnesota, which has the copyright for this tool.  This test was revised in 1989 and is now commonly denoted as the MMPI-2; another version reflecting additional revisions (the MMPI Restructured Form or MMPI-RF) is scheduled for release in late 2007.  A special version of the MMPI was released in 1992; this version (the MMPI-A) was developed for the purpose of testing adolescents.  This particular psychological assessment tool is one of the most widely utilized tests of adult psychopathology.  It is also utilized in criminal justice and correctional contexts, and is part of a battery of tests utilized by agencies such as the Secret Service and the FBI for the purpose of psychological evaluation, where it is utilized for the identification of suitable candidates for high-risk public safety positions.  The MMPI is also utilized in college and career counseling, in developing substance abuse treatment protocols, and in designing effective treatment strategies for both psychological problems and medical problems (e.g. chronic pain management).  A huge body of literature exists in which the validity of this tool has been discussed, and the vast majority of clinicians and other professionals who utilize this tool consider it to be invaluable in terms of both validity and reliability.

The reliability of a psychological assessment tool is a measure of the extent to which the tool in question yields results which are stable across time.  If repetition of the test yields similar results for the test subjects with each repetition, then the test in question is reliable.  The MMPI is so widely used precisely because it has been found to be both valid and reliable.  This particular tool measures various psychological attributes with a high degree of validity, i.e. it accurately measures what it is intended to measure.  It is also reliable, in that repetitions of this test on the same subjects across extended periods of time yield similar results with each repetition.

The Rorschach Inkblot Test is the second most widely utilized test in personality assessment.  The subject, or testee, is shown a total of 10 symmetrical inkblots and is asked to describe what he or she sees in each inkblot.  The subject’s responses are noted.  Everything that the subject says and does is captured by the tester, who interprets the results with the aid of a scoring system referred to as the Exner scoring system, or Comprehensive system.  This scoring system includes frequency tables which show how often specific responses to each inkblot are given by the general population.  This scoring system includes scales for Form Quality, Deviant Verbalizations, Complexity, Human Figure, Organizational Activity, and Overall Total Responses (these are just a few of the scales).  Some of these scales have been shown to correlate reasonably well with intelligence, across different testers.  For example, Overall Total Responses (abbreviated as the R scale) correlates highly with intelligence; there is definitely a correlation between the R scale and intelligence, with high values of R correlating with higher intelligence.  However, high values of R also correlate with higher values on some of the scales which indicate psychopathology.  The overall validity of the Rorschach Inkblot Test is most controversial, as is its reliability.  Intuitively, this is easy to understand; a degree of subjectivity is unavoidable when administering and scoring this test, regardless of who performs the test and how often the test is performed.  Furthermore, the 10 inkblots comprising the test materials were leaked in print in 1983 and were distributed on the Internet in 2004, enabling potential testees to “rehearse” their answers, particularly under circumstances in which this test is administered for diagnostic purposes within the criminal justice system (granting parole, assigning custody, etc.)..  It is accurate to state that both the validity and the reliability of this test are questionable, particularly when compared to the validity and reliability of the MMPI.

Most readers of this blog will have stumbled across this information for the first time right here, in this post, above.  Those readers to whom both of these tests have been administered will probably be quite surprised to learn that one of these tests is considered to be much more reliable and much more valid than the other.  This is not the fault of the reader; it is mentioned merely to underscore the extent to which ordinary men and women place considerable faith in the protocols utilized by clinicians and diagnosticians in the field of psychological assessment, particularly as pertains to the diagnosis of mental disorders.

The hard right in the US knows full well that the majority of people lack scientific backgrounds and can therefore be mislead by assertions made by “scientists” and “researchers,” particularly when dealing with controversial issues such as the rights of gay people and the manner in which gay people lead their lives.  It is therefore very easy to mislead people by publishing the results of “research” in journals which have authoritative-sounding names.  Tapping in to such ignorance and presumptions is precisely what anti-gay organizations (such as “Focus on the Family” (FOTF), the “American Family Association” (AFA), the “Traditional Values Coalition” (TVC), and the “Family Research Council” (FRC)) engage in with respect to shaping public policy and public opinions of gay people in the US.  The “researcher” most frequently cited by these organizations in their attempts to portray gay people as depraved, diseased, uncaring, and immoral is a man named Paul Cameron.

Cameron was born in 1939 in Pittsburg, PA.  He received his B.A. from Los Angeles Pacific College in 1961 and went on to obtain his M.A. from California State University, Los Angeles, in 1962.  Cameron then obtained his Ph.D. from the University of Colorado in 1966, submitting a dissertation titled “Age as a determinant of differences in non-intellective psychological functioning.”  He was affiliated with several colleges and universities until 1980; these institutions included Wayne State University (1967 – 1968), University of Louisville (1970 – 1973), Fuller Theological Seminary (1976 – 1979), and the University of Nebraska (1979 – 1980).  In 1982, Cameron founded an organization named the “Institute for the Scientific Investigation of Sexuality” (ISIS), which is now known as the “Family Research Institute” (FRI) (Cameron is Chairman of this organization).

The FRI was formed following an unsuccessful attempt by the Lincoln, NE City Council to pass an ordinance which would have prohibited employment discrimination on the basis of sexual orientation.  Cameron headed up an organization named the “Committee to Oppose Special Rights for Homosexuals,” which led the opposition to the proposed measure.  During his campaign to defeat this measure, Cameron delivered a speech at the Lutheran chapel of the University of Nebraska, in which he stated that a four-year-old boy had been brutally sexually assaulted by a gay man at a local shopping mall.  In fact, the police were unable to confirm that any such attack had occurred, and Cameron has since admitted that he had heard (and repeated) this accusation as a mere rumor.

The mission statement of the FRI declares that the FRI has “…one overriding mission: to generate empirical research on issues that threaten the traditional family, particularly homosexuality, AIDS, sexual social policy, and drug abuse.  This organization further seeks “"...to restore a world where marriage is upheld and honored, where children are nurtured and protected, and where homosexuality is not taught and accepted, but instead is discouraged and rejected at every level."  The FRI moved from Lincoln, NE to Washington, DC, and then to Colorado Springs, CO, where it remains active and continues to generate anti-gay propaganda.

Cameron is a tireless crusader who is utterly determined to portray the gay community as a threat to public health, a danger to small children, and a scourge to civilization itself.

Ordinarily, ad hominem observations are useless when debating issues of fact, and tend to undermine the credibility of the person who makes them.  However, when such observations bear directly on the credibility of a person who assumes a self-appointed role as guardian of the public health and welfare, then it is entirely reasonable to make reference to such observations, particularly when the person in question casts aspersions on the credibility of the group that he or she attacks.  Bearing this in mind, the following observations should be made relative to Cameron and his relationships to professional bodies and peers.

Cameron describes himself as a “Researcher / Clinician” on his resume.  However, Cameron was only permitted to practice psychology in the State of Nebraska, and his license to practice psychology in that state is currently listed as “Inactive” on the Web site of the Nebraska Department of Health and Human Services (see http://www.nebraska.gov/LISSearch/search.cgi, where you can perform a search for his credentials).  His license (#100334) lapsed into “Inactive” status effective January 2, 1995.  Cameron is therefore not a licensed clinician, and his continued references to himself as a clinician are therefore flat-out lies.

Cameron was expelled from the “American Psychological Association” (APA) in December 1983, after ethics charges were brought against him in response to his misrepresentation and distortions of the results of studies performed by other psychologists working at the University of Nebraska.  Cameron insists that he resigned from the APA – however, the APA’s bylaws make it clear that a member of the APA may not resign during the course of an ethics investigation of that member.  The APA formally expelled Cameron on December 2, 1983, stating that “Paul Cameron (Nebraska) was dropped from membership for a violation of the Preamble to the Ethical Principles of Psychologists.”  Cameron has gone to elaborate and embarrassing lengths to explain this away on his Web site – however, his formal expulsion from this body stands.

The “Nebraska Psychological Association” (NPA) adopted a resolution at its membership meeting on October 19, 1984, stating that this organization “formally disassociates itself from the representations and interpretations of scientific literature offered by Dr. Paul Cameron in his writings and public statements on sexuality.”  The NPA went on to state that “…the Nebraska Psychological Association would like it known that Dr. Cameron is not a member of the Association.  Dr. Cameron was recently dropped from membership in the American Psychological Association for a violation of the Preamble to the Ethical Principles of Psychologists.”

In 1985, the “American Sociological Association” (ASA) adopted a resolution declaring that “Dr. Paul Cameron has consistently misinterpreted and misrepresented sociological research on sexuality, homosexuality, and lesbianism," also noting that "Dr. Paul Cameron has repeatedly campaigned for the abrogation of the civil rights of lesbians and gay men, substantiating his call on the basis of his distorted interpretation of this research."  This resolution formally charged an ASA committee with the task of "critically evaluating and publicly responding to the work of Dr. Paul Cameron."

In August 1986, the ASA accepted the committee’s report and adopted the following resolution: “The American Sociological Association officially and publicly states that Paul Cameron is not a sociologist, and condemns his consistent misrepresentation of sociological research.  Information on this action and a copy of the report by the Committee on the Status of Homosexuals in Sociology, "The Paul Cameron Case," is to be published in Footnotes, and be sent to the officers of all regional and state sociological associations and to the Canadian Sociological Association with a request that they alert their members to Cameron’s frequent lecture and media appearances.”

Cameron’s shameful abuse of public trust has been noted by organizations outside of the US.  In 1996, the Board of Directors of the “Canadian Psychological Association” (CPA) released a position statement denouncing Cameron’s work and distancing the CPA from Cameron’s “findings,” stating that Cameron had “consistently misinterpreted and misrepresented research on sexuality, homosexuality, and lesbianism.”

It is difficult to find any contemporary figure in the human sciences who has been denounced by so many well-respected and prestigious organizations, including the largest professional organization of psychologists in the US (the APA).  However, criticism of Cameron and his methodology has not been confined to statements made by professional organizations.  In 1985, US District Court Judge Jerry Buchmeyer subjected Cameron to a blistering tongue-lashing.  Judge Buchmeyer, presiding over proceedings pertaining to the constitutionality of the Texas “homosexual conduct” statute, concluded that “…Dr. Paul Cameron...has himself made misrepresentations to this Court" and that "[t]here has been no fraud or misrepresentations except by Dr. Cameron" (see Baker v. Wade (1985) (p.536)).

Undaunted by these criticisms of both his integrity and his methodology, Cameron went on to participate in the now-notorious “gay obituary” study, the results of which purported to show that gay men and lesbians have much shorter lifespans than heterosexual men and women.  In 1994, Cameron and his associates counted obituaries published by the gay press in gay newspapers and periodicals, and used this data to estimate the lifespans of gay men and lesbians.  This is a textbook case revealing the deficiencies associated with drawing conclusions from a convenience sample as opposed to a representative sample.

A representative sample is precisely what the name implies: it is a sample from a population that is representative of the entire population.  When a doctor performs blood tests, e.g. for the diagnosis of an infection, the doctor does not drain all of the blood from a patient’s body in order to determine the white blood cell count (WBC) and the presence or absence of antibodies.  Instead, the doctor takes one or more test tubes and fills those test tubes with blood drawn (usually) from a vein.  The doctor then performs the necessary tests against these blood specimens.  This is methodologically sound because blood drawn from a vein in the arm is very similar to blood drawn from a vein in the foot; in most cases, the WBC will be the same regardless of from where the blood was drawn.  This is, in other words, a representative sample of the patient’s blood.

Now consider obituaries published in gay periodicals and newspapers.  These obituaries are hopelessly unrepresentative of the populations in question (the entire gay and lesbian population).  Reasons for this lack of adequate representation are directly attributable to the following observations:

Most gay community newspapers do not have sections of death notices.  As the AIDS epidemic began to claim the lives of so many gay men during the 1980s, however, many (but certainly not all) gay newspapers and periodicals began to publish obituaries.  These obituaries are usually compiled by, and submitted by, close friends and relatives of the deceased (exceptions to this occur in those cases when the deceased is a public figure, or an influential figure in gay politics, in which cases obituaries are frequently prepared by organizations seeking gay equality in the US).  In the vast majority of cases (those cases where the deceased is not a public figure), obituaries only appear in gay community newspapers and periodicals if (1) a loved one or friend of the deceased notifies the newspaper of the death of the deceased, often after preparing an obituary for the deceased, and (2) the editor of the newspaper or periodical in question decides to print the obituary.

Thus, most gay men and lesbians do not have their deaths written up in obituaries published in the gay media.  The following is a list (by no means exhaustive) of the groups of gay men and lesbians who, upon passing away, are unlikely to have obituaries printed in the gay media:

·         Gay men and lesbians who are not involved in the gay community (men and women who are not activists or outspoken contributors to the politics of gay equality);

·         Gay men and lesbians who are closeted, i.e. not open about their sexual orientation.  Sadly, this reflects a large percentage of the overall gay population in the US;

·         Gay men and lesbians whose families do not wish for the sexual orientation of the deceased to be made a matter of public record;

·         Gay men and lesbians whose families or significant others simply do not consider sending obituaries to the gay press;

·         Gay men and lesbians whose families or significant others did not send in obituaries for other reasons (shock and grief can prevent a gay-supportive family or circle of friends from thinking about sending obituaries to the gay press

·         Gay men and lesbians who die without leaving loved ones to write obituaries for the deceased, e.g. gay people whose loved ones die before them).

An accurate estimate of the lifespans of gay men and lesbians would have to include the lifespans of people from all of the above groups even to approach adequate and accurate representation of the average ages of death of gay men and lesbians.  Furthermore, this “research” is fatally flawed in another, important respect: it is by its nature a retrospective analysis of lifespans, where a prospective analysis would be much better suited to accomplishing the task in question.  A prospective study would require the selection of groups of heterosexual and gay men and lesbians (at least four groups in total – gay men, lesbians, heterosexual men, and heterosexual women) carefully chosen to eliminate confounding variables such as socio-economic status, congenital illnesses (which have no bearing on sexual orientation), access to healthcare, differences in schooling and education, etc.).  Retrospective studies, whilst useful, are flawed in that they cannot, even under the best of circumstances, yield results as meaningful as those yielded by prospective studies.  For example, when assessing the efficacy of anti-retroviral medications, it is almost always necessary to identify a control group and an experimental group, members of which both of which have to be matched for such factors as prior exposure to specific anti-retroviral drugs, comparable viral loads, comparable clinical presentation, etc.  Only when the efficacy of the drug in question is established by observing and documenting improvements in clinical outcomes, or improvements in terms of lower viral load, higher CD4 counts, etc. can the experimental drug be said to be effective as an addition to existing treatment regimens.  Prospective studies, however, are beset with ethical problems – many doctors regard it as immoral to maintain patients on the non-experimental protocol, for which reason patients receiving the non-experimental protocol are frequently granted access to the experimental drug as soon as the improved outcome of utilizing that drug in combination with those already prescribed has been established.

In short, Cameron’s “obituary studies” are utterly worthless in terms of predicting and comparing the lifespans of gay people versus heterosexual people.  Cameron has a Ph.D. – he is not a naïve fool.  The poor quality of his analysis and the highly selective nature of the “convenience sample” in question leads inevitably to the inference that Cameron conducted his “obituary study” not for the purposes of the dispassionate analysis and the advancement of legitimate scholarship, but for the purpose of generating “empirical data” for the purpose of “restor[ing] a world where marriage is upheld and honored, where children are nurtured and protected, and where homosexuality is not taught and accepted, but instead is discouraged and rejected at every level.”

During 1983 and 1984, Cameron conducted a “National Survey,” supposedly for the purpose of accurately and dispassionately quantifying the behavior of gay men and lesbians.  The “National Survey” study was intended to provide the world with accurate information about the sexual activity of gay men and lesbians throughout the US.  This survey therefore drew upon responses from the citizens of seven municipalities (Bennett (NE), Denver (CO), Los Angeles (CA), Louisville (KY), Omaha (NE), Rochester (NY), and Washington (DC)); data from Dallas (TX) was added later.  However, at least six serious errors have been identified in Cameron’s sampling techniques, survey methodology, and interpretation of results.  Any one of these errors, on its own, would render Cameron’s conclusions highly suspect – the combination of all six errors results in the generation of data which is completely meaningless.  The six errors are discussed below:

1)       There is nothing “national” about data derived from only eight municipalities.  By deriving data only from respondents living within these eight municipalities, Cameron systematically excluded all US adults who resided elsewhere.  At best and assuming otherwise flawless sampling techniques, methodology, and interpretations, Cameron’s “findings” could be extrapolated only to the populations of the eight municipalities in question.  However, there was nothing flawless about the sampling techniques utilized within these eight municipalities, as will be discussed in (2) below.

2)       Cameron never reported the response rate he obtained within each of these eight localities.  Instead, Cameron reported a “compliance rate,” where the “compliance rate” was the percentage of respondents in each city who returned the survey form after actually being contacted and given the survey form.  In other words, Cameron omitted the vast majority of respondents who simply refused to participate in the survey (some of these people refused to accept the survey form and wanted nothing to do with the study).  There are major differences between people who refuse to participate in a study and those who choose to participate in a study, particularly when the information gleaned from the study is highly sensitive and personal in nature.  This was an error that any first-year student of inferential statistics would recognize in a heartbeat.  Cameron reported a compliance rate of 43.5% for the seven-city survey (which was later corrected to 47.5%) and a 57.7% compliance rate for the Dallas survey.  The actual response rates, given the above distortion, were much, much lower.  Usage of the “compliance rate” was grossly misleading because it excluded the large number of households within the eight cities who were never successfully contacted (the so-called “not-at-homes”).  Legitimate research of this nature requires that the researcher report the true response rate – the actual number of completed surveys divided by the total number of households initially targeted by the survey.  Using Cameron’s own data, the true response rate for the seven-municipality survey was a mere 23.6; the response rate for the Dallas survey was a mere 20.7%; and (using appropriate weighting techniques in these calculations) the overall response rate across all eight municipalities was approximately 23%.  More than three out of every four households targeted for this survey either refused, outright, to participate in the survey; accepted a survey form but failed to return it; or could not be contacted.  This pitifully low response rate makes it impossible to take Cameron’s conclusions seriously.  While there is no uniformly accepted figure for a “good” response rate, it is clear that the Cameron surveys relied not upon a random sample but instead upon a convenience sample.  It is impossible to generalize from a convenience sample to an entire population with any confidence in the legitimacy of the generalization; yet this is precisely what Cameron attempted.  Again, it should be stressed that Cameron is not a fool, nor is he naïve, leading inevitably to the inference that his publication of these “results” was motivated by raw animus to the class of persons targeted by the “survey” (gay Americans).

3)       Had Cameron’s 1983 – 1984 combined sample been a true random sample (which it most certainly was not, as discussed in (2) above), it would have been large enough (N = 5,182) to permit Cameron to make estimates of general population characteristics with only a small margin of error.  This, however, is moot, due to the extremely low response rates and the fact that Cameron employed a convenience sample instead of a random sample.  However, even if one makes the assumption that Cameron’s sample was a random sample (which it was not), Cameron tried, in several papers, to make reliable estimates about the characteristics of extremely small subgroups within this sample.  For example, Cameron identified a total of 17 respondents within their 1983 – 1984 samples who claimed to have a gay parent.  Cameron then scrutinized the questionnaires completed by these 17 respondents for negative sexual experiences, one of which was incestuous sexual activity with a gay parent.  Of the 17 respondents who were asked whether they had ever experienced an incestuous sexual encounter with their gay parents, five answered in the affirmative.  This enabled Cameron to argue that 29% (five divided by 17) of gay Americans have incestuous relationships with their parents, as opposed to only 0.6% of the children of heterosexual parents, and that “having a homosexual parent(s) appears to increase the risk of incest with a parent by a factor of about 50.”  Reliance upon such a small subset of respondents is invalid due to the fact that data from such a ridiculously low sample have an unacceptably high margin of sampling error.  In a true random sample of 17 (and this was not a true random sample of 17, as discussed in (2) above), the margin of error due to sampling (with a confidence level of 99%) is plus-or-minus 33%.  Thus, had the subset of 17 people been drawn from a true random sample (which it was not), all that one would have been able to conclude from Cameron’s data is that the true proportion of adults who have a gay parent and who have been sexually abused by that parent is anywhere from -4% (effectively zero) and 62%.  Such a wide margin of error renders the result completely meaningless.  Furthermore, because the confidence interval includes zero, Cameron could not legitimately conclude that the true number of children of gay parents (in the eight municipalities sampled) who were the victims of gay incest was actually different from zero.

4)       The validity of the questionnaire items was most doubtful.  Data derived from self-reporting is useful only to the extent that respondents answer the questions truthfully and honestly.  When participants give incorrect or unreliable answers to questions, it is either because (1) they are unable to give accurate responses or (2) because they are unwilling to give accurate responses.  In Cameron’s “survey,” reasons exit to assume that both factors operated.  Cameron’s questionnaires contained 550 items and took, on average, at least 75 minutes to complete.  A large number of questions dealing with highly sensitive aspects of human sexuality were included, in some cases in a very complex format.  The problems of respondent fatigue and item difficulty both played a role in reducing the validity of the questionnaire.  Respondent fatigue is particularly likely to creep into a lengthy survey that takes more than an hour to complete.  It is possible to control for respondent fatigue by repeating some of the questions asked earlier in the test, towards the end of the test (if discrepancies are noted with consistency, the test should be revamped to reduce respondent fatigue).  Cameron did not utilize any such consistency checks in his questionnaire.  Furthermore, some of the questions, in addition to being extremely sensitive, were presented in extremely complex multiple-choice format.  In one section, for example, respondents were expected to read a list of 36 categories of persons (e.g., my female grade school teacher, my male [camp, Y, Scout] counselor), then to note the age at which each person made serious sexual advances to me, then to note the age at which each person had experienced physical sexual relations with me, and then to report the total number of people in each category with whom the respondent had sexual relations.  Another item asked respondents why they thought they had developed their sexual orientation, and gave a checklist of 44 reasons, including I was seduced by a homosexual adult, I had childhood homosexual experiences with an adult, and I failed at heterosexuality.  Many respondents probably became confused, tired, and alienated by the content of some of the questions.  In addition, when presented with long lists of alternatives, many respondents may have skipped the lower items on the list, or read them incompletely.  Another validity problem that can arise when dealing with such complex issues takes the form of respondents intentionally giving incorrect information.  Any test or questionnaire based on self-reporting relies on the honesty of the participants to include full and accurate information, and many respondents may have been made uncomfortable by some of the questions that were asked.  One way in which an experienced psychologist can reduce the likelihood of false or malicious answers being given is to ensure the respondents that their answers will remain anonymous (as opposed to confidential).  This procedure is utilized in cases where the subject matter is complex and in which respondents do not wish for their names to be associated with their answers.  Cameron’s own notes and conclusions imply that the questionnaire that he distributed was not anonymous.  (There is a big difference between confidentiality and anonymity, and Cameron may have promised only the former.)  The manner in which the questionnaires were presented almost certainly impacted negatively on the validity of the results; complete strangers simply arrived on the doorsteps of the respondents, without any affiliation with a prestigious University, college, or institute.  In Bennett (NE), the local newspaper actually reported on advice given by a police offer to a neighbor not to complete the survey.  Furthermore, it is entirely possible that some people may have used this opportunity to sabotage the test by giving outrageous and inaccurate answers to the more sensitive questions (e.g. exaggeration of sexual activity, exaggeration of participation in multiple unconventional sexual acts, imputing instances of incest, etc.).  As discussed earlier, Cameron’s analysis of subgroups was particularly sensitive to fake answers because of the tiny numbers of people involved (17 people stated that they had a gay parent; two or three exaggerated answers would have dramatically skewed the results).  The impact of mischief-makers is maximized when dealing with very small subset samples, as occurred in Cameron’s case.  Furthermore, nobody from the study was present with the participants when they completed their questionnaires – a factor which could have played a dramatic role in permitting mischief-makers to skew the results.

5)       The interviewers may have been biased and may not have followed uniform procedures.  Professional survey organizations go to considerable lengths to ensure that testers approach the issues in question from a non-biased and non-judgmental viewpoint; they strictly follow standardized procedures and communicate a neutral, non-judgmental attitude towards the respondents.  Furthermore, the interviewers frequently know nothing of the goals of the survey.  It is impossible to know whether Cameron followed this protocol.  In his published report, he made no reference to such quality control procedures, which in and of itself implies that he did not employ such procedures.  It is not clear whether a supervisor randomly contacted some of the respondents in order to ensure that the respondent had, himself or herself, taken the test (numerous studies have been sabotaged by lazy administrators failing to distribute the tests properly; some such administrators may complete several tests themselves, in order to skip the hard work of going from door to door).  Such controls would have strengthened the validity of Cameron’s findings; the fact that they were not mentioned in his report suggests that they were not implemented in the field.  More serious, however, is the undisputed fact that several high-level members of the research team were active in distributing the questionnaires and collecting the data.  This is problematic because these people can be expected to have strong biases and a vested interest in the outcome – an interest that can cause them to transmit their expectations to the respondents (this is why people who have no knowledge of the objective of the study are usually employed to gather data).

6)       Cameron made his bias known during the period that the survey was being conducted.  In order to study a social phenomenon, researchers take great care to ensure that the individuals being studied do not become aware of the expectations or goals of the research in question.  Should the subjects become aware of the goals or expectations of the researchers, then the subjects may deliberately tailor their answers to thwart or to encourage the expectations of the researchers.  Cameron ignored this universally accepted caution and made headlines in Omaha, NE (one of the cities selected for his “nationwide” research), characterizing his survey as providing "ammunition for those who want laws adopted banning homosexual acts throughout the United States," and he was quoted as saying that the survey's sponsors were "betting that (the survey results would show) that the kinds of sexual patterns suggested in the Judeo-Christian philosophy are more valid than the Playboy philosophy."  During the course of conducting his survey, Cameron was publicly vocal in his support for a proposed quarantine of all gay people (he spoke out publicly about this proposal in Houston at the same time that the survey was being conducted in Dallas).  It is entirely possible that respondents in other cities became aware of Cameron’s goals and deliberately decided not to participate in the survey, or decided to give answers reflecting their personal bias and their personal desire to shape public policy.

Then there is the question of the publications in which Cameron published the results of his research.  Research studies are often evaluated in terms of the prestige of the scientific journals in which they are published, as well as in terms of the number of times these studies are cited in the literature by other researchers and scholars.  The Social Sciences Citation Index (SSCI) and the Journal Citation Reports (JCR) provide objective measures for these criteria, respectively.

The SSCI is a quarterly publication that lists, alphabetically by author, all articles that have been cited in scientific journals during that time period and the bibliographic reference for the articles that have cited them.

The JCR compiles data from the SSCI to report an impact factor for individual academic journals. The impact factor describes the average frequency with which articles in a particular journal are cited. It is computed as the number of times any article from that journal is cited during the first two years following its publication divided by the total number of articles published in that journal during the time period. To provide a simplified example, suppose that a particular journal published 25 articles in 1990, and those 25 articles were subsequently cited a combined total of 125 times between 1990 and 1992. The journal's impact factor for 1990 would be 125/25 or 5.0.  Although the impact factor has limitations, it is widely used by librarians, information scientists, and researchers from a variety of disciplines as an objective indicator of a journal's quality, value, and impact.

Cameron’s “research” has been published in four very low quality journals (i.e. journals with a very low impact factor).  Most of his “research” was published in one journal named Psychological Reports.  Unlike prestigious journals, Psychological Reports charges the researcher a fee by the page to print the so-called research.  This journal is, in fact, a vanity journal in which “researchers” may get material published which would be rejected by prestigious and highly regarded journals.  Cameron himself once described another journal in which his “research” has been published as “obscure.”

Based on data from the SSCI, Cameron’s work had almost no impact whatsoever on the literature.

It should be clear, taking all of the above issues into consideration, that Cameron and his acolytes are skilled liars and fraud artists.  Cameron’s “work” has been savaged by other, reputable researchers, and the few times in which his articles have been cited in the literature have been in critiques of his methodology.  This is a man who is little more than a hired gun with a veneer of respectability.  He is not interested in legitimate scientific research – to the contrary, he is committed to abusing research protocols in an effort to lend credence to his quackery and his efforts at social engineering.

PHILIP CHANDLER

LIE AND HIDE