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Why You Should Loudly Support Westboro Baptist’s Free Speech Rights

I support the Supreme Court’s decision in favor of Westboro Baptist Church’s right to picket funerals and just generally be douchebags.

When I was a junior in high school, I had a math teacher who was a brilliant woman and taught me a lot of what I needed to know about life, if not much about math.  The thing she said that stuck with me the most was about free speech–she told me that she, a very liberal Jewish woman, strongly supports a Nazi’s right to stand on a hilltop shouting at the top of his lungs, because that is absolutely the only way she can defend her own rights with a clear conscience.

And let’s face it–this case is free speech gold.  These are the most disgusting, reprehensible people you can imagine, people who picket funerals, who absolutely loathe me and want me to die in the most gruesome possible ways, who firmly believe that I deserve to rot in hell for all eternity.  This is why queers, liberals, and human rights activists need to stand up and cheer for the Supreme Court on this ruling, and defend Westboro Baptist’s right to tell everyone that God hates fags.  If we don’t jump on this case, we have no credibility.

Of course, at the same time, we should absolutely condemn Westboro Baptist’s actions, beliefs, and thoughts using our own free speech right.  But you have to pick the right enemy.

I believe that there is a war on free speech in this country, and it’s not being fought in the courts.  Initially, it was, but the obscenity laws are in place.  The Puritanical, stigmatizing laws, rules, ordinances, and regulations that supposedly are designed to keep children away from sex, drugs, and rock and roll are the real problem.  This is how cultural shifts happen, and look where we are now.  We’re afraid to say “fuck” in public.  We’re afraid to say lesbian in public.  Sexual expression is reduced to obscenity, and people who raise children in queer, kinky, polyamorous, sex positive, or radical households are condemned as unfit parents.  That’s where we need to turn our energies.

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Some preliminary thoughts on the Varnum opinion

At the moment, I’m in a fabulous and fascinating conference on CRT and ignoring it because I’m so excited about this opinion.  More thoughts to come, but I wanted to post a few initial observations.

1) The opinion was unanimous, and they applied intermediate scrutiny (not dismissing strict, but not reaching it because of the result under intermediate).

2) The language is absolutely beautiful.  Let me share my favourite quote: “Our responsibility… is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.”  YES!  The whole history/tradition thing was a big deal in oral arguments, and I’m so glad that the Court continues to embrace an evolving notion of equal protection under the Iowa Constitution.  Iowa has an amazing history when it comes to equal protection, and this is just another example.

3) I loved their basically saying that it’s absolutely ridiculous to argue that there’s no classification being made here because gay people can marry someone of the opposite sex just like straight people.  Thank you!

4) They also did a great job on the procreation/child-rearing arguments, which were a big focus of this case.  Dennis Johnson gets big credit for the way he argued this point, and the Court bought it.

Finally, if you’d like a step-by-step breakdown summary of the ruling, you can read my article:

iowa supreme court mandates same-sex marriage

California Dreamin'

I didn’t want to say anything until it was official because I’m superstitious about some things, but I’ve booked my ticket and hotel room so I think I can announce it.  I’ll be presenting a paper in March at the Global Arc of Justice: Sexual Orientation Law Around the World conference, hosted by the Williams Institute of UCLA law school and the International Lesbian and Gay Law Association, in Los Angeles!  I’ve known that I was probably going for a month, but now that funding for 3/4 of the trip came through and I was able to book the flight, I have an ear-splitting grin on my face.  It will be amazing academically, with several of my favorite scholars, and professionally, with several people from the NGOs at which I’d most like to work in attendance, and also I have to admit that it’s pretty cool to be in West Hollywood for three nights.  I’ve never been a big LA person, though I went to San Francisco once when I was 14 and loved it, but I keep thinking about the L-Word and laughing to myself.  It’s like a fantasy trip.  If anyone reading has academic experience, I would love some advice.  I know nothing about presenting a paper: for example, do you tend to stick with laying out the paper’s argument or do you extrapolate and give interesting facts with just your core argument as a teaser for people to read the paper?  I don’t know if/when this will be published, so a teaser seems a bit silly, though maybe this will be a jumping-off point to publication.  Also, PowerPoint or index cards?  Any other tips?  I’d love to hear them.

Marriage equality in Iowa? Say it'll be so!

I was pretty bummed after months of planning to go to the oral arguments in the Varnum v. Brien case today that my ride decided that it wasn’t likely enough that we would get a seat in the courthouse and changed his mind, but I understood and due to the freezing rain it was probably a smart call anyway.  Instead, I watched the arguments at a OneIowa viewing party here in Iowa City.  These are my thoughts.

Good:

  • The lawyer for the defense, a Mr. Cool, was disrespectful to the court, bumbling, and just not all that great.  He barely answered a question, he stumbled a lot, he ran himself around in circles, he contradicted himself, he often told a justice that he didn’t want to answer a question or that the question wasn’t good, and twice he reminded the court that his time had run out.  He held his folders in his hand at one point and looked like he just wanted to get the hell back to his chair.  This isn’t substantive, but I hope it will make the court look less kindly on his arguments.
  • The defense presented a lot of weak arguments that haven’t worked well in other states.  The focus was heavy on procreation, and the justices all hammered the attorney on that point, wanting to know what heterosexual marriage has to do with raising a healthy family.  You could tell that the attorney knew he was backing himself into a corner and he never really made his way out.
  • He also relied pretty heavily on the rational basis test, which the court very well may use, the but the court repeatedly asked him about strict or heightened scrutiny and he couldn’t answer.  Probably because if they apply strict scrutiny, he’s screwed.

Bad:

  • The court mentioned a very recent Iowa case called Mitchell that I don’t know but apparently it requires the plaintiff when arguing no rational basis not only to argue that the government has no rational state interest but also to provide specific evidence to back it up.  The problem is that our side has the burden if the court picks rational basis, and the court basically said that neither side has any decent social science evidence despite thousands of pages submitted.
  • It seems at least possible that they’re going to reverse the District Court on the affidavits that it refused to accept, affidavits from experts including religion professors and a history professors about heterosexual marriage being traditional, etc. etc.  The reason for not accepting those affidavits is that they were personal opinion rather than actual expert testimony, but there was a whole run-around about legislative vs. adjudicative facts and one justice asked whether the case should be remanded or decided if it didn’t agree on that point.
  • One that had the law students in the room kind of gritting our teeth and holding our breath was a question about polygamy.  The defense focused a lot on the “four thousand years” of marriage and tradition and the danger of marriage being eroded in a generation domino effect blah blah blah.  The court then asked the attorney for the plaintiffs what the line is for the definition of marriage, i.e., if we’re allowing gay marriage why aren’t we allowing polygamy?  That was a tough question, though I do think he managed to squeak out of it with an explanation that polygamy changes the actual structure of marriage while same sex marriage only changes the people who can enter into that structure.  Granted, I don’t really have a big problem with polygamy myself, but I think he handled it pretty well.

Positive and Negative Liberties: What Our Government Should Do

From time to time, I get really thoughtful comments that make me want to respond a little more thoroughly than a usual quick reply, and unfortunately the WordPress system doesn’t allow for any sort of direct reply or notification.  I got one of those comments the other day from reader Teresa on this post, and so I thought I’d post my reply here.  It raises some interesting questions.

Yes, I think our descendants will be embarrassed about a number of things happening now. You bring up that there is a difference between a constitution and democracy, and that’s something most Americans probably wouldn’t think about. The Constitution lists what the government cannot do to us, while “democracy” is focused almost entirely at this time on what the government should be doing for us.

Obama has picked up FDR’s idea for a second Bill of Rights to give the country a “positive” list of what the government must do rather than what it must not do. Included in the list are things like jobs and houses and health care and education. But are those correctly labeled as “rights”? I understand a right as something natural that doesn’t impinge on another. If we guarantee everyone a satisfying job or house, then that means government must force someone else to provide it. I honestly don’t think most Americans have fully considered what Obama is proposing, or they are so stunned they don’t believe he will pursue these things.

The notion that Obama or his supporters would support the right to a job or housing or health care and construct the government machinery to strip mine the country for the resources but not the right to marry is outrageous, and I marvel still at the coalition of constituencies that gave him the election while denying this basic human right to the LGBT. Freedom and equality are not the same thing. Often they are contradictory, with freedom being the riskier, and only truly democratic ideal.

So what is a right?  The classic notion is that for someone to have a right, someone else must have a corresponding duty.  At the time of this country’s founding, the Framers were thinking about negative liberties in the context of an aggressive, intrusive imperial government.  The duty of the government was simply to stay the hell out – don’t stop people from speaking, from practicing their religion, from electing representatives.  These were freedoms from intrusion, not freedoms to a particular object.  One man’s right ended where another’s began.

But then socialism began to ascend, along with the idea of a state that has a positive duty to provide certain benefits to its citizens, whether that be health care, a living wage, or education.  People started talking about economic, social, and cultural rights.  Personally, I’m a strong believer in these rights, and in the idea that the state, to the extent of its resources, has a duty to provide them.  So my idea of rights does include jobs, houses, health care, and education, not only the “natural rights.”

Still, the “to the extent of its resources” bit is crucial.  I tend to support politicians that I think lean towards my socialist ideology, which includes providing to the citizens.  I also recognize that no politician can actually provide health care for all, quality education for all, a house for every citizen or a job for every citizen.  I think we should work towards these goals, but we don’t have the resources to achieve them.  We can’t achieve world peace, either, but does that mean that constantly working towards it is a waste of time?  I don’t think so.

I agree with Teresa, though, that it’s interesting that people would simultaneously vote for a candidate who is trying to assure everyone these positive economic, social, and cultural rights and vote against propositions that simply assure everyone the civil and political right to be left alone.  The right to marry does generally fall under positive rights, but as the Supreme Court has recognized there is a big difference between not having the resources to provide a service at all and having the resources but excluding only one group from its benefits.  I do see how this particular fight can fall into the category of government intrusion into individuals’ private lives, and I find it upsetting that the people of several states have decided this election to allow it.

Tension in Turkey

I still have a great big pile of blog posts and news clips to blog about, which I’ve finally organized into posts based on topic, but since my week is a little crazy, I’d just like to make a little off-the-cuff comment about what’s going on in Turkey.  For those of you who don’t know, the highest court in Turkey ruled today not to allow a ban on the ruling party but instead to cut its state funding in half for trying to impose Islam on the secular nation.

When the news was first coming out about the headscarf issue, I found it very interesting to hear the perspective of my Turkish teacher, Bahar, who like many women in Turkey is Muslim but believes strongly in the secular state.  The way she described it, secularism is the most fundamental principal of the Turkish state and thus allowing women to wear headscarves in school would be a threat to the state’s historical foundations and its values.  In other words, there is a huge fear of the slippery slope.

I have trouble deciding where I stand on this – not that it really matters, as I’m not Turkish, but I still tend to have an opinion on foreign politics.  On the one hand, I see her arguments, especially in light of what has happened in neighboring states and considering Turkey’s position and reputation as a unique secular, modern, democratic state whose population is mostly Muslim.  On the other hand, I grew up in the US where freedom of religion is heavily valued, and it seems strange to me that someone would ban a political party based on its religious ties – not all that democratic, I would think.  It will be interesting to see how all this plays out, in any event.

When consent fails

As you know if you read this blog, I’ve been doing research on sadomasochism and consent, and I’ve come to the conclusion that the law is bordering on pathology in its obsession with protecting masculine subjectivity, while using the other hand to perpetuate feminine objectivity just as much as it damned well pleases.  

Case in point: I read a law review article arguing that Laskey, the European Court of Human Rights case where prosecution of several homosexual men who were practising consensual sadomasochistic sex was upheld on the basis of public morality, was all about protecting the masculinity of the male “victim” by not even allowing him to consent.  This makes a lot of sense to me.  Ideally, what we want is a system of informed consent, where yes means yes and no means no.  What we get is, on the one hand, the legal system refusing to let men say yes to erotic pain in order to “protect” them, and on the flip side, refusing to acknowledge women who say no to date rape because they “accepted a risk” – ignoring the fact that true informed consent means they accepted the risk of what actually happened, not just the risk that consensual sex might occur.  Consent, essentially, doesn’t mean anything in the legal system – it’s just another tool of sexism.  Grand.

What are the acceptable limits of consent?

Consent is something that we obviously value very greatly in modern Western society.  Consent is often the difference between a crime and an unpunishable act.  In the realm of sexual acts, consent (sometimes) is what makes activity acceptable to the law.  When we talk about sodomy laws, we frequently repeat the phrase “consenting adults.”  These are consenting adults in the privacy of their bedroom, therefore the state shouldn’t interfere.  Consent is one way to mark a line between activity protected by the right to privacy and activity into which interference by the criminal system is justified.  If there isn’t consent, then at least one of the parties’ privacy rights – or more broadly, right to individual autonomy – is not being respected.  Autonomy is to right to do as we will with our own lives, as bodily integrity is the right to do as we will with our bodies.  When these rights are breached, the other party can no longer say that he or she was justified by autonomy – the limit to autonomy is where it interferes with someone else’s.

Of course, this is all well and good, and as a general rule I agree to consent as the line we should use.  I don’t think, for example, that the government should interfere due to some overriding “public interest” when consenting adults participate in sadomasochistic activities.  I don’t believe that the public morality, when people are having sex in private, all consenting, and therefore not harming anyone else’s autonomy, can override the autonomy interests of the participants.  But that said, I found an interesting paradox in an essay I was reading for a paper I’m writing on sexual autonomy.  The author gave the example of two gay men kissing in the street.  The men argue that they have an autonomy interest in being able to express themselves affectionately – and indeed, autonomy goes behind a mere geographic sense of “privacy,” so that the interest exists on a public street as much as in a private home.  But then some bystander argues that her autonomy interest is being violated because she doesn’t want to see men kissing.  Where do we draw a line?  If autonomy only goes so far as the limits of others’ autonomy, then they men shouldn’t be able to kiss – but do we want to go this far?  I certainly don’t.  Does everyone in the neighborhood have to consent, or only the “reasonable” ones?  What is reasonable?  A member of the moral majority?  An interesting paradox.

Humanitarian intervention (still intervention)

My Foreign Relations Law professor, who is a Russian national, made an interesting point today.  He was talking about the decision to bomb Kosovo, and referred to the humanitarian intervention as a pretext, which I don’t agree with.  However, it’s good to remember that there are two sides to every story, and though I think in this case intervention was the right thing given Serbia’s history of ethnic cleansing, the credibility of the threat, and the lack of national interest beyond humanitarian concerns (very unlike Iraq), there is a Serbian side to the story.  Of course, Russia is an ally of Serbia, and it was due to the promise that Russia and China (nervous about the idea of invading sovereign territory) would veto the move in the Security Council that NATO chose to strike out on its own without UN approval.

The professor was making a link to one of the Federalist Papers, wherein the author (I believe it was Hamilton) mentions the inability of a young United States to remonstrate with dignity.  To illustrate the meaning of this phrase, he used the example of Russian Prime Minister Primakov flying from Moscow to Washington to meet with Vice President Al Gore.  Before leaving, Primakov was informed by Russian intelligence of NATO’s plan to bomb Kosovo.  He called Gore, who informed Primakov that his information was bad.  Primakov got on the plane, and when he arrived at Shannon to refuel, he called once again, again receiving intelligence information that the bombing was imminent.  Gore responded in the same way.  Well, Primakov was over the Atlantic when he found that the bombing was taking place.  Had he arrived in Washington and had his picture taken with the Vice President, the obvious message would have been that Russia supported the mission.  So Primakov asked the pilot to take a U-turn, and he returned to Russia. In my professor’s words, “that was when the United States lost Russia.”

I find this story interesting in two respects.  One is the perspective that many Americans have when it comes to Russia.  I grew up thinking of Russia as a country that was strong throughout the Cold War, though it had trouble feeding its own people and was probably in some way inferior, and after the war ended, I didn’t really think of Russia as anything.  It was this state out on the other side of world that we didn’t have to worry about any more, essentially.  But I’ve come to realize that Russia is a country to watch for, and also to respect.  I think Russian leaders have done some horrible things in terms of human rights, but I also think that to ignore or try to manipulate Russia is a bit foolish. 

The other respect in which I find the account interesting deals directly with Kosovo.  I’ve been reading Richard Falk’s recent book, in which he talks a lot about how Kosovo was illegal but legitimate.  One side you don’t really get, however, is the Russian (or Serbian) side.  Again, I think it’s fairly clear that the mission saved a lot of lives, and that imminent humanitarian attrocities justified the attack, but the nature of the attack is another question.  Humanitarian intervention is still intervention, and respect for sovereignty is one of the key rules of diplomacy.  I think we could do better.  High-altitude bombing, for example, doesn’t seem like the solution.  I think the global world order needs restructuring so that nations can show respect for each other and universal non-acceptance of human rights violations.  If Russia, for example, had been able to retain the option of being Serbia’s ally but at the same time could have refused to use its veto due to the human rights violations going on, and at the same time NATO powers had agreed to use only targeted military force when absolutely necessary in a way that would avoid civilian casualties and ensure quick withdrawal, maybe we’d be in a different position today.  I think that we should work to prevent human rights tragedy no matter what the geopolitical consequences, but I also think we should be careful about verifying the threat and using appropriate responses.  Losing Russia, I think, is proving to be a relatively big deal.  

So what is the goal?  I think universal acceptance of at least the very most basic human rights is a good start.  This is an extremely difficult goal to achieve, but it is in the self-interest of nations to adhere to the principle.  If we could all carry out diplomatic relations as sovereign states, but at the same time understand that none of our allies will help us if we commit human rights atrocities, even within sovereign territory, that our international reputation will be irrevocably tarnished and our economic position threatened… who knows.  Maybe the situation would improve.  I’m not naive enough to think that the world will go pacifist anytime soon, but I have to believe that there is a better way of doing things.

As a human rights activist, my personal goal is to be more sensitive to geopolitical realities and cultural concerns.  Though I do strongly believe that people deserve a minimal standard of living, the way to go about it isn’t to burst into a country and declare that I’m right.  Situations are often complicated, and cultural understanding is essential to intelligent diplomacy.  I do believe that diplomacy is the way to achieve human rights victories, not force.  If international organizations can gain more respect on the world stage, they also may have a critical role to play in informing nations of their human rights violations in a way that appeals to national self interest and cultural context, not just the universal “civilizing mission” that nations are understandably hesitant to embrace.  Even in the human rights field, there are two (or many) sides to the story.  Hopefully we can reconcile them and still manage to save a few lives along the way.

Another reason to celebrate today!

This really excites me.  I’ve been interested in Maori culture for a while, and thought about maybe working with Maoris on land rights until I decided that I definitely did not want to practice law.  I’d still love to do cultural preservation work of some sort there.  If you don’t read French, the jist is that the New Zealand government has finally agreed to some compensation for Maori land.  It may be too little too late, but still, this is huge.