Posts Tagged As: Supreme Court Rulings

SCOTUS Refuses to Hear Case on DADT

Timothy Kincaid

June 8th, 2009


The Supreme Court on Monday agreed with the Obama administration and refused to review Pentagon policy barring gays and lesbians from serving openly in the military.

The court said it will not hear an appeal from former Army Capt. James Pietrangelo II, who was dismissed under the “don’t ask, don’t tell” policy.

This does send a signal that the Court is not at this time willing to hear challenges to the policy. However, the decision was not a validation of the constitutionality of DADT and the Pietrangelo case was not the only one working its way through the legal system.

This refusal of certiorari does highlight the need to push our elected officials to do what is both ethically correct and the will of the people.

The Supreme Court Justices and Marriage Equality

Timothy Kincaid

May 27th, 2009

Section 1 of the Fourteenth Amendment to the United States Constitution reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This amendment is home to the “Equal Protections Clause” and “Due Process Clause”. And it is under the language of this clause that Theodore B. Olson and David Boies seek to have Proposition 8 determined to be unconstitutional.

Now to me it’s a simple proposition. Gay persons – and couples – are entitled to the priveleges of any other citizen. And, if it up to me, I would probably argue more about how Proposition 8 is an abridgement of my privileges as a citizen than I would about the due process of law. And I’d probably lose.

But regardless of the merits of the arguments, ultimately it isn\’t what I think, or what Olson and Boies think that about the application of these protections, it is what the nine Justices of the Supreme Court think.

It is not possible at this time to know the composition of the court should this suit ever reach it. Several members are quite elderly and some are not in good health and lawsuits of this sort can take years before they are heard.

But we can look to the present composition of the court and make some educated guesses about whether they would find such arguments compelling. To guide us, we can look to two significant previous rulings on gay issues that dealt with equal protections and due process.

In November 1992, the voters of Colorado passed Amendment 2 with 53% of the vote. This amendment to the state constitution disallowed sexual orientation as a basis to “claim any minority status, quota preferences, protected status or claim of discrimination”. The Colorado State Supreme Court invalidated the amendment on the basis that it violated the equal protections clause of the 14th Amendment. The state appealed to the US Supreme Court who, by a 6-3 split, found Amendment 2 unconstitutional, though for a different reason. Justice Kennedy wrote that the state had no rational reason to identify persons by a single trait – create a class – and to then deny them the right to even appeal for protection from the law.

Of those currently on the court, Justices Kennedy, Stevens, Ginsberg, and Breyer voted to overturn Amendment 2. Justice Souter also voted with the majority, but he has tendered his resignation.

Justice Scalia, on the other hand, found Amendment 2 to be “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores”. Justice Thomas agreed.

In June 2003, the Supreme Court declared that the sodomy laws of the State of Texas were unconstitutional by a vote of 6-3. Five justices, again Kennedy, Stevens, Ginsberg, Breyer, and Souter, found that it violated due process guarantees, specifically the “substantive due process” right to privacy. Justice O\’Connor based her position on “equal protections”, a position which she conceded raised the issue of marriage rights.

Justice Scalia wrote an angry screed in which he accused the court of having “largely signed on to the so-called homosexual agenda.” Thomas called the law “uncommonly silly” but found no right to privacy in the constitution.

Based on those two decisions, we can assume the following:

  • Justices Thomas and Scalia to not believe that laws created solely to disadvantage gay persons are contrary to any protections found within the Constitution.
  • Justices Kennedy, Stevens, Ginsberg, and Breyer are generally more sympathetic to the plight of persons who are singled out for exclusion from society. But we cannot make the assumption that this sympathy will extend to the definition of civil
  • Appeals to equal protections – the appeal that I would think most closely applies to marriage rights – do not seem to be the arguments that speak strongest to those on the court likeliest to be sympathetic.

And we have three lesser known quantities: Justices Alito and Roberts and judicial nominee Sotomayor. Reputation places the three as conservative, moderate, and liberal, respectively.

Justices have a habit of defying reputation and presumed ideology. However, I think it safest to assume that Justice Alito can be counted as a vote against marriage equality. And there is simply not adequate record to determine whether Roberts or Sotomayor (if confirmed) would be inclined to see protections for gay people in the Constitution, much less marriage rights.

So, we approach the court knowing that two are definitely anti-gay in their rulings, one is likely to be so, four have sympathy to gays who are excluded from due process but may not extend that sympathy to marriage, and two are an unknown quantity. This is not the court that I would like to approach with questions about my rights.

Considering that we have a deck stacked against us, we have to wonder at the wisdom of going to the Supreme Court at this time. Should we lose, it is a greater loss than a state\’s denial of equality. Should the Court reject our argument, not only will it set federal precedent that is likely to require decades to reverse, but it will give guidance to such other state courts as are approached with an appeal to our equality and liberty.

So I concur with Jim and with other prominent gay organizations that our best bet is to appeal to our neighbors and change hearts and minds before we go to the Supreme Court.

Today In History: Lawrence vs. Texas Begins Its Journey Through The Courts

Jim Burroway

November 20th, 2008

Ten years ago today, on November 20, 1998, John Geddes Lawrence and Tyrone Garner pleaded no contest to charges of violating the Texas “Homosexual Conduct” law which banned “deviant sexual intercourse with another individual of the same sex.” They were convicted of the Class C misdemeanor by a Justice of the Peace in Houston, and were fined $250 with an additional $141.25 in court costs.

That conviction led to a series of appeals: the Texas Criminal Court (which rejected the defense’s request to dismiss the charges), a three-judge panel of the Texas 14th Court of Appeals (which ruled the law unconstitutional), and the full nine-judge panel of the 14th Court of Appeals (which reversed the three-judge panel).

The appeals then reached the Texas Court of Criminal Appeals, which serves as Texas’s Supreme Court for criminal cases. That court refused to hear the case, which left the lower court’s decision standing.

Lawrence vs. Texas was then appealed to the U.S. Supreme Court, which agreed to hear the case. On June 26, 2003, the U.S. Supreme Court, in a 6-3 ruling, struck down the Texas anti-sodomy law, along with similar laws in twelve other states.

At last report, John Lawrence still works as a medical technologist in Houston. Tyrone Garner died in 2006 of meningitis.

CA Supremes to Decide Perhaps by the End of the Week

This commentary is the opinion of the author and may not necessarily reflect that of other authors at Box Turtle Bulletin.

Timothy Kincaid

November 11th, 2008

The Sacramento Bee is reporting:

The California Supreme Court could rule as early as this week on a lawsuit that seeks to invalidate Proposition 8, court spokeswoman Lynn Holton said today.

The decision this week would be whether to put a stay on the State’s enforcement of Proposition 8 until lawsuits could be heard. The lawsuits are based on the argument that Proposition 8 did not amend the Constitution, but rather revised it to do something materially different than it did before. In other words, this was not a change in how something is done but rather a change in an underlying principle of the Constitution: that all citizens are equal and that gay citizens cannot be excluded from the institutions of the State.

If the court finds that removing a fundamental right of a suspect population is a revision rather than an amendment, the process is different. It requires a two-thirds vote of the legislature before submission to the public.

Some scholars are of opinion that this suit is unlikely to prevail. But there are a few indicators – purely from observation and guesswork – that I find encouraging.

First, this court did not find, as some have, that the State did not provide adequate reason for excluding same sex couples. Rather, they found that gay persons are a suspect class and that all laws written for the express purpose of excluding gay persons or couples are presumed to be in violation of the Constitution and can only pass strict scrutiny if they are narrowly tailored to be the least restrictive means for achieving a compelling governmental interest.

Proposition 8 did nothing to invalidate the strict scrutiny requirements or equal protections provisions of the Constitution. And no one pretends that Prop 8 achieved even a vague government interest and it was inarguably greatly restrictive and broadly tailored. Thus, the proposition leaves the State Constitution in a state of internal conflict. The reading of this document now is “Gays cannot be excluded. Gays are excluded.” Such language is clearly nonsensical.

It leaves the legal scholar with a document that is not much different from that painted on the side of the barn in the Animal Farm, “All animals are equal, but some animals are more equal than others”.

Next, I’m going to speculate on how a judiciary views precedent. Regardless of the conclusions of a court, jurists hold them as concluded. Those who found other evidence to be compelling do not disagree with whether the court has decided or whether such decisions must be followed.

This court found by a 4-3 vote that gays are subject to strict judicial scrutiny and that marriage is a fundamental right. But – and this is the important part – even the three dissenting judges will uphold the position that marriage is now a fundamental right and that gays are now a suspect class. Once the conclusion is reached, it has the force of law and the backing of both supporters and dissenters.

That voters disagree about the fundamental nature of the right to marriage is not of importance to the dissenting judges. That 52% of voters don’t want gays to have equality does not make the suspect status of gays any less real – even to the dissenters. Those who sought to overturn the decision did not disagree with a few judges, but rather with the right of the court to determine who is included in the protections of the constitution – something that all jurists take seriously. Or so I hope.

Finally, and this may seem counterintuitive, these are not liberal activist judges. They did not come into their position with a “gay agenda” and use creative reading to find a “special right”. Six of the seven judges are Republicans, and they found that gay people are equal out of their understanding of constitutional protections. Their decision was based on their reasoning and contrary to what may have been initial prejudices. They will not be easily swayed by Party, ideology, or the whims of political winds. If they found marriage to be a fundamental right, a 52% vote of the populace is unlikely to cause them to no longer see such a right.

Now I may be unduly optimistic, but I have reason to hope that the California Supreme Court will invalidate Proposition 8. And I have a suspicion that the vote will be greater than 4 to 3.

Today In History: ONE Magazine versus the U.S. Post Office

Jim Burroway

January 13th, 2008

Today marks a very important milestone in LGBT history. Fifty years ago today, on January 13, 1958, the U.S. Supreme Court delivered its first ever pro-gay ruling in ONE Inc. v. Olesen, a landmark decision that allowed a magazine for gays and lesbians to be sent through the U.S. mail.

ONE, Inc. was founded by several members of the Los Angeles Mattachine Society who felt that a strong nationwide voice for education and advocacy was desperately needed. According to ONE, Inc.’s articles of incorporation, “…the specific and primary purposes … are to publish and disseminate a magazine dealing primarily with homosexuality from the scientific, historical and critical point of view, and to aid in the social integration and rehabilitation of the sexual variant.” But this wasn’t going to be just any magazine. Under the inaugural editorial leadership of Martin Block, Dale Jennings, Don Slater and Donald Webster Cory, ONE magazine was to be a first class product, a dramatic departure from the typewritten and mimeographed sheets which were more common at the time.

ONE, January 1953So when ONE debuted in January 1953, it sported a very sophisticated look, with bold graphics and professional typset and design. ONE’s slick offering quickly caught the attention gays and lesbians across the country, and circulation jumped to nearly 2,000 within a few months — with most subscribers paying extra to have their magazine delivered in an unmarked wrapper. Even still, ONE’s survival depended on the day jobs of its few contributors who typically worked under multiple pen names to make the staff appear larger to readers — and sometimes to protect their own identities.

By today’s standards, an early edition of ONE might look rather tame. There were no racy pictures, and even its fiction was mostly limited to depictions of longing and desire. There was rarely any evidence of physical contact in its pages. But what the magazine lacked in raciness, it made up for in audacity. ONE’s editorial tone was bold and unapologetic, covering politics, civil rights, legal issues, police harassment (which was particularly harsh in ONE’s home city of Los Angeles), employment and familial problems, and other social, philosophical, historical and psychological topics. And most importantly, ONE quickly became a voice for thousands of silent gays and lesbians across the U.S., many of whom wrote letters of deep gratitude to ONE’s editors. But in a sign of those times, all letters to the editor were published anonymously — from “m” in Winston-Salem, North Carolina or from “f” in Beaumont, Texas.

ONE filled a very critical role for gays and lesbians during a very dark time. ONE’s debut coincided with a major push to rid the U.S. civil service of homosexuals. President Dwight D. Eisenhower would sign Executive Order 10450 in April of that year, which barred gays and lesbians from federal employment with its “sexual perversion” clause. This followed a highly-publicized purge of more than 400 gays and lesbians from the civil service some three years earlier. Homosexuality was criminalized in every states, and it was stigmatized as a mental illness by the psychiatric profession. Gays were not only denounced as security risks, but risks to the very moral fiber of the nation. Homosexuals were treated as subversives, on par with the “Communist menace” on which leading politicians were staking their career. The FBI had launched a major crackdown on homosexuality across the U.S., with many gays and lesbians losing their jobs for merely receiving homophile publications in the mail. And vice squads everywhere were setting up entrapment stings in bars and other meeting places, where a simple proposition or touch could lead to arrest and public exposure.

ONE, August 1953So when ONE caught the eye of the FBI, they immediately launched an investigation to try to shut it down. They went so far as to write to the employers of ONE’s editors and writers (they all depended on their day jobs for income), saying that their employees were “deviants” and “security risks.” Fortunately, no one lost their jobs, the FBI decided it wasn’t worth their time, and ONE continued publishing.

The job of shutting down ONE then fell to the U.S. Post Office. Since its inception, Los Angeles postal authorities vetted each issue before deciding whether it was legal to ship under the Post Office’s stringent anti-obscenity standards. And since homosexuality was illegal in most states, ONE had the added problem of possibly being guilty of promoting criminal activity. The Post Office finally acted in August 1953, holding up that month’s issue for three weeks while deciding if it violated federal laws. (Ironically, the cover story for that issue was on “homosexual marriage,” an issue that is still contentious more than fifty years later.) Finally, officials in Washington decided the magazine didn’t violate federal laws and ordered the LA Post Office to release it for shipment.

ONE, October 1953ONE, true to its aggressive stance, reacted defiantly to that move in its October issue by proclaiming in an editorial printed on the cover, “ONE is not grateful”:

Your August issue is late because the postal authorities in Washington and Los Angeles had it under a microscope. They studied it carefully from the 2nd until the 18th of September and finally decided that there was nothing obscene, lewd or lascivious in it. They allowed it to continue on its way. We have been found suitable for mailing.

…But one point must be made very clear. ONE is not grateful. ONE thanks no one for this reluctant acceptance. It is true that this decision is historic. Never before has a governmental agency of this size admitted that homosexuals not only have legal rights but might have respectable motives as well. The admission is welcome, but it’s tardy and far from enough. As we sit around quietly like nice little ladies and gentlemen gradually educating the public and the courts at our leisure, thousands of homosexuals are being unjustly arrested, blackmailed, fined, jailed, intimidated, beaten, ruined and murdered. ONE’s victory might seem big and historic as you read of it in the comfort of your home (locked in the bathroom? hidden under a stack of other magazines? sealed first class?). But the deviate hearing of our late August issue through jail bars will not be overly impressed.

ONE’s editors knew they weren’t in the clear, but they didn’t know where their next threat would come from. That threat, it appears, may have come from the Senate Foreign Relations Committee Chairman Alexander Wiley (R-WI), who wrote a letter of protest to U.S. Postmaster General Aurthur Summerfield. Having run across the March 1954 issue (the cover story was “The Importance of Being Different”) Sen. Wiley registered a “vigorous protest against the use of the United States mails to transmit a so-called ‘magazine’ devoted to the advancement of sexual perversions.” Allowing a homosexual magazine to operate, he wrote, “(a) runs utterly contrary to every moral principle, (b) runs utterly contrary to our intentions to safeguard our nation’s youngsters, (c) likewise, it is the very opposite of the entire purpose of our governmental security program…”

ONE, October 1954The particulars of this action wasn’t known by ONE’s editors. But as defiant as ONE was in the October 1953 issue, they knew that the threat of closure due to censorship still loomed large — that is, if finances and distribution problems didn’t get to them first. Financial pressures forced them to skip the August and September 1954 issues and they had to extend everyone’s subscriptions by two months. To try to avoid future legal problems, ONE’s editors asked Eric Julber, their young straight lawyer fresh out of law school, to write a set of rules for the staff to follow in the hopes of staying out of trouble. When readers began to complain that ONE was too tame, the editors asked Julber to print his rules in the returning October 1954 issue with a cover declaring, “You Can’t Print It!” Those rules prohibited:

(1) Lonely hearts ads, seeking pen pals or meetings.

(2) “Cheesecake” art or photos. To readers who ask, “But how about all the girlie magazines?” I can only reply that in our society, visual stimulation of man by woman is tolerated to a far greater extent than attempted visual stimulation of man by man, for what is in law a criminal purpose.

(3) Descriptions of sexual acts, or the preliminaries thereto. Again here, what is permissible in heterosexual literature is not permissible in ONE’s context.

(4) Descriptions of experiences which become too explicit. I.e., permissible: “John was my friend for a year.” Not permissible: “That night we made mad love.”

(5) Descriptions of homosexuality as a practice which the author encourages in others, or waxes too enthusiastic about.

(6) Fiction with too much physical contact between the characters. I.e., characters cannot rub knees, feel thighs, hold hands, soap backs, or undress before one another. (All examples taken from recent contributions).

Pajamas AdJulber also insisted that he review each issue before it was sent to the publisher. But all this failed to keep ONE out of trouble — maybe because Julber didn’t strictly enforce his own rules, allowing the October 1954 issue to be arguably the raciest to date. The very same issue which ran Julber’s rules also featured a fictional short story called “Sappho Remembered,” in which two young lovers touched four times, declared their love for each other, and the story had a happy ending. Another feature, a poem, made light of the arrest of several British public figures (including actor John Gielgfud) on “morals” charges (“Lord Samuel is a legal peer / (While real are Monty’s curls!) / Some peers are seers but some are queers / And some boys WILL be girls.”). And there were two ads — one for a Swedish magazine (which, postal officials charged, meant that ONE was advertising “obscene materials”) and another for men’s pajamas and intimate wear.

That was enough for the Los Angeles Post Office to seize that issue — the one with “You Can’t Print It!” on the cover — and charge the editors with violating the 1873 Comstock Act, which prohibited sending “obscene, lewd, and/or lascivious” material through the mail.

The editors were eager to sue the Post Office, but ONE’s financial condition was so perilous that they held off for nearly a year. Julber took the case for free and looked for help from the ACLU, but they wouldn’t touch it — the ACLU was still defending anti-sodomy laws at the time. Finally it was up to young Julber alone to argue ONE’s case in federal district court that the magazine was educational and not pornographic. It didn’t go well. The judge ruled for the Post Office in March 1956, and the 9th Circuit Court of Appeals agreed in February 1957, calling ONE “morally depraving and debasing” and saying that the magazine “has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of persons reading it.”

ONE then took its case to the U.S. Supreme Court. To everyone’s surprise, the Court agreed to take the case, its first ever dealing with homosexuality. Even more surprising, the Supreme Court issued its short, one-sentence decision on January 13, 1958 without hearing oral arguments. That decision not only overturned the two lower courts, but the Court expanded the First Amendment’s free speech and press freedoms by effectively limiting the power of the Comstock Act to interfere with the written word. As a result, lesbian and gay publications could be mailed without legal repercussions, though many continued to experience harassment from the Post Office and U.S. Customs.

ONE, February 1958Editor Don Slater celebrated the ONE decision in the February 1958 issue:

By winning this decision ONE Magazine has made not only history but law as well and has changed the future for all U. S. homosexuals. Never before have homosexuals claimed their right as citizens. Not even the Berdache, nor the Greeks, nor the Napoleonic Code, nor Wolfenden “recommendations,” nor The American Law Institute “recommendations” have managed to mean so much to so many. ONE Magazine no longer asks for the right to be heard; it now exercises that right. It further requires that homosexuals be treated as a proper part of society free to discuss and educate and propagandize their beliefs with no greater limitations than for any other group.

…The New York Times has this to say about the decision: “The court today reversed a post office ban on a magazine, One, which deals with homosexuality. The petition for review filed by the lawyer, Eric Julber of Los Angeles, had apparently raised only one question: was the magazine ‘obscene’ within the statute banning importation of obscene matter? The court’s order appeared to answer: No.”

True to its educational mission, ONE, Inc founded the One Institute as an educational arm in 1956. In 1958, the ONE Institute Quarterly became the first academic journal on gay and lesbian studies in America. ONE magazine’s last issue was in 1967 following a very long and acrimonious split in ONE, Inc.’s governing board. Today, the ONE National Gay and Lesbian Archives houses the world’s largest research library on Gay, Lesbian, Bisexual,and Transgender history near the main campus of the University of Southern California in Los Angeles.

Sources: Courting Justice: Gay Men and Lesbians v. the Supreme Court, by Joyce Murdoch & Deb Price.

ONE magazine, October 1953, October 1954, February, 1958.

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