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Hunter of Justice http://hunterofjustice.com a blog about sexuality, gender, law and culture Sat, 07 Sep 2013 01:40:29 +0000 en-US hourly 1 The Supreme Court’s next abortion case http://hunterofjustice.com/2013/09/the-supreme-courts-next-abortion-case.html?utm_source=rss&utm_medium=rss&utm_campaign=the-supreme-courts-next-abortion-case http://hunterofjustice.com/2013/09/the-supreme-courts-next-abortion-case.html#comments Sat, 07 Sep 2013 01:40:29 +0000 Nan Hunter http://hunterofjustice.com/?p=4624 Supreme Court
Supreme Court

A gloomy forecast, by Linda Greenhouse:

Justice Anthony M. Kennedy, author of the 5-to-4 opinion in June that struck down the Defense of Marriage Act, may well be a hero to the gay rights community, and deservedly so. But he’s also the author of the 5-to-4 opinion that upheld the federal ban on so-called partial birth abortion back in 2007, and abortion-rights advocates have viewed with something close to dread the prospect that he could play a similarly decisive role in the Supreme Court’s next abortion case.

That case has arrived.

It’s understandable if you haven’t heard of Cline v. Oklahoma Coalition for Reproductive Justice, which has received relatively little attention since the court accepted it on June 27, the day after the term ended. The lack of attention is itself understandable.

The case is an appeal by the state of Oklahoma from a ruling by its Supreme Court striking down a law that limits doctors’ ability to prescribe the pills used to terminate early pregnancies. The medical abortion regimen, often referred to as RU-486, was approved by the Food and Drug Administration in 2000 as a safe and effective alternative to surgical abortion early in the first trimester. It has been used since then by close to two million American women, currently about 200,000 a year out of some 1.2 million abortions performed annually. The Oklahoma law doesn’t ban the medical procedure. Rather, it requires doctors to follow the dosage and other instructions on the F.D.A. label. Viewed outside its context in the battle over abortion, the law looks perfectly sensible, a routine state regulation of medical practice. (Spoiler alert: it isn’t.)

Further muddying the waters, the case is procedurally messy. While accepting it, the justices deferred scheduling it for argument until they receive clarification from the state court about what medications the somewhat ambiguously worded statute applies to. A request to another court for clarification, known as a certified question, is not unheard-of at the Supreme Court, but it is unusual. It gives the court’s order granting review a tentative look, as if the justices are less than fully committed to deciding the case. It’s possible that after receiving the state court’s answer (there is no deadline, but the state court has invited briefs from interested groups and is likely to hear argument in October), the justices will decide not to proceed.

Possible but not, I think, likely. This case simply presents too tempting a target, for the very reasons that lie behind the emergence of this seemingly technical dispute about medical practice. At issue is the Supreme Court’s own unstable abortion doctrine, specifically on where five justices might be willing to draw a line between acceptable and impermissible obstacles to access to abortion.

While not everything about the case is clear yet, one aspect is perfectly obvious: the court’s grant of review was no casual matter. Some justice or group of justices (it takes four votes to accept a case) spotted this case as a potential vehicle for saying something bigger about abortion and its regulation. By the same token, it’s no accident that medical abortion (or medication abortion, as it is also known) is the latest flash point in the abortion debate. That may be counterintuitive, given the prolonged hand-wringing over “partial-birth” and other “late-term” abortions; medical abortion is most effective in the first six or seven weeks of pregnancy (by which time the embryo is about the size of a pencil eraser) and doesn’t work after nine weeks (still in the first trimester, which is when about 90 percent of all abortions take place).

But if you think about it, it’s evident why opponents of abortion have begun to focus on the early nonsurgical procedure. Medical abortion is the ultimate in women’s reproductive empowerment and personal privacy. All it takes are two pills: mifepristone, sold as Mifeprex, which blocks the hormone progesterone, without which a pregnancy can’t continue, and misoprostol, taken two days later, which causes the uterus to contract and expel the early pregnancy. In many states, women can take the second pill at home.

As abortion clinics are forced to close because of onerous state regulations (54 clinics in 27 states have closed in the last three years, and many women live hundreds of miles from the nearest provider) and as women entering clinics often have to run a gauntlet of protesters seeking to “counsel” them (in its new term, the Supreme Court will hear a First Amendment challenge to a Massachusetts “bubble zone” law that keeps speakers 35 feet away from the entrance to a “reproductive health care facility”), medical abortion offers an end-run around the obstacles that for years have been a core part of opposition strategy.

That’s why, for example, 17 states have recently passed laws or issued regulations barring doctors from using video conferencing — “telemedicine” — to prescribe the abortion pills. Although video conferencing is increasingly popular in other medical settings, abortion is the only context in which states have sought to ban it. For a medical abortion, a nurse examines the woman by ultrasound as the doctor views the results over a video link. Having determined the stage of the pregnancy, the doctor then advises the woman on what to expect from the medication and dispenses the pills by sending a command that opens a drawer in the office. After taking the sequence of pills, the woman returns two weeks later for a follow-up visit.

Some 8,000 women in Iowa have used this procedure, which was pioneered in the state by Planned Parenthood and authorized in 2011 by the Iowa Board of Medicine. The board reversed itself last week. It acted on a petition from anti-abortion groups and with the support of Gov. Terry Branstad, an abortion opponent whose appointees to the board include a Catholic priest, Msgr. Frank Bognanno. Governor Branstad’s declaration that the video ban will “protect the health and well-being of Iowa women” had a familiar ring. Protecting women is always the stated rationale for new restrictions on abortion, even when the rationale is — as in Iowa, and as in the Oklahoma case before the Supreme Court — hogwash.

The law at issue in the Supreme Court case wasn’t drafted in Oklahoma. It was written in Chicago by an influential anti-abortion organization, Americans United for Life, and included as the “Abortion-Inducing Drugs Safety Act” among 30 model laws made available for sponsorship by state legislators. In the name of patient safety, the statute makes it a crime for doctors to deviate from the dosage and other instructions published by the Food and Drug Administration when it approved the medication in 2000.

The problem is that after 13 years, with millions of medical abortions having been provided in Europe and Asia as well as the United States, medical opinion about the appropriate dosage and other aspects of administering the drugs has evolved, as it often does after a new medication enters widespread use. Instead of 600 milligrams of Mifeprex, doctors now use only 200. While the original F.D.A. label specified that the drugs should be used only up to 49 days of pregnancy, doctors have found the regimen safe and effective for up to 63 days — nine weeks of pregnancy. Instead of requiring a second office visit for the second drug, as specified by the F.D.A., doctors now often give the patient the second drug to be taken at home, saving her an unnecessary trip. The 200-milligram regimen is so widely accepted that the 600-milligram dose is now considered bad medicine, and many doctors would refuse the procedure entirely rather than follow the old guideline.

Post-approval modifications in the way doctors use drugs are known as off-label uses. Off-label usage is extremely common, permitted by federal law. Prescribing anti-depressants to treat nerve pain and menopausal hot flashes is one current example. What’s unusual about the medical abortion situation is that doctors are simply prescribing less of an approved drug for its approved use, rather than turning a drug to a different use altogether.

In the Oklahoma case, a state trial judge, Donald L. Worthington, reviewed the evidence and found that the lower dose of Mifeprex was being used “in a great majority of cases of medication abortions in the United States” and had been “demonstrated by scientific research to be safer and more effective” than the original F.D.A.-approved dose. Requiring doctors to use the higher dose, the judge concluded in an opinion in May of last year, was “so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.” The Oklahoma Supreme Court affirmed the decision last December.

Unlike the trial judge’s eight-page opinion, however, the state high court’s unanimous three-paragraph opinion offered no analysis. It simply declared that “this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey,” a decision that “remains binding on this court until and unless the United States Supreme Court holds to the contrary.”

Planned Parenthood v. Casey was the 1992 decision that reaffirmed the basic right to abortion while also permitting states to adopt new restrictions. In its opinion, which Justice Kennedy joined, the court said it would permit restrictions that did not impose an “undue burden,” defined in the opinion as “a state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” More than two decades later, all the important words in that definition of undue burden remain contested. What kind of obstacle is “substantial”? What is a prohibited “effect”? To the present point: does the court really care about “purpose” — the real purpose behind an abortion restriction — or is it satisfied by a state’s counter-factual claim that the purpose is to protect women?

In a brief he filed three weeks ago to the Oklahoma Supreme Court, E. Scott Pruitt, the state’s attorney general, said the legislature’s purpose “was to solve the problem of physicians using potentially dangerous unapproved protocols.” Really? Requiring doctors to prescribe three times more of a drug than they think is called for is a safety improvement? When Gov. Mary Fallin signed the bill in May 2011, she was more candid, calling it “a critical part of our effort to promote the cause of life.” Does candor matter to the Supreme Court?

It didn’t to Justice Kennedy when he wrote the partial-birth abortion majority opinion in 2007. He accepted as fact a claim for which there was no valid basis: that the prohibited procedure placed women at special jeopardy for acute post-abortion regret, “grief more anguished and sorrow more profound,” as he put it. As evidence, he cited a brief filed on behalf of “180 Women Injured by Abortion,” a document filled with personal “affidavits” by women who described vividly how sorry they were for having had terminated their pregnancies (notably, few actually discussed any particular method of abortion).

Lo and behold, the new case has brought with it to the Supreme Court a “Brief of Women and Families Hurt by RU-486,” filed in support of the state’s appeal by the same lawyer who organized and filed the earlier brief. It, too, contains personal testimonies, although not one actually says anything on the question before the court of more Mifeprex or less.

Not knowing Oklahoma judicial politics, I can only guess at the reason for the state court’s failure to analyze the case instead of invoking Planned Parenthood v. Casey is a purely conclusory fashion. At the least, the three-paragraph opinion was odd. Were the Oklahoma justices simply ducking for cover under the shadow of Casey? Or were they inviting, even prodding, the Supreme Court to reconsider Casey? Along with Justice Kennedy, Justice Sandra Day O’Connor was also a member of the five-justice majority in 1992. With Justice O’Connor replaced by Justice Samuel A. Alito Jr., there may no longer be a majority on the court to strike down any burden on access to abortion, even one that is obviously and purposefully “undue.” All that binds the current court to the Casey standard — whatever that standard can be said to mean today — is stare decisis, respect for precedent. As the Roberts court begins Year 9, that may not count for much.
 

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In Memoriam: Jose Julio Sarria http://hunterofjustice.com/2013/08/in-memoriam-jose-julio-sarria.html?utm_source=rss&utm_medium=rss&utm_campaign=in-memoriam-jose-julio-sarria http://hunterofjustice.com/2013/08/in-memoriam-jose-julio-sarria.html#comments Tue, 20 Aug 2013 23:00:58 +0000 Nan Hunter http://hunterofjustice.com/?p=4604 Sarria1961campaign 1
 

The first American to seek public office as an openly gay candidate – Jose Julio Sarria of San Francisco – died today at the age of  91. Sarria ran for the San Francisco Board of Supervisors in 1961. His ninth place finish – out of more than 30 candidates – stunned the city and opened the path for Harvey Milk and later candidates.

From GLAAD

…San Diego City Commissioner Nicole Murray Ramirez, a close friend of Mr. Sarria’s and a long time Latino Gay Activist stated “José Julio Sarria was indeed the Rosa Parks of the gay rights movement as an activist in the 1950s and 1960s.”

Mr. Sarria was born in San Francisco, California on December 22, 1922 as the only child of Maria Delores Maldonado of Colombia and Julio Sarria of San Francisco. Upon his graduation from Commerce High School in San Francisco he immediately enlisted in the US Army during World War II, rising to the rank of Staff Sergeant prior to his discharge in 1945…

After his discharge from the Army, José became one of the most famous drag queen entertainers in San Francisco. Most notable were his one-person operas at the historic Black Cat Bar in the 1950s and 1960s. In 1965 Jose declared himself “Empress Jose I, The Widow Norton” after winning a drag queen competition at the Tavern Guild’s “Beaux Arts Ball”. With that proclamation, the first Court Chapter of the International Court System was established.

Russell Roybal, First Imperial Grandson to Empress I José, The Widow Norton and Deputy Executive Director for the National Gay and Lesbian Task Force remembers his incredible work for the LGBT community, but also the personality he brought to his personal life and performances. “Words cannot express what a tremendous loss I feel today on the passing of José Sarria. He is an icon of the LGBT community, a hero, a mentor and a friend. José brought laughter, camp and fun to all of our lives and to the struggle not just for gay and lesbian liberation, but for all people. His legacy as a gay Latino leader, activist and drag queen will live on for all of us who share his commitment to the communities from which we come.”

Sarria took what had been a loose alliance of social groups and developed it into what now is the International Court System of the United States, Canada and Mexico with associated Chapters in over 68 cities across the three nations. “The Imperial Courts are like the gay Shriners/Elks of North America and have raised millions of dollars for charities these last 48 years, “stated City Commissioner Nicole Murray Ramirez who succeeded Sarria in 2007 as the International Chairperson of this fraternal LGBT charity organization. In 1961, Sarria helped to form the League for Civil Education, one of the first gay rights organizations in the country and the first gay non-profit registered in California. In 1963 he co-founded the Society for Individual Rights (SIR).

Stuart Milk of the Harvey Milk Foundation says that the passing of Mr Sarria marks a significant moment in gay history. “José Sarria, founder of the International Court System showed us how to turn a night into a grand occasion and a grand occasion into a means of providing support. That support led so many who did not “fit in” to actually proudly stand out, together, creating a local sense of community and an international network that would raise hundreds of thousands of dollars for local and major charities…”

In 2006, after a campaign led by City Commissioner Nicole Murray Ramirez, Supervisor Bevan Dufty and the International Court Council, the City of San Francisco renamed a section of 16th Street in the Castro neighborhood as José Sarria Court thus becoming the first openly gay citizen to have a city street named after him in San Francisco.

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New issue for Supreme Court: Can private businesses claim religious exemptions? http://hunterofjustice.com/2013/08/new-issue-for-supreme-court-can-private-businesses-claim-religious-exemptions.html?utm_source=rss&utm_medium=rss&utm_campaign=new-issue-for-supreme-court-can-private-businesses-claim-religious-exemptions http://hunterofjustice.com/2013/08/new-issue-for-supreme-court-can-private-businesses-claim-religious-exemptions.html#comments Sat, 17 Aug 2013 01:22:19 +0000 Nan Hunter http://hunterofjustice.com/?p=4575 Christian Stores2

It now seems almost certain that something I predicted in December will occur: within the coming year, the Supreme Court will decide whether private, for-profit businesses can claim a religious opt-out from a generally applicable law based on the religious beliefs of the owners. If the Court rules that such a claim is permissible, there will be far-reaching ramifications, including for civil rights laws that include protections for lgbt people.

The cases most likely to first reach the Supreme Court involve businesses that want an exemption from the requirement under the health reform law that workplace health insurance plans cover contraceptive services. There are now two circuits in conflict on this point, in these cases: Conestoga Wood Specialties v. Secretary of Health and Human Services  (Third Circuit) (ruling that business could not claim exemption) and Hobby Lobby Stores v. Sebelius (Tenth Circuit) (ruling the opposite) . Attorneys in the first case have already announced that they will file a cert petition.

Meanwhile, waiting for the other shoe to drop – A case raising the same question in a public accommodations context is pending decision before the New Mexico Supreme Court.  If the defendant there – a photography studio that refused to record a commitment ceremony – loses, you can bet that there will be a cert petition filed. The same conservative legal group that represents the defendant in New Mexico is filing the petition in the health reform case. The state supreme court decision could be announced at any time.

From SCOTUSblog:

[The issue]  will confront the Justices for the first time with the scope of religious rights — if any — that a business firm may claim, seeking protection under the First Amendment.

More than sixty lawsuits have been filed in federal courts around the country, challenging the so-called contraception mandate written into the Affordable Care Act. Applying to employers with more than fifty employees, the mandate requires health insurance that covers a variety of birth control and reproductive health screening measures. The lawsuits have been pursued on religious grounds both by non-profit colleges and hospitals, as well as by profit-making business firms.

The Obama administration has mounted a vigorous defense of the mandate across the country, and the mandate’s challengers have been equally energetic in seeking to nullify it as a deep intrusion on religious freedom. The administration has written implementing rules that seek to protect some religious institutions, but the exemptions do not go far enough to satisfy some non-profit entities, and are not available at all to profit-making businesses…

The Third Circuit case … involves a Pennsylvania corporation that makes wooden cabinets. All of its stock is owned by the Hahn family, who practice the Mennonite faith…

The U.S. Solicitor General will be making the decision whether to ask the Supreme Court to review the Tenth Circuit decision. That ruling found that the contraception mandate intruded unconstitutionally on the religious rights of two family-owned Oklahoma corporations — Hobby Lobby, which runs a chain of retail crafts stores, and an affiliated retailer of Christian literature.

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Study finds cross-cultural link between religiosity and anti-gay opinion http://hunterofjustice.com/2013/08/study-finds-cross-cultural-link-between-religiosity-and-anti-gay-opinion.html?utm_source=rss&utm_medium=rss&utm_campaign=study-finds-cross-cultural-link-between-religiosity-and-anti-gay-opinion http://hunterofjustice.com/2013/08/study-finds-cross-cultural-link-between-religiosity-and-anti-gay-opinion.html#comments Fri, 09 Aug 2013 02:54:07 +0000 Nan Hunter http://hunterofjustice.com/?p=4581 Pew map

A  study of public opinion in 39 nations found that acceptance of homosexuality is particularly widespread in countries where religion is less central in people’s lives. The Pew Foundation reported strong support for social acceptance in the European Union, Latin America, North America,  and Australia, areas that also report the lowest religiosity scores. Among the few outliers were the Philippines (high religiosity but strong support for gay acceptance) and China and Russia (low religiosity, also low support).

The Global Divide on Homosexuality also reports that levels of social acceptance have been stable in most countries in recent years.  The United States, where social acceptance has increased dramatically since 2008, is one of only three countries where there has been significant change during that period.  The other two are Canada and South Korea.

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Marriage (litigation) is breaking out all over http://hunterofjustice.com/2013/07/marriage-litigation-is-breaking-out-all-over.html?utm_source=rss&utm_medium=rss&utm_campaign=marriage-litigation-is-breaking-out-all-over http://hunterofjustice.com/2013/07/marriage-litigation-is-breaking-out-all-over.html#comments Thu, 01 Aug 2013 02:16:20 +0000 Nan Hunter http://hunterofjustice.com/?p=4530 Flickr NinJA999 Flickr creative commons

Since the Supreme Court ruled the Defense of Marriage Act unconstitutional a month ago, gay marriage litigation is growing like weeds in a vacant lot. Some cases were pending when Windsor was decided, some have been filed since then, and at least two involve what will probably become the biggest single category: cases that arise in the context of death or divorce when courts have to decide who qualifies as a surviving spouse.

Farthest along – The cases most likely to reach the Supreme Court next are two brought by Lambda Legal that are pending in the Ninth Circuit. Sevcik v. Sandoval from Nevada and Jackson v. Abercrombie from Hawaii challenge the same-sex marriage bans of their respective states. Both district courts ruled against the plaintiffs last year, and the Ninth Circuit put the cases on hold until the Supreme Court marriage decisions.

In Sevcik the plaintiffs are four couples who were denied marriage licenses in Nevada, and four couples married in California and Canada who seek recognition for their marriages in Nevada. The plaintiffs argue that Nevada’s civil unions law, which grants most of the same rights to same-sex civil unions as marriage, demonstrates the irrationality of the legal separation in Nevada between civil unions and marriage. Similarly in Abercrombie, the plaintiffs include a couple that was denied a marriage license, even though Hawaii allows civil unions between same-sex couples.

In other words, these two states have marriage equivalent statutes that grant material benefits to gay couples, but withhold the term “marriage.” They are similar to the California situation after Prop 8 was adopted. Because the Supreme Court disposed of Prop 8 on standing grounds and also vacated the Ninth Circuit opinion in that case, there is much less significant precedent for these cases than there would have been had the Court reached the merits in Perry.

Hitching a Ride – Three cases that also pre-date the Windsor decision initially focused on other issues. An Oklahoma case filed in 2004 challenged both DoMA and the state’s ban; it was stayed pending resolution of the other DoMA cases.  DeBoer v. Snyder (Michigan) and Fisher-Borne v. Smith (North Carolina) began with same-sex couples suing for adoption rights. However, the plaintiffs in DeBoer are also challenging Michigan’s same-sex marriage ban in the lawsuit, and the ACLU has recently requested leave to amend the complaint in Fisher-Borne to add a challenge to North Carolina’s same-sex marriage ban. All three of these cases are in federal district courts.

Newbies – Both the legal organizations and private plaintiffs are bringing new suits in several states. After an ACLU case was filed in Pennsylvania, the state attorney general declined to defend the law, leaving that task to the governor. In Virginia, a joint ACLU-Lambda class action challenge will join another Virginia case brought by a couple on their own last week. Similarly, couples in Kentucky and Arkansas have also filed challenges. 

Incidents of Marriage – Since marriage itself is not a judicial proceeding, there typically is no need for a formal ruling about whether a particular marriage is valid. Exceptions usually arise in the context of death or divorce. There have already been two rulings based on Windsor about whether a gay partner should qualify as a surviving spouse. In an Ohio case, a federal judge ruled that the state had to recognize a Maryland marriage when registering a death certificate; the Ohio Attorney General will not appeal. In Pennsylvania, a judge found that the survivor of a couple married in Canada and residing in Illinois was entitled to benefits of a Pennsylvania employer’s life insurance plan, because such plans are regulated by federal law. Because Illinois treats foreign marriages as civil unions, with all the benefits of marriage, the judge found that the Canadian marriage was recognized under the law of the state of the decedent’s residence (Illinois). Confusing? There are going to be many, many more conflict of laws cases.

State Courts -Three state court systems also have pending marriage litigation.  In Illinois and New Jersey, the challenges pre-date Windsor, and the plaintiffs have filed summary judgment motions. In New Mexico, mandamus petitions have been filed in the state supreme court seeking a clarification that the state recognizes same-sex marriages performed in other states. In a fourth state, Montana, the ACLU is seeking provision of all material benefits of marriage, though not the designation.

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Rogue sheriff “enforces” unconstitutional law; Update: the apology http://hunterofjustice.com/2013/07/rogue-sheriff-enforces-unconstitutional-law.html?utm_source=rss&utm_medium=rss&utm_campaign=rogue-sheriff-enforces-unconstitutional-law http://hunterofjustice.com/2013/07/rogue-sheriff-enforces-unconstitutional-law.html#comments Mon, 29 Jul 2013 18:22:20 +0000 Nan Hunter http://hunterofjustice.com/?p=4522 eqm 20110808 sodomy

Since Lawrence v. Texas was decided 10 years ago, laws prohibiting oral or anal sex (sodomy) have been unconstitutional.  And it is a pretty basic precept that asking someone to engage in a lawful act cannot itself be unlawful.  Except, apparently in Louisiana. The Baton Rouge Advocate reports that the local sheriff’s office is using the Louisiana sodomy law to target men in a local gay cruising area, not for public sex, but for private conversations. The local district attorney is refusing to prosecute any of those arrested. Somebody’s gonna get sued — I hope.

UPDATE – The sheriff has now apologized.  I’m still waiting for that lawsuit.

An undercover East Baton Rouge Parish sheriff’s deputy was staking out Manchac Park about 10 a.m. one day this month when a slow-moving sedan pulling into the parking lot caught his attention. The deputy parked alongside the 65-year-old driver and, after denying being a cop, began a casual conversation that was electronically monitored by a backup team nearby.

As the two men moved their chat to a picnic table, the deputy propositioned his target with “some drinks and some fun” back at his place, later inquiring whether the man had any condoms, according to court records. After following the deputy to a nearby apartment, the man was handcuffed and booked into Parish Prison on a single count of attempted crime against nature.

There had been no sex-for-money deal between the two. The men did not agree to have sex in the park, a public place. And the count against the man was based on a part of Louisiana’s anti-sodomy law struck down by the U.S. Supreme Court a decade ago.

The July 18 arrest is among at least a dozen cases since 2011 in which a Sheriff’s Office task force used the unenforceable law to ensnare men who merely discussed or agreed to have consensual sex with an undercover agent, an investigation by The Advocate has found.

District Attorney Hillar Moore III said his office refused to prosecute each one of the cases because his assistants found no crime had occurred. After inquiries from the newspaper last week, he arranged to meet with Sheriff’s Office investigators to discuss the implications of the Supreme Court ruling.

Casey Rayborn Hicks, a Sheriff’s Office spokeswoman, denied that investigators had been misapplying the anti-sodomy law, which remains among the state’s criminal statutes.

“This is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing the laws passed by our Louisiana Legislature,” Hicks said. “Whether the law is valid is something for the courts to determine, but the sheriff will enforce the laws that are enacted.”

Moore noted that public sex acts and the solicitation of “unnatural carnal copulation” for money remain illegal. But those elements were lacking from these 12 cases, and most of the men were arrested after agreeing to have sex away from the park at a private residence.

“The Sheriff’s Office’s intentions are all good,” Moore said. “But from what I’ve seen of these cases, legally, we found no criminal violation.”

Advocates for civil rights and the LGBT community expressed outrage last week, saying the task force unfairly targeted gay men who were humiliated by their arrests. “It is frustrating that the police are using their resources to pursue issues like this and arrest people for attempting to pick someone up and go home with them,” said Bruce Parker, of Equality Louisiana. “It’s perfectly legal, and we would have to close down every bar in Baton Rouge if that weren’t the case.”

Hicks took issue with that analogy, saying a park “is not the place to initiate or attempt to initiate sexual relations.”

“The issue here is not the nature of the relationship but the location,” she said. “These are not bars. These are parks. These are family environments.”

Others advocating for the lesbian, gay, bisexual and transgender community said there should be no ambiguity over the legality of same-sex relations.

“It’s really unfortunate that police are continuing to single out, target, falsely arrest and essentially ruin the lives of gay men in Baton Rouge who are engaged in no illegal conduct,” said Andrea J. Ritchie, a civil rights attorney.

Peter Renn, an attorney with Lambda Legal, the prominent gay rights organization, said the pattern of “unlawful arrests over multiple years” suggests authorities are using the stings as a means to harass gay men.

“The fact that this has been going on for a two-year period is unbelievable,” Renn said. “This is basically like the police putting up a sign that says ‘Please sue me.’ ”

Tommy Damico, a defense lawyer who represents the man arrested this month, said he had been prepared to challenge the attempted crime against nature charge under the 2003 U.S. Supreme Court ruling in Lawrence v. Texas, which legalized same-sex sexual activity. Moore, however, said he has already decided formal charges will not be brought in the case.

“For the Sheriff’s Office to be setting these kinds of sting operations up is a waste of time because they can’t prosecute these things,” Damico said. “I think the statute itself has incredible problems.”

Hicks said deputies arresting the men in these cases swore affidavits of probable cause that were “presented to a judge for review to set a bond.

“In the cases we discussed, bond was set,” she said. “In effect, the judges concurred that there was probable cause for an arrest.”

Louisiana’s crime against nature statute — R.S. 14:89 — has a long and controversial history dating to 1805. It is still used today in part to criminalize bestiality, as evidenced in 2010 when local authorities charged a man seen trying to have sex with a dog.

But the statute also includes language banning “the unnatural carnal copulation by a human being with another of the same sex or opposite sex.” That prohibition, however, was struck down by the U.S. Supreme Court, a ruling that prompted then-state Attorney General Richard Ieyoub to issue a statement saying the state’s anti-sodomy law would be unenforceable except for provisions banning sodomy for compensation and sex with animals.

“If two adult men can have consensual oral sex in private, they can invite another adult man to do that in private,” said William Eskridge, the Yale Law School professor. “So even if there were a verbal offer and acceptance, it would be constitutionally protected, so long as no money was involved and the men were of age.”

The 12 arrests were made by the Special Community Anti-Crime Team, a Sheriff’s Office task force that also conducts prostitution stings and Internet operations targeting child predators.

Its surveillance of parks comes in response to complaints of lewd conduct.

Hicks said the operations that led to two arrests this year came after the park ranger telephoned the task force commander directly.

Cheryl Michelet, a spokeswoman for the Baton Rouge Recreation and Park Commission, said the parks have “not had a number of complaints on this issue.”

Hicks said there is not a “rampant problem” because undercover investigations have deterred sexual activity. One man, for instance, was caught masturbating in the woods at Manchac Park last year and was charged with obscenity.

Manchac Park has long been known as a popular rendezvous for gay men “cruising” for anonymous sex. In 2005, Sheriff’s Office spokesman Fred Raiford declared that “people can’t walk down the trails (of the Blackwater Conservation Area) because there is too many people in there soliciting sex.”

In 2007, the Baton Rouge Police Department conducted a sting at Forest Park and summarized the results in a news release that listed five people arrested on various counts — including four booked with crime against nature or attempted crime against nature. Court records show one of the men was charged with possession of marijuana, while another ultimately pleaded guilty to disturbing the peace.

Tulane University professor Peter Scharf said these operations raise questions about how local law enforcement is using resources at a time of high violence and increasing acceptance of gay rights.

“In the current cultural climate, who would be shocked or offended” by same-sex relations, Scharf asked. “I think we’re past that now, so it’s a question of how do you align police tactics with the norms.”

Even before the sea change brought about by the Supreme Court ruling, jurors had shown skepticism about the local stings.

A man arrested in the late 1990s was acquitted at trial as jurors puzzled over whether the undercover deputy or suspect initiated the sexual discussion. “I saw it as entrapment,” the jury foreman said at the time.

Most men arrested in recent stings are middle aged or older and have apparently not told their family and friends about their sexual orientation.

“I’m assuming they think the large majority of people are just going to plead guilty and pay some fine,” said another 65-year-old man who was arrested in February 2011 and had his charges dropped because in that instance, the arrest was unjustified. The man, who spoke on the condition of anonymity, did admit he has had sex with men in the past at Manchac Park.

“The whole procedure of being arrested and being brought to jail is just intimidation,” he said. “I’ve tried to block everything I possibly can about it out of my consciousness.”

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Whither judicial minimalism? http://hunterofjustice.com/2013/07/whither-judicial-minimalism.html?utm_source=rss&utm_medium=rss&utm_campaign=whither-judicial-minimalism http://hunterofjustice.com/2013/07/whither-judicial-minimalism.html#comments Fri, 26 Jul 2013 02:54:34 +0000 Nan Hunter http://hunterofjustice.com/?p=4499 Hunter Of Justice
 

There is virtually no dispute among elite voices in the law – of the political left or right – that the courts that adjudicate best are those that adjudicate the least number of questions necessary to resolve a dispute. Consider the call of leftist Professor Mark Tushnet to take power away from the courts, to the endorsement of judicial minimalism by the philosophically bloodtype-O Professor Cass Sunstein, to the disingenuous statement by Chief Justice Roberts during his confirmation hearings that judges should function merely as umpires. In that context, Linda Greenhouse reports the surprising news that Chief Justice Roberts now acknowledges this credo as something less than a universal normative good.

Following are comments made by the Chief to judges at the conference of the Fourth Circuit Court of Appeals about the possible shortcomings of having all but one of the Supreme Court’s Justices come from prior service as a federal appellate court judge. 

[Circuit Court Judge J. Harvie Wilkinsons III] ask[ed] Chief Justice Roberts what difference it makes to have so many former judges on the court (“technocrats,” was the word the judge used at one point) as opposed to the statesmen and political leaders of the past. For example, as the audience well knew, Chief Justice Earl Warren, never a judge, was a political figure who loomed large in the country at the time of his appointment, a three-term governor of California and a vice-presidential candidate on a national Republican ticket.

Chief Justice Roberts’ response to Judge Wilkinson’s question was perhaps more than the questioner or the audience expected. It was nuanced and complex, unusually reflective – perhaps unintentionally so — from someone who typically reveals little of himself in his off-the-bench appearances. I will quote his comments here in full…

“That has to have some impact on how the court looks at its work, and I just don’t know yet whether it’s a positive one or not. If you think the job of the Supreme Court really is trying to apply law to particular cases, maybe it makes sense to have a court of judges.

“If you view it more in terms of playing a political role – not in a partisan politics sense, but as part of the political process, maybe the way a constitutional court in the European countries does – well, then maybe it makes sense to have people who’ve been active in the political realms, either in the executive branch or in the legislative branch. It has to be saying something about the role of the court in terms of what the makeup is.

“You see it in the arguments as well. We have a very good bar. They present legal arguments. If you go back and look at briefs that were filed in the Warren Court era, they sweep more broadly. They paint with a broader brush in terms of social policy concerns. It reflected the audience they were in front of.

“People can and should debate whether or not that’s a good development. I think one consequence of it – it’s probably a good development if you have a particular sense of what types of issues should be presented to the Supreme Court, but a different sense of whether it’s good or bad if you think particular different types of issues should be before the Supreme Court.

“So I think it’s all interrelated: the nature of the legal arguments, the background of the justices, the types of issues that are being presented. It is, I think, a very interesting development that people need to think about.

“If you’ve been a president, if you’ve been a governor, if you’ve been a senator, you have a particular way of looking at issues and matters of public policy. If you’ve been a judge on a court of appeals, it seems to me you have a very different way of looking at it.

“So you have to decide what types of questions you think the court should be deciding, and if they call for people who have one way of looking at public policy as opposed to people – you said ‘technocrats,’ not the right word – a more focused way of drilling in on the law. And maybe you think there’s a mismatch between the kind of question the court’s being asked to decide and the type of personnel that have to decide it.

“And you can obviously resolve that tension one way or another. But I do think it’s not simply a coincidence or a happenstance that you have a court that looks so different than what it looked like in the past.”…

I think the chief justice is saying that there’s a disconnect between what people seem to want from the Supreme Court – answers to the country’s most profound questions – and what the current crop of justices has been trained and selected for – namely, delivering small-bore answers. If you want something more from us, I hear him as implying, then maybe we’re not the justices for you.

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Sex discrimination prohibition protects trans students as well as employees http://hunterofjustice.com/2013/07/sex-discrimination-prohibition-protects-trans-students-as-well-as-employees.html?utm_source=rss&utm_medium=rss&utm_campaign=sex-discrimination-prohibition-protects-trans-students-as-well-as-employees http://hunterofjustice.com/2013/07/sex-discrimination-prohibition-protects-trans-students-as-well-as-employees.html#comments Thu, 25 Jul 2013 04:18:37 +0000 Nan Hunter http://hunterofjustice.com/?p=4506 NHHS

The use of Title VII to prohibit employment discrimination based on gender identity has become widespread, both in the courts and through the EEOC’s and  the Justice Department’s decisions in Macy v. Holder.  Now the Obama Administration is extending its reliance on another sex discrimination law, Title IX, to protect trans students from discrimination by school districts. The new consent agreement requires a California school district to provide access for a FTM teenager to all facilities designated for boys.

From Buzzfeed:

 School districts cannot discriminate against transgender students without violating federal law, Education and Justice department officials stated Wednesday in a settlement agreement resolving a complaint filed on behalf of a transgender student who faced discrimination in middle school.

The agreement is the latest mark of a growing legal and administrative trend to interpret bans on sex discrimination as including discrimination based on gender identity and transgender status, and Wednesday’s settlement applied that definition to Title IX of the Education Amendments of 1972, the law that bans sex discrimination in education.

“This is a natural extension of the way courts and administrative agencies are interpreting sex-stereotyping. This resolution shows the federal government is continuing to import the sex-stereotyping definition as applied elsewhere, specifically Title VII [of the Civil Rights Act], into the Title IX context,” National Center for Lesbian Rights staff attorney Asaf Orr, who represented the student, told BuzzFeed.

Under the settlement agreement announced Wednesday, the Arcadia Unified School District in California will make several system-wide changes to address anti-transgender discrimination, but officials also will change the way they treat the transgender male student who brought the complaint — steps aimed at “treat[ing] the student like all other male students” in the district.
In announcing the agreement, the Justice Department said that the settlement includes a requirement that the district will amend its policies “to reflect that gender-based discrimination, including discrimination based on a student’s gender identity, transgender status, and nonconformity with gender stereotypes, is a form of discrimination based on sex.”

The Justice and Education Department officials note in a report dated Wednesday closing the complaint that “[t]he Student, who was assigned the female sex at birth, identified as a boy from a very young age.” The student is now in ninth grade.

After “fac[ing] some harassment from classmates because of his masculine clothing and hairstyle, which did not conform to female stereotypes” in fifth grade, the student and his family began his gender transition, including adopting a traditionally male first name, using male pronouns and continuing to present outwardly as a male in his clothing and hairstyle.

“According to the District and the Student’s family, the Student’s classmates, notified of the transition by their teacher, accepted him as male immediately, and the harassment of the Student ceased,” the government officials wrote.
The complaint, in fact, only came about because Arcadia school district officials allegedly barred the student from using male restroom and locker room facilities and refused to let him stay in a cabin with other males during an overnight camping trip sponsored by the school district during his sixth and seventh grade years. Instead, the student alleged, the district “requir[ed] instead that he stay in a cabin separate from all of his classmates with his parent or another adult chaperone.”

Although the Justice and Education department officials note that “[t]his letter is not a formal statement of [the Education Department’s Office of Civil Rights’s] policy and should not be relied upon, cited, or construed as such,” they nonetheless explain the legal underpinning of their investigation.

“In the employment context, federal courts and administrative agencies have applied Title VII of the Civil Rights Act of 1964, the federal law prohibiting sex discrimination, to discrimination against transgender individuals based on sex, including nonconformity with sex stereotypes and gender identity,” they wrote. Among other cases, the officials cited Vandy Beth Glenn’s case successfully challenging anti-transgender discrimination in Georgia and Mia Macy’s case resolved recently by the Justice Department after the Equal Opportunity Commission had decided in April 2012 that Title VII’s sex discrimination ban includes anti-transgender discrimination.

In resolving the dispute against Arcadia, the officials noted that “[c]ourts rely on Title VII precedent to analyze discrimination ‘on the basis of sex’ under Title IX,” and concluding, therefore, that “[a]ll students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX ….”

The explicit transgender protection is an expansion of the terminology, if not reasoning, from that used by the Justice and Education departments in the resolution of an earlier case against the Anoka-Hennepin School District in March 2012. In that case, the officials primarily referenced “sex-based harassment,” with a few references to “gender nonconformity” but no specific references to the law providing explicit protection for discrimination based on transgender status. Even then, however, the Justice and Education departments noted that “’[g]ender-based harassment’ means non-sexual harassment of a person because of the person’s sex, including harassment based upon gender identity and expression.”

Reflecting the rapidly changing environment for transgender protections under sex-discrimination laws, in an October 2010 letter to schools, the Education Department stated, even less specifically, that “it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity.”

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Ohio federal judge orders recognition of Maryland same-sex marriage http://hunterofjustice.com/2013/07/ohio-federal-court-orders-recognition-of-maryland-same-sex-marriage.html?utm_source=rss&utm_medium=rss&utm_campaign=ohio-federal-court-orders-recognition-of-maryland-same-sex-marriage http://hunterofjustice.com/2013/07/ohio-federal-court-orders-recognition-of-maryland-same-sex-marriage.html#comments Tue, 23 Jul 2013 01:32:12 +0000 Nan Hunter http://hunterofjustice.com/?p=4490 Wedding rings

In a case with heartbreaking facts, U.S. District Judge Timothy Black, sitting in Cincinnati, has ordered the registrar of vital statistics to classify a man as married who was flown to Maryland in a medically equipped jet so that he and his partner could marry before his death. Judge Black noted that John Arthur, who suffers from ALS or Lou Gehrig’s disease, is expected to die soon. Mr. Arthur ‘s spouse –  James Obergefell – obtained a temporary restraining order (TRO)  on  Monday ordering the Ohio Registrar of death certificates not to accept one for Mr. Arthur unless it lists him as married and Obergefell as his surviving spouse.

The marriage earlier this month after a 20-year partnership and the litigation were apparently triggered by Arthur’s wish to be buried in his family plot and for Obergefell to later be buried next to him. The family document governing the burial plot, however, limits who may be buried there to spouses and descendants. Unless the death certificate lists Obergefell as the surviving spouse, the couple’s wish to be buried in the same plot could be impossible to achieve.

In ruling, Judge Black found that Obergefell was likely to succeed on the merits of his claim that Ohio’s refusal to recognize out-of-state same-sex marriages – when it recognizes all other out-of-state marriages that were lawful where performed- violates the Equal Protection Clause, citing United States v. Windsor. Judge Black also noted that the threat of irreparable harm was an even stronger factor than likelihood of success in considering whether to issue a TRO, and described the harm to the plaintiff couple as extreme, while the harm to the state or any other citizen was non-existent.

The complaint named state and local officials as defendants.  Lawyers for the state opposed the motion for a TRO, but the City of Cincinnati declined to defend the constitutionality of the state law banning recognition of same-sex marriage.

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Parliament grants final approval to same-sex marriage + Queen signs http://hunterofjustice.com/2013/07/parliament-grants-final-approval-to-same-sex-marriage.html?utm_source=rss&utm_medium=rss&utm_campaign=parliament-grants-final-approval-to-same-sex-marriage http://hunterofjustice.com/2013/07/parliament-grants-final-approval-to-same-sex-marriage.html#comments Wed, 17 Jul 2013 12:42:09 +0000 Nan Hunter http://hunterofjustice.com/?p=4479 British Museum

Gay couples in England and Wales will be able to marry [CORRECTION:] next year, following action by the House of Commons yesterday approving marriage equality legislation. As a formality, the final word will come from the Queen – how appropriate – who is set to sign the bill into law, although the date has not been announced.  

UPDATE – Queen Elizabeth gave “royal assent” to the marriage legislation on Wednesday; implementation will probably begin in 2014.

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