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