Geoffrey R. Stone's Blog, page 10
April 17, 2013
Justice Scalia, "Originalism" and Homosexuality
In a speech at the University of California this week, Justice Antonin Scalia, an advocate of the doctrine of "originalism," was asked by a student how an orginialist should apply the First Amendment's guarantee of "freedom of speech" to modern forms of communication. After all, television, radio, movies, email and the Internet did not exist at the time the First Amendment was adopted. Does this mean, the student asked, that the use of such technology does not constitute "speech" within the meaning of the First Amendment?
According to the Wall Street Journal, Justice Scalia responded by explaining that "technological change rarely presented serious obstacles" to his method of interpretation, "because the principles underlying speech and press freedoms . . . can readily be extrapolated to new media."
Another student then asked whether under Justice Scalia's approach to constitutional interpretation the Constitution should "similarly be interpreted to recognize new social phenomena, such as gay relationships," a reference to cases currently pending in the Supreme Court on the issue of same-sex marriage.
According to the Wall Street Journal, Justice Scalia responded: "I don't consider homosexuality a new phenomenon." He explained that homosexuality was known when the Fourteenth Amendment, which guarantees the "equal protection of the laws," was adopted in 1868, and "was considered a crime in most places."
One has to wonder whether Justice Scalia knows anything about the history of which he speaks. In fact, "homosexuality" was not a crime at the time the Fourteenth Amendment was adopted. What was unlawful was "sodomy," which was generally defined to include oral or anal sex, without regard to whether the couple who engaged in the act were of the same sex or the opposite sex. There were no laws against homosexuality. At time the Fourteenth Amendment was enacted people considered sodomy in the same way they considered robbery, burglary or murder. It was a bad thing, and if people chose to do it they should be punished.
Moreover, at that time there was no concept of the "homosexual" as a type of person with a particular sexual orientation. The concept of the homosexual as we now understand the concept did not come into being until long after the Fourteenth Amendment was adopted, at the end of the nineteenth century. Indeed, despite what Justice Scalia seems to think, the word "homosexuality" did not even exist until the late nineteenth century.
It was only then that physicians and psychologists began for the first time to recognize that some people, termed "homosexuals," had a deeply-rooted sexual orientation that led them to be attracted to persons of the same sex. This led to all sorts of complex questions: Was a person's homosexual orientation congenital or acquired? Was it "curable" or incurable? Should it be accepted as an unavoidable condition or should it be actively resisted and suppressed? Many physicians, like Freud, concluded that whatever the cause of a person's homosexual orientation no moral or social opprobrium should attach to it.
Since the 1970s, the consensus among physicians and other mental health professionals is that homosexuality is a normal variation of human sexual orientation. The prevailing view today is that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality, a position that has been officially endorsed by both the American Psychiatric Association and the American Psychological Association.
None of this, of course, was known in 1868. Just as those who enacted the First Amendment could not have anticipated cell phones and email, those who enacted the Fourteenth Amendment could not have anticipated our current medical, scientific and social understanding of sexual orientation.
The same reasoning and the same conception of "orignalism" that leads Justice Scalia rightly to conclude that the Framers' ignorance of cell phones and the Internet does not resolve questions about the meaning of "the freedom of speech"should also lead him to the conclusion that the Framers' ignorance about the nature of sexual orientation does not resolve fundamental questions about the meaning of "the equal protection of the laws."
If one is going to be an "originalist," at least one should be consistent about it.
According to the Wall Street Journal, Justice Scalia responded by explaining that "technological change rarely presented serious obstacles" to his method of interpretation, "because the principles underlying speech and press freedoms . . . can readily be extrapolated to new media."
Another student then asked whether under Justice Scalia's approach to constitutional interpretation the Constitution should "similarly be interpreted to recognize new social phenomena, such as gay relationships," a reference to cases currently pending in the Supreme Court on the issue of same-sex marriage.
According to the Wall Street Journal, Justice Scalia responded: "I don't consider homosexuality a new phenomenon." He explained that homosexuality was known when the Fourteenth Amendment, which guarantees the "equal protection of the laws," was adopted in 1868, and "was considered a crime in most places."
One has to wonder whether Justice Scalia knows anything about the history of which he speaks. In fact, "homosexuality" was not a crime at the time the Fourteenth Amendment was adopted. What was unlawful was "sodomy," which was generally defined to include oral or anal sex, without regard to whether the couple who engaged in the act were of the same sex or the opposite sex. There were no laws against homosexuality. At time the Fourteenth Amendment was enacted people considered sodomy in the same way they considered robbery, burglary or murder. It was a bad thing, and if people chose to do it they should be punished.
Moreover, at that time there was no concept of the "homosexual" as a type of person with a particular sexual orientation. The concept of the homosexual as we now understand the concept did not come into being until long after the Fourteenth Amendment was adopted, at the end of the nineteenth century. Indeed, despite what Justice Scalia seems to think, the word "homosexuality" did not even exist until the late nineteenth century.
It was only then that physicians and psychologists began for the first time to recognize that some people, termed "homosexuals," had a deeply-rooted sexual orientation that led them to be attracted to persons of the same sex. This led to all sorts of complex questions: Was a person's homosexual orientation congenital or acquired? Was it "curable" or incurable? Should it be accepted as an unavoidable condition or should it be actively resisted and suppressed? Many physicians, like Freud, concluded that whatever the cause of a person's homosexual orientation no moral or social opprobrium should attach to it.
Since the 1970s, the consensus among physicians and other mental health professionals is that homosexuality is a normal variation of human sexual orientation. The prevailing view today is that same-sex sexual and romantic attractions, feelings, and behaviors are normal and positive variations of human sexuality, a position that has been officially endorsed by both the American Psychiatric Association and the American Psychological Association.
None of this, of course, was known in 1868. Just as those who enacted the First Amendment could not have anticipated cell phones and email, those who enacted the Fourteenth Amendment could not have anticipated our current medical, scientific and social understanding of sexual orientation.
The same reasoning and the same conception of "orignalism" that leads Justice Scalia rightly to conclude that the Framers' ignorance of cell phones and the Internet does not resolve questions about the meaning of "the freedom of speech"should also lead him to the conclusion that the Framers' ignorance about the nature of sexual orientation does not resolve fundamental questions about the meaning of "the equal protection of the laws."
If one is going to be an "originalist," at least one should be consistent about it.
April 10, 2013
Conversation With a "Gay-Buster"
After publishing a recent HuffPost blog post on the rights of gays and lesbians, I received an email from an activist opponent of same-sex marriage and proponent of the notion that homosexuals are defective people who must be "fixed." I have had exchanges with this person in the past. I decided to share this exchange. The "gay-buster" is G-B; I am GRS.
G-B: Homosexuality is abnormal, treatable. The truth will out. See www.narth.com; www.gaytostraight.org; www.josephnicolosi.com; www.pfox.org
GRS: So, here are my thoughts, in brief, on this subject. For all of human history, until the end of the nineteenth century, people who engaged in homosexual sex were not thought to be different from others, except in their conduct. Some people like oral sex, some don't. Some people like homosexual sex, some don't. On that understanding, homosexual conduct was merely a variant of sodomy (which included pretty much all nonreproductive sex), and because it was simply a choice it was easy to condemn people who engaged in homosexual sex as sinners and criminals, just as one might condemn burglars, rapists or murderers. In the late nineteenth century, however, psychologists began to understand that homosexuality was an orientation with which some people were born, and suddenly the idea of the "homosexual" as a type of person, rather than as a person who engaged in a particular kind of sex, came into being.
But what to make of this? The general (though not universal) view was that the homosexual orientation was a genetic defect, a genetic degeneracy, that needed "fixing." This led to the notion, for the first time, that homosexuals didn't need criminal punishment, but treatment. Moreover, since this understanding suggested that having a homosexual orientation was inherent and not a matter of "fault," the medical profession condemned the tradition punitive approach in favor of a therapeutic approach.
That led to an era from the beginning of the twentieth century until the mid-twentieth century is which doctors attempted to find ways to "cure" homosexuality. They tried everything from psychotherapy to aversion therapy to electric shock to castration to sterilization (and a lot more crazy things besides). Alas, the scientific conclusion was that the homosexual orientation really could not be "cured."
People could manage to control their behavior, within limits, but the orientation itself could not be eliminated. Thus, just as with sufficient discipline a person with a normal sexual drive can learn to live a celibate life or a person with a heterosexual orientation can learn to have homosexual sex (as in prisons and the military), some homosexuals can manage to have heterosexual sex. I don't know about you, but as a heterosexual myself, I would find it awfully difficult to behave as a homosexual, but I if my kids lives depended on it, for example, I suppose I could manage it.
In any event, it's extremely important to understand the difference between changing one's sexual orientation and changing one's sexual behavior. The latter can be changed, albeit with great difficulty; the former seems extremely resistant to change. Orientation is about desire, it's about what and who "turns you on." It's different from conduct. It's a bit like left-handedness. It is extremely difficult, if not impossible, to alter a person's natural left-handedness. That is an orientation with which some people are born. It is possible, with extraordinary difficulty, to train them to act as if they are right-handed, but it is artificial and they would be much better as lefties. (Of course, just as some people are bisexual, some people are ambidextrous. It's the way they are born.)
Now, I have no objection to a consenting adult who is unhappy with his sexual orientation trying to change it -- in either direction. That's entirely up to him. I would object to fraudulent promises of change, of course, as I would object to any fraudulent offer of medical treatment. But let's put that aside. Let's assume, although pretty much all the independent scientific evidence is to the contrary, that there are some forms of "reparative" therapy that can "cure" homosexuality. To the extent that is so, and to the extent people want to try, fine. There are, after all, plenty of reasons to want not to be homosexual in our society, even today, given the hostility, discrimination and condemnation still heaped upon homosexuals in some quarters.
The central issue, though, is whether a homosexual orientation should be thought to be something that needs to be cured or repaired or treated. On that score, I am adamant. The greatest insight we as a society have had in the last half-century with respect to homosexuals is that they do not need to be cured, repaired or treated. Life left-handedness, some people are homosexuals. There is no more reason for society to condemn homosexuals than there is for it to condemn lefties. Once we clear our heads, it becomes obvious that these are just people who have a different sexual orientation, and there is nothing inherently or morally "wrong" with that.
Of course, I understand that this flies in the face of some ancient religious beliefs, but I do not for a moment think that those beliefs should control our own good judgment and sense of decency and justice in the twenty-first century. I suppose that when it comes to religious beliefs, I think "do unto others" trumps everything else. So, if you want to tell people who are gay that if they'd rather not be gay you can help them, fine with me. But you really shouldn't think of it as "cure" or "repair" or "treat," any more than you would say you're going to "cure" someone of being left-handed. Cheers.
G-B: You just stay in that Leftist mental groove and never venture out of it. Groupthink. The truth is going to rock your world.
GRS: C'mon. You ask me for a reasoned response and then you offer this? Play fair. How about this: Go through my message and tell me PRECISELY what statements you think are wrong. Do it seriously.
G-B: It's clear you still haven't done the reading at www.narth.com and other websites. So you're really just talking to yourself. Sad. The real problem, Geoff, old pal, is that you ignored the info I gave you. The American Psychiatric Association is headed by lying Leftists. Face it.
Again, some readings: Charles Socarides, "Sexual Politics and Scientific Logic: The Issue of Homosexuality" and Joseph Nicolosi, "The Removal of Homosexuality from the Psychiatric Manual."
No science can tell you what's moral, anyway. But science can add information that can help one understand the nature of a thing--including a feeling. As long as you aren't willing to test your moral assumptions, you'll be stuck in an illusion--and mislead your readers. To repeat: Homosexuality and transgenderism are symptoms of deep-seated gender self-alienation. In homosexuality, the partner/object of desire is unconsciously used as a gender crutch. In transgenderism/gender identity disorder, there was early (age two or so) gender identification with the opposite-sex parent figure.
Faulty bonding and identification with the same-sex parent figure creates a chronic state of emotional neediness that later takes one of these forms. (Bisexuality is just a milder form of homosexuality, with normal development having been partially achieved.) Better parenting prevents these. Skilled psychodynamic psychotherapy and good platonic mentoring correct them. This takes years, even decades, as with other deep-seated disorders. The subject is psychology, not sociology or history.
You've got a lot to learn. It takes humility to realize one has been seriously wrong about something, and for a long time.
GRS: O.K, let's try to stay away from name-calling ("lying leftists" v. "right-wing crazies"). Here are some thoughts. Keep in mind that I mean what follows somewhat playfully, although seriously, as well.
With respect to Charles Socarides. According to him, gender disorder is the result of "early (age two or so) gender identification with the opposite-sex parent figure" due to "faulty bonding and identification with the same-sex parent figure." As you say, his theory is that this "creates a chronic state of emotional neediness."
There is, of course, a wonderful irony here that may explain Charles Socarides' obsession with homosexuality and its cure. As you no doubt know, Charles Socarides sired Richard Socarides, an extremely prominent homosexual who has long been one of the national leaders of the gay rights movement. Presumably, this occurred to poor Richard because Charles was so busy pursuing his career that he neglected his son, thus making him gay. Because, under his theory, this is not Richard's fault, but his own, Charles must find a way to absolve himself of responsibility for this horrible development.
And so, voila, he discovers a "cure" for homosexuality. Richard's continuing homosexuality is no longer Daddy's fault, but Richard's own fault for refusing to take his "medicine." "If only Richard weren't so damn stubborn! I could cure him in a flash." And so Charles manages to expiate his guilt for what's he did to his little boy, while casting the blame onto the son. It's like something out of Saturday Night Life.
O.K., now let's get more serious. Let's take Charles Socarides at his word and assume hypothetically that homosexuality is caused by faulty bonding with the opposite sex parent in early childhood and that with some form of therapy the effects of this faulty bonding can be reversed. The fundamental question is: Should it be?
Many of our personal and psychological characteristics are shaped in early childhood. Are we confident or insecure? Are we aggressive or passive? Are we curious or dull? Are we overachievers or underachievers? Etc., etc. Indeed, this is largely what psychiatry is about. But psychiatry doesn't define all of these characteristics as mental disorders. The vast majority, though due in part to the quirks of early childhood, are regarded as within the realm of ordinary human behavior.
Some people would rather be different than they are and they are certainly free to seek psychotherapy or some other means of personal transformation to makes themselves "better" or happier people, but we don't consider these characteristics mental disorders. In my view, people who are unhappy with who they are should certainly be free to try to change. They may want to be more confident, more ambitious, more loving, less sexually repressed, more generous, less consumed with the approval of others, and so on.
Is homosexuality in the category of characteristics that should be regarded as mental disorders or in the much broader category of personal characteristics and psychological tendencies framed by our experiences in early childhood? Is it more like bipolar disorder or lack of self-confidence or eagerness to achieve?
Throughout most of the twentieth century, homosexuality was thought to be like bipolar disorder. It was seen as a mental disability (whether due to genetics, upbringing, or a combination of the two) that was clearly dysfunctional and that needed to be changed in order for people suffering from the disorder to lead a normal, functional, happy life. The problem with this understanding, as the profession gradually came to understand, is that the primary problem faced by homosexuals turns out to be imposed on them by the animus, discrimination and antipathy of others. Left to their own devices, homosexuals turn out to be just as capable as other people and just as able to lead happy, successful and fulfilling lives as other people -- except for the discrimination and antagonism they face.
Once the medical profession came to understand this, it recognized (correctly, in my view) that although homosexuality may be caused or affected by early childhood experiences, there is nothing inherently wrong with homosexuality, any more than there is anything inherently wrong with being overconfident, or insufficiently confident, or overly amibitious, or more shy than usual. Viewed in that light, what needs fixing is not homosexuality, but society's response to homosexuality. It would be as if our society's norms led the vast majority of people to despise and persecute shy people. This would make shy people miserable. They would want to mask their shyness and would do everything they could to be different than they are. But once we realized that there's really nothing wrong with shy people and that the problem instead is our persecution of shy people, the obvious right solution is not to torment and torture shy people for the actions of their parents but to recognize that they should be allowed to be who they are. I suspect this was the central insight that led to the change in the DSM. It was simply about recognizing that the only psychological problem with homosexuality was not the result of homosexuality but the result of our society's treatment of homosexuals.
Now, this brings us to what for you is really the crux of the matter. As you so emphatically note, you regard homosexuality as immoral. Thus, even if people who are homosexual aren't at fault for being homosexual, their behavior is immoral. It would be as if, because of their early childhood experiences, a particular type of person had a strong orientation toward child sexual abuse. I would certainly agree with you that child sexual abuse is immoral, that it should be punished, and that people so inclined should seek therapy.
But there is a fundamental difference between child sexual abusers and homosexuals. The former are clearly and unequivocably doing something we regard as seriously harmful to children -- who are
not legally competent to make sound decisions for themselves. Whether or not people inclined to engage in child sexual abuse can effectively be treated psychologically, their behavior is clearly immoral because they are directly harming others persons. Homosexuals, however, who have relations with other consenting adults, are merely engaging in consensual sex. To find this to be immoral requires a much more complicated conception of immorality.
In my view, as I said before, the central test of immoral behavior is the "do unto others" precept. Applying that test to homosexuality, I see no rational reason to view consenting homosexual sex as immoral. I understand, of course, that religion has often held it to be immoral, but the really interesting question
is . . . why? The usual answer is that it is unnatural. But flying at 30,000 feet, walking on our hands, and surviving cancer are also unnatural. So what? In any event, one person's religious belief is no reason for interfering with other person's freedom. In my view, to treat a class of persons as pariahs when they have done nothing to harm others and (as Charles Socarides says) they have not chosen to be who they are is itself immoral.
G-B: You poor, poor man.
G-B: Homosexuality is abnormal, treatable. The truth will out. See www.narth.com; www.gaytostraight.org; www.josephnicolosi.com; www.pfox.org
GRS: So, here are my thoughts, in brief, on this subject. For all of human history, until the end of the nineteenth century, people who engaged in homosexual sex were not thought to be different from others, except in their conduct. Some people like oral sex, some don't. Some people like homosexual sex, some don't. On that understanding, homosexual conduct was merely a variant of sodomy (which included pretty much all nonreproductive sex), and because it was simply a choice it was easy to condemn people who engaged in homosexual sex as sinners and criminals, just as one might condemn burglars, rapists or murderers. In the late nineteenth century, however, psychologists began to understand that homosexuality was an orientation with which some people were born, and suddenly the idea of the "homosexual" as a type of person, rather than as a person who engaged in a particular kind of sex, came into being.
But what to make of this? The general (though not universal) view was that the homosexual orientation was a genetic defect, a genetic degeneracy, that needed "fixing." This led to the notion, for the first time, that homosexuals didn't need criminal punishment, but treatment. Moreover, since this understanding suggested that having a homosexual orientation was inherent and not a matter of "fault," the medical profession condemned the tradition punitive approach in favor of a therapeutic approach.
That led to an era from the beginning of the twentieth century until the mid-twentieth century is which doctors attempted to find ways to "cure" homosexuality. They tried everything from psychotherapy to aversion therapy to electric shock to castration to sterilization (and a lot more crazy things besides). Alas, the scientific conclusion was that the homosexual orientation really could not be "cured."
People could manage to control their behavior, within limits, but the orientation itself could not be eliminated. Thus, just as with sufficient discipline a person with a normal sexual drive can learn to live a celibate life or a person with a heterosexual orientation can learn to have homosexual sex (as in prisons and the military), some homosexuals can manage to have heterosexual sex. I don't know about you, but as a heterosexual myself, I would find it awfully difficult to behave as a homosexual, but I if my kids lives depended on it, for example, I suppose I could manage it.
In any event, it's extremely important to understand the difference between changing one's sexual orientation and changing one's sexual behavior. The latter can be changed, albeit with great difficulty; the former seems extremely resistant to change. Orientation is about desire, it's about what and who "turns you on." It's different from conduct. It's a bit like left-handedness. It is extremely difficult, if not impossible, to alter a person's natural left-handedness. That is an orientation with which some people are born. It is possible, with extraordinary difficulty, to train them to act as if they are right-handed, but it is artificial and they would be much better as lefties. (Of course, just as some people are bisexual, some people are ambidextrous. It's the way they are born.)
Now, I have no objection to a consenting adult who is unhappy with his sexual orientation trying to change it -- in either direction. That's entirely up to him. I would object to fraudulent promises of change, of course, as I would object to any fraudulent offer of medical treatment. But let's put that aside. Let's assume, although pretty much all the independent scientific evidence is to the contrary, that there are some forms of "reparative" therapy that can "cure" homosexuality. To the extent that is so, and to the extent people want to try, fine. There are, after all, plenty of reasons to want not to be homosexual in our society, even today, given the hostility, discrimination and condemnation still heaped upon homosexuals in some quarters.
The central issue, though, is whether a homosexual orientation should be thought to be something that needs to be cured or repaired or treated. On that score, I am adamant. The greatest insight we as a society have had in the last half-century with respect to homosexuals is that they do not need to be cured, repaired or treated. Life left-handedness, some people are homosexuals. There is no more reason for society to condemn homosexuals than there is for it to condemn lefties. Once we clear our heads, it becomes obvious that these are just people who have a different sexual orientation, and there is nothing inherently or morally "wrong" with that.
Of course, I understand that this flies in the face of some ancient religious beliefs, but I do not for a moment think that those beliefs should control our own good judgment and sense of decency and justice in the twenty-first century. I suppose that when it comes to religious beliefs, I think "do unto others" trumps everything else. So, if you want to tell people who are gay that if they'd rather not be gay you can help them, fine with me. But you really shouldn't think of it as "cure" or "repair" or "treat," any more than you would say you're going to "cure" someone of being left-handed. Cheers.
G-B: You just stay in that Leftist mental groove and never venture out of it. Groupthink. The truth is going to rock your world.
GRS: C'mon. You ask me for a reasoned response and then you offer this? Play fair. How about this: Go through my message and tell me PRECISELY what statements you think are wrong. Do it seriously.
G-B: It's clear you still haven't done the reading at www.narth.com and other websites. So you're really just talking to yourself. Sad. The real problem, Geoff, old pal, is that you ignored the info I gave you. The American Psychiatric Association is headed by lying Leftists. Face it.
Again, some readings: Charles Socarides, "Sexual Politics and Scientific Logic: The Issue of Homosexuality" and Joseph Nicolosi, "The Removal of Homosexuality from the Psychiatric Manual."
No science can tell you what's moral, anyway. But science can add information that can help one understand the nature of a thing--including a feeling. As long as you aren't willing to test your moral assumptions, you'll be stuck in an illusion--and mislead your readers. To repeat: Homosexuality and transgenderism are symptoms of deep-seated gender self-alienation. In homosexuality, the partner/object of desire is unconsciously used as a gender crutch. In transgenderism/gender identity disorder, there was early (age two or so) gender identification with the opposite-sex parent figure.
Faulty bonding and identification with the same-sex parent figure creates a chronic state of emotional neediness that later takes one of these forms. (Bisexuality is just a milder form of homosexuality, with normal development having been partially achieved.) Better parenting prevents these. Skilled psychodynamic psychotherapy and good platonic mentoring correct them. This takes years, even decades, as with other deep-seated disorders. The subject is psychology, not sociology or history.
You've got a lot to learn. It takes humility to realize one has been seriously wrong about something, and for a long time.
GRS: O.K, let's try to stay away from name-calling ("lying leftists" v. "right-wing crazies"). Here are some thoughts. Keep in mind that I mean what follows somewhat playfully, although seriously, as well.
With respect to Charles Socarides. According to him, gender disorder is the result of "early (age two or so) gender identification with the opposite-sex parent figure" due to "faulty bonding and identification with the same-sex parent figure." As you say, his theory is that this "creates a chronic state of emotional neediness."
There is, of course, a wonderful irony here that may explain Charles Socarides' obsession with homosexuality and its cure. As you no doubt know, Charles Socarides sired Richard Socarides, an extremely prominent homosexual who has long been one of the national leaders of the gay rights movement. Presumably, this occurred to poor Richard because Charles was so busy pursuing his career that he neglected his son, thus making him gay. Because, under his theory, this is not Richard's fault, but his own, Charles must find a way to absolve himself of responsibility for this horrible development.
And so, voila, he discovers a "cure" for homosexuality. Richard's continuing homosexuality is no longer Daddy's fault, but Richard's own fault for refusing to take his "medicine." "If only Richard weren't so damn stubborn! I could cure him in a flash." And so Charles manages to expiate his guilt for what's he did to his little boy, while casting the blame onto the son. It's like something out of Saturday Night Life.
O.K., now let's get more serious. Let's take Charles Socarides at his word and assume hypothetically that homosexuality is caused by faulty bonding with the opposite sex parent in early childhood and that with some form of therapy the effects of this faulty bonding can be reversed. The fundamental question is: Should it be?
Many of our personal and psychological characteristics are shaped in early childhood. Are we confident or insecure? Are we aggressive or passive? Are we curious or dull? Are we overachievers or underachievers? Etc., etc. Indeed, this is largely what psychiatry is about. But psychiatry doesn't define all of these characteristics as mental disorders. The vast majority, though due in part to the quirks of early childhood, are regarded as within the realm of ordinary human behavior.
Some people would rather be different than they are and they are certainly free to seek psychotherapy or some other means of personal transformation to makes themselves "better" or happier people, but we don't consider these characteristics mental disorders. In my view, people who are unhappy with who they are should certainly be free to try to change. They may want to be more confident, more ambitious, more loving, less sexually repressed, more generous, less consumed with the approval of others, and so on.
Is homosexuality in the category of characteristics that should be regarded as mental disorders or in the much broader category of personal characteristics and psychological tendencies framed by our experiences in early childhood? Is it more like bipolar disorder or lack of self-confidence or eagerness to achieve?
Throughout most of the twentieth century, homosexuality was thought to be like bipolar disorder. It was seen as a mental disability (whether due to genetics, upbringing, or a combination of the two) that was clearly dysfunctional and that needed to be changed in order for people suffering from the disorder to lead a normal, functional, happy life. The problem with this understanding, as the profession gradually came to understand, is that the primary problem faced by homosexuals turns out to be imposed on them by the animus, discrimination and antipathy of others. Left to their own devices, homosexuals turn out to be just as capable as other people and just as able to lead happy, successful and fulfilling lives as other people -- except for the discrimination and antagonism they face.
Once the medical profession came to understand this, it recognized (correctly, in my view) that although homosexuality may be caused or affected by early childhood experiences, there is nothing inherently wrong with homosexuality, any more than there is anything inherently wrong with being overconfident, or insufficiently confident, or overly amibitious, or more shy than usual. Viewed in that light, what needs fixing is not homosexuality, but society's response to homosexuality. It would be as if our society's norms led the vast majority of people to despise and persecute shy people. This would make shy people miserable. They would want to mask their shyness and would do everything they could to be different than they are. But once we realized that there's really nothing wrong with shy people and that the problem instead is our persecution of shy people, the obvious right solution is not to torment and torture shy people for the actions of their parents but to recognize that they should be allowed to be who they are. I suspect this was the central insight that led to the change in the DSM. It was simply about recognizing that the only psychological problem with homosexuality was not the result of homosexuality but the result of our society's treatment of homosexuals.
Now, this brings us to what for you is really the crux of the matter. As you so emphatically note, you regard homosexuality as immoral. Thus, even if people who are homosexual aren't at fault for being homosexual, their behavior is immoral. It would be as if, because of their early childhood experiences, a particular type of person had a strong orientation toward child sexual abuse. I would certainly agree with you that child sexual abuse is immoral, that it should be punished, and that people so inclined should seek therapy.
But there is a fundamental difference between child sexual abusers and homosexuals. The former are clearly and unequivocably doing something we regard as seriously harmful to children -- who are
not legally competent to make sound decisions for themselves. Whether or not people inclined to engage in child sexual abuse can effectively be treated psychologically, their behavior is clearly immoral because they are directly harming others persons. Homosexuals, however, who have relations with other consenting adults, are merely engaging in consensual sex. To find this to be immoral requires a much more complicated conception of immorality.
In my view, as I said before, the central test of immoral behavior is the "do unto others" precept. Applying that test to homosexuality, I see no rational reason to view consenting homosexual sex as immoral. I understand, of course, that religion has often held it to be immoral, but the really interesting question
is . . . why? The usual answer is that it is unnatural. But flying at 30,000 feet, walking on our hands, and surviving cancer are also unnatural. So what? In any event, one person's religious belief is no reason for interfering with other person's freedom. In my view, to treat a class of persons as pariahs when they have done nothing to harm others and (as Charles Socarides says) they have not chosen to be who they are is itself immoral.
G-B: You poor, poor man.
April 9, 2013
Conversation with a "Gay-Buster"
After a recent huff post on the rights of gays and lesbians, I received an email from an activist opponent of same-sex marriage and proponent of the notion that homosexuals are defective people who must be "fixed." I have had exchanges with this person in the past. I decided to share this exchange. The "gay-buster" is G-B; I am GRS.
G-B: Homosexuality is abnormal, treatable. The truth will out. See www.narth.com; www.gaytostraight.org; www.josephnicolosi.com; www.pfox.org
GRS: So, here are my thoughts, in brief, on this subject. For all of human history, until the end of the nineteenth century, people who engaged in homosexual sex were not thought to be different from others, except in their conduct. Some people like oral sex, some don't. Some people like homosexual sex, some don't. On that understanding, homosexual conduct was merely a variant of sodomy (which included pretty much all nonreproductive sex), and because it was simply a choice it was easy to condemn people who engaged in homosexual sex as sinners and criminals, just as one might condemn burglars, rapists or murderers. In the late nineteenth century, however, psychologists began to understand that homosexuality was an orientation with which some people were born, and suddenly the idea of the "homosexual" as a type of person, rather than as a person who engaged in a particular kind of sex, came into being.
But what to make of this? The general (though not universal) view was that the homosexual orientation was a genetic defect, a genetic degeneracy, that needed "fixing." This led to the notion, for the first time, that homosexuals didn't need criminal punishment, but treatment. Moreover, since this understanding suggested that having a homosexual orientation was inherent and not a matter of "fault," the medical profession condemned the tradition punitive approach in favor of a therapeutic approach.
That led to an era from the beginning of the twentieth century until the mid-twentieth century is which doctors attempted to find ways to "cure" homosexuality. They tried everything from psychotherapy to aversion therapy to electric shock to castration to sterilization (and a lot more crazy things besides). Alas, the scientific conclusion was that the homosexual orientation really could not be "cured."
People could manage to control their behavior, within limits, but the orientation itself could not be eliminated. Thus, just as with sufficient discipline a person with a normal sexual drive can learn to live a celibate life or a person with a heterosexual orientation can learn to have homosexual sex (as in prisons and the military), some homosexuals can manage to have heterosexual sex. I don't know about you, but as a heterosexual myself, I would find it awfully difficult to behave as a homosexual, but I if my kids lives depended on it, for example, I suppose I could manage it.
In any event, it's extremely important to understand the difference between changing one's sexual orientation and changing one's sexual behavior. The latter can be changed, albeit with great difficulty; the former seems extremely resistant to change. Orientation is about desire, it's about what and who "turns you on." It's different from conduct. It's a bit like left-handedness. It is extremely difficult, if not impossible, to alter a person's natural left-handedness. That is an orientation with which some people are born. It is possible, with extraordinary difficulty, to train them to act as if they are right-handed, but it is artificial and they would be much better as lefties. (Of course, just as some people are bisexual, some people are ambidextrous. It's the way they are born.)
Now, I have no objection to a consenting adult who is unhappy with his sexual orientation trying to change it -- in either direction. That's entirely up to him. I would object to fraudulent promises of change, of course, as I would object to any fraudulent offer of medical treatment. But let's put that aside. Let's assume, although pretty much all the independent scientific evidence is to the contrary, that there are some forms of "reparative" therapy that can "cure" homosexuality. To the extent that is so, and to the extent people want to try, fine. There are, after all, plenty of reasons to want not to be homosexual in our society, even today, given the hostility, discrimination and condemnation still heaped upon homosexuals in some quarters.
The central issue, though, is whether a homosexual orientation should be thought to be something that needs to be cured or repaired or treated. On that score, I am adamant. The greatest insight we as a society have had in the last half-century with respect to homosexuals is that they do not need to be cured, repaired or treated. Life left-handedness, some people are homosexuals. There is no more reason for society to condemn homosexuals than there is for it to condemn lefties. Once we clear our heads, it becomes obvious that these are just people who have a different sexual orientation, and there is nothing inherently or morally "wrong" with that.
Of course, I understand that this flies in the face of some ancient religious beliefs, but I do not for a moment think that those beliefs should control our own good judgment and sense of decency and justice in the twenty-first century. I suppose that when it comes to religious beliefs, I think "do unto others" trumps everything else. So, if you want to tell people who are gay that if they'd rather not be gay you can help them, fine with me. But you really shouldn't think of it as "cure" or "repair" or "treat," any more than you would say you're going to "cure" someone of being left-handed. Cheers.
G-B: You just stay in that Leftist mental groove and never venture out of it. Groupthink. The truth is going to rock your world.
GRS: C'mon. You ask me for a reasoned response and then you offer this? Play fair. How about this: Go through my message and tell me PRECISELY what statements you think are wrong. Do it seriously.
G-B: It's clear you still haven't done the reading at www.narth.com and other websites. So you're really just talking to yourself. Sad. The real problem, Geoff, old pal, is that you ignored the info I gave you. The American Psychiatric Association is headed by lying Leftists. Face it.
Again, some readings: Charles Socarides, "Sexual Politics and Scientific Logic: The Issue of Homosexuality" and Joseph Nicolosi, "The Removal of Homosexuality from the Psychiatric Manual."
No science can tell you what's moral, anyway. But science can add information that can help one understand the nature of a thing--including a feeling. As long as you aren't willing to test your moral assumptions, you'll be stuck in an illusion--and mislead your readers. To repeat: Homosexuality and transgenderism are symptoms of deep-seated gender self-alienation. In homosexuality, the partner/object of desire is unconsciously used as a gender crutch. In transgenderism/gender identity disorder, there was early (age two or so) gender identification with the opposite-sex parent figure.
Faulty bonding and identification with the same-sex parent figure creates a chronic state of emotional neediness that later takes one of these forms. (Bisexuality is just a milder form of homosexuality, with normal development having been partially achieved.) Better parenting prevents these. Skilled psychodynamic psychotherapy and good platonic mentoring correct them. This takes years, even decades, as with other deep-seated disorders. The subject is psychology, not sociology or history.
You've got a lot to learn. It takes humility to realize one has been seriously wrong about something, and for a long time.
GRS: O.K, let's try to stay away from name-calling ("lying leftists" v. "right-wing crazies"). Here are some thoughts. Keep in mind that I mean what follows somewhat playfully, although seriously, as well.
With respect to Charles Socarides. According to him, gender disorder is the result of "early (age two or so) gender identification with the opposite-sex parent figure" due to "faulty bonding and identification with the same-sex parent figure." As you say, his theory is that this "creates a chronic state of emotional neediness."
There is, of course, a wonderful irony here that may explain Charles Socarides' obsession with homosexuality and its cure. As you no doubt know, Charles Socarides sired Richard Socarides, an extremely prominent homosexual who has long been one of the national leaders of the gay rights movement. Presumably, this occurred to poor Richard because Charles was so busy pursuing his career that he neglected his son, thus making him gay. Because, under his theory, this is not Richard's fault, but his own, Charles must find a way to absolve himself of responsibility for this horrible development.
And so, voila, he discovers a "cure" for homosexuality. Richard's continuing homosexuality is no longer Daddy's fault, but Richard's own fault for refusing to take his "medicine." "If only Richard weren't so damn stubborn! I could cure him in a flash." And so Charles manages to expiate his guilt for what's he did to his little boy, while casting the blame onto the son. It's like something out of Saturday Night Life.
O.K., now let's get more serious. Let's take Charles Socarides at his word and assume hypothetically that homosexuality is caused by faulty bonding with the opposite sex parent in early childhood and that with some form of therapy the effects of this faulty bonding can be reversed. The fundamental question is: Should it be?
Many of our personal and psychological characteristics are shaped in early childhood. Are we confident or insecure? Are we aggressive or passive? Are we curious or dull? Are we overachievers or underachievers? Etc., etc. Indeed, this is largely what psychiatry is about. But psychiatry doesn't define all of these characteristics as mental disorders. The vast majority, though due in part to the quirks of early childhood, are regarded as within the realm of ordinary human behavior.
Some people would rather be different than they are and they are certainly free to seek psychotherapy or some other means of personal transformation to makes themselves "better" or happier people, but we don't consider these characteristics mental disorders. In my view, people who are unhappy with who they are should certainly be free to try to change. They may want to be more confident, more ambitious, more loving, less sexually repressed, more generous, less consumed with the approval of others, and so on.
Is homosexuality in the category of characteristics that should be regarded as mental disorders or in the much broader category of personal characteristics and psychological tendencies framed by our experiences in early childhood? Is it more like bipolar disorder or lack of self-confidence or eagerness to achieve?
Throughout most of the twentieth century, homosexuality was thought to be like bipolar disorder. It was seen as a mental disability (whether due to genetics, upbringing, or a combination of the two) that was clearly dysfunctional and that needed to be changed in order for people suffering from the disorder to lead a normal, functional, happy life. The problem with this understanding, as the profession gradually came to understand, is that the primary problem faced by homosexuals turns out to be imposed on them by the animus, discrimination and antipathy of others. Left to their own devices, homosexuals turn out to be just as capable as other people and just as able to lead happy, successful and fulfilling lives as other people -- except for the discrimination and antagonism they face.
Once the medical profession came to understand this, it recognized (correctly, in my view) that although homosexuality may be caused or affected by early childhood experiences, there is nothing inherently wrong with homosexuality, any more than there is anything inherently wrong with being overconfident, or insufficiently confident, or overly amibitious, or more shy than usual. Viewed in that light, what needs fixing is not homosexuality, but society's response to homosexuality. It would be as if our society's norms led the vast majority of people to despise and persecute shy people. This would make shy people miserable. They would want to mask their shyness and would do everything they could to be different than they are. But once we realized that there's really nothing wrong with shy people and that the problem instead is our persecution of shy people, the obvious right solution is not to torment and torture shy people for the actions of their parents but to recognize that they should be allowed to be who they are. I suspect this was the central insight that led to the change in the DSM. It was simply about recognizing that the only psychological problem with homosexuality was not the result of homosexuality but the result of our society's treatment of homosexuals.
Now, this brings us to what for you is really the crux of the matter. As you so emphatically note, you regard homosexuality as immoral. Thus, even if people who are homosexual aren't at fault for being homosexual, their behavior is immoral. It would be as if, because of their early childhood experiences, a particular type of person had a strong orientation toward child sexual abuse. I would certainly agree with you that child sexual abuse is immoral, that it should be punished, and that people so inclined should seek therapy.
But there is a fundamental difference between child sexual abusers and homosexuals. The former are clearly and unequivocably doing something we regard as seriously harmful to children -- who are
not legally competent to make sound decisions for themselves. Whether or not people inclined to engage in child sexual abuse can effectively be treated psychologically, their behavior is clearly immoral because they are directly harming others persons. Homosexuals, however, who have relations with other consenting adults, are merely engaging in consensual sex. To find this to be immoral requires a much more complicated conception of immorality.
In my view, as I said before, the central test of immoral behavior is the "do unto others" precept. Applying that test to homosexuality, I see no rational reason to view consenting homosexual sex as immoral. I understand, of course, that religion has often held it to be immoral, but the really interesting question
is . . . why? The usual answer is that it is unnatural. But flying at 30,000 feet, walking on our hands, and surviving cancer are also unnatural. So what? In any event, one person's religious belief is no reason for interfering with other person's freedom. In my view, to treat a class of persons as pariahs when they have done nothing to harm others and (as Charles Socarides says) they have not chosen to be who they are is itself immoral.
G-B: You poor, poor man.
G-B: Homosexuality is abnormal, treatable. The truth will out. See www.narth.com; www.gaytostraight.org; www.josephnicolosi.com; www.pfox.org
GRS: So, here are my thoughts, in brief, on this subject. For all of human history, until the end of the nineteenth century, people who engaged in homosexual sex were not thought to be different from others, except in their conduct. Some people like oral sex, some don't. Some people like homosexual sex, some don't. On that understanding, homosexual conduct was merely a variant of sodomy (which included pretty much all nonreproductive sex), and because it was simply a choice it was easy to condemn people who engaged in homosexual sex as sinners and criminals, just as one might condemn burglars, rapists or murderers. In the late nineteenth century, however, psychologists began to understand that homosexuality was an orientation with which some people were born, and suddenly the idea of the "homosexual" as a type of person, rather than as a person who engaged in a particular kind of sex, came into being.
But what to make of this? The general (though not universal) view was that the homosexual orientation was a genetic defect, a genetic degeneracy, that needed "fixing." This led to the notion, for the first time, that homosexuals didn't need criminal punishment, but treatment. Moreover, since this understanding suggested that having a homosexual orientation was inherent and not a matter of "fault," the medical profession condemned the tradition punitive approach in favor of a therapeutic approach.
That led to an era from the beginning of the twentieth century until the mid-twentieth century is which doctors attempted to find ways to "cure" homosexuality. They tried everything from psychotherapy to aversion therapy to electric shock to castration to sterilization (and a lot more crazy things besides). Alas, the scientific conclusion was that the homosexual orientation really could not be "cured."
People could manage to control their behavior, within limits, but the orientation itself could not be eliminated. Thus, just as with sufficient discipline a person with a normal sexual drive can learn to live a celibate life or a person with a heterosexual orientation can learn to have homosexual sex (as in prisons and the military), some homosexuals can manage to have heterosexual sex. I don't know about you, but as a heterosexual myself, I would find it awfully difficult to behave as a homosexual, but I if my kids lives depended on it, for example, I suppose I could manage it.
In any event, it's extremely important to understand the difference between changing one's sexual orientation and changing one's sexual behavior. The latter can be changed, albeit with great difficulty; the former seems extremely resistant to change. Orientation is about desire, it's about what and who "turns you on." It's different from conduct. It's a bit like left-handedness. It is extremely difficult, if not impossible, to alter a person's natural left-handedness. That is an orientation with which some people are born. It is possible, with extraordinary difficulty, to train them to act as if they are right-handed, but it is artificial and they would be much better as lefties. (Of course, just as some people are bisexual, some people are ambidextrous. It's the way they are born.)
Now, I have no objection to a consenting adult who is unhappy with his sexual orientation trying to change it -- in either direction. That's entirely up to him. I would object to fraudulent promises of change, of course, as I would object to any fraudulent offer of medical treatment. But let's put that aside. Let's assume, although pretty much all the independent scientific evidence is to the contrary, that there are some forms of "reparative" therapy that can "cure" homosexuality. To the extent that is so, and to the extent people want to try, fine. There are, after all, plenty of reasons to want not to be homosexual in our society, even today, given the hostility, discrimination and condemnation still heaped upon homosexuals in some quarters.
The central issue, though, is whether a homosexual orientation should be thought to be something that needs to be cured or repaired or treated. On that score, I am adamant. The greatest insight we as a society have had in the last half-century with respect to homosexuals is that they do not need to be cured, repaired or treated. Life left-handedness, some people are homosexuals. There is no more reason for society to condemn homosexuals than there is for it to condemn lefties. Once we clear our heads, it becomes obvious that these are just people who have a different sexual orientation, and there is nothing inherently or morally "wrong" with that.
Of course, I understand that this flies in the face of some ancient religious beliefs, but I do not for a moment think that those beliefs should control our own good judgment and sense of decency and justice in the twenty-first century. I suppose that when it comes to religious beliefs, I think "do unto others" trumps everything else. So, if you want to tell people who are gay that if they'd rather not be gay you can help them, fine with me. But you really shouldn't think of it as "cure" or "repair" or "treat," any more than you would say you're going to "cure" someone of being left-handed. Cheers.
G-B: You just stay in that Leftist mental groove and never venture out of it. Groupthink. The truth is going to rock your world.
GRS: C'mon. You ask me for a reasoned response and then you offer this? Play fair. How about this: Go through my message and tell me PRECISELY what statements you think are wrong. Do it seriously.
G-B: It's clear you still haven't done the reading at www.narth.com and other websites. So you're really just talking to yourself. Sad. The real problem, Geoff, old pal, is that you ignored the info I gave you. The American Psychiatric Association is headed by lying Leftists. Face it.
Again, some readings: Charles Socarides, "Sexual Politics and Scientific Logic: The Issue of Homosexuality" and Joseph Nicolosi, "The Removal of Homosexuality from the Psychiatric Manual."
No science can tell you what's moral, anyway. But science can add information that can help one understand the nature of a thing--including a feeling. As long as you aren't willing to test your moral assumptions, you'll be stuck in an illusion--and mislead your readers. To repeat: Homosexuality and transgenderism are symptoms of deep-seated gender self-alienation. In homosexuality, the partner/object of desire is unconsciously used as a gender crutch. In transgenderism/gender identity disorder, there was early (age two or so) gender identification with the opposite-sex parent figure.
Faulty bonding and identification with the same-sex parent figure creates a chronic state of emotional neediness that later takes one of these forms. (Bisexuality is just a milder form of homosexuality, with normal development having been partially achieved.) Better parenting prevents these. Skilled psychodynamic psychotherapy and good platonic mentoring correct them. This takes years, even decades, as with other deep-seated disorders. The subject is psychology, not sociology or history.
You've got a lot to learn. It takes humility to realize one has been seriously wrong about something, and for a long time.
GRS: O.K, let's try to stay away from name-calling ("lying leftists" v. "right-wing crazies"). Here are some thoughts. Keep in mind that I mean what follows somewhat playfully, although seriously, as well.
With respect to Charles Socarides. According to him, gender disorder is the result of "early (age two or so) gender identification with the opposite-sex parent figure" due to "faulty bonding and identification with the same-sex parent figure." As you say, his theory is that this "creates a chronic state of emotional neediness."
There is, of course, a wonderful irony here that may explain Charles Socarides' obsession with homosexuality and its cure. As you no doubt know, Charles Socarides sired Richard Socarides, an extremely prominent homosexual who has long been one of the national leaders of the gay rights movement. Presumably, this occurred to poor Richard because Charles was so busy pursuing his career that he neglected his son, thus making him gay. Because, under his theory, this is not Richard's fault, but his own, Charles must find a way to absolve himself of responsibility for this horrible development.
And so, voila, he discovers a "cure" for homosexuality. Richard's continuing homosexuality is no longer Daddy's fault, but Richard's own fault for refusing to take his "medicine." "If only Richard weren't so damn stubborn! I could cure him in a flash." And so Charles manages to expiate his guilt for what's he did to his little boy, while casting the blame onto the son. It's like something out of Saturday Night Life.
O.K., now let's get more serious. Let's take Charles Socarides at his word and assume hypothetically that homosexuality is caused by faulty bonding with the opposite sex parent in early childhood and that with some form of therapy the effects of this faulty bonding can be reversed. The fundamental question is: Should it be?
Many of our personal and psychological characteristics are shaped in early childhood. Are we confident or insecure? Are we aggressive or passive? Are we curious or dull? Are we overachievers or underachievers? Etc., etc. Indeed, this is largely what psychiatry is about. But psychiatry doesn't define all of these characteristics as mental disorders. The vast majority, though due in part to the quirks of early childhood, are regarded as within the realm of ordinary human behavior.
Some people would rather be different than they are and they are certainly free to seek psychotherapy or some other means of personal transformation to makes themselves "better" or happier people, but we don't consider these characteristics mental disorders. In my view, people who are unhappy with who they are should certainly be free to try to change. They may want to be more confident, more ambitious, more loving, less sexually repressed, more generous, less consumed with the approval of others, and so on.
Is homosexuality in the category of characteristics that should be regarded as mental disorders or in the much broader category of personal characteristics and psychological tendencies framed by our experiences in early childhood? Is it more like bipolar disorder or lack of self-confidence or eagerness to achieve?
Throughout most of the twentieth century, homosexuality was thought to be like bipolar disorder. It was seen as a mental disability (whether due to genetics, upbringing, or a combination of the two) that was clearly dysfunctional and that needed to be changed in order for people suffering from the disorder to lead a normal, functional, happy life. The problem with this understanding, as the profession gradually came to understand, is that the primary problem faced by homosexuals turns out to be imposed on them by the animus, discrimination and antipathy of others. Left to their own devices, homosexuals turn out to be just as capable as other people and just as able to lead happy, successful and fulfilling lives as other people -- except for the discrimination and antagonism they face.
Once the medical profession came to understand this, it recognized (correctly, in my view) that although homosexuality may be caused or affected by early childhood experiences, there is nothing inherently wrong with homosexuality, any more than there is anything inherently wrong with being overconfident, or insufficiently confident, or overly amibitious, or more shy than usual. Viewed in that light, what needs fixing is not homosexuality, but society's response to homosexuality. It would be as if our society's norms led the vast majority of people to despise and persecute shy people. This would make shy people miserable. They would want to mask their shyness and would do everything they could to be different than they are. But once we realized that there's really nothing wrong with shy people and that the problem instead is our persecution of shy people, the obvious right solution is not to torment and torture shy people for the actions of their parents but to recognize that they should be allowed to be who they are. I suspect this was the central insight that led to the change in the DSM. It was simply about recognizing that the only psychological problem with homosexuality was not the result of homosexuality but the result of our society's treatment of homosexuals.
Now, this brings us to what for you is really the crux of the matter. As you so emphatically note, you regard homosexuality as immoral. Thus, even if people who are homosexual aren't at fault for being homosexual, their behavior is immoral. It would be as if, because of their early childhood experiences, a particular type of person had a strong orientation toward child sexual abuse. I would certainly agree with you that child sexual abuse is immoral, that it should be punished, and that people so inclined should seek therapy.
But there is a fundamental difference between child sexual abusers and homosexuals. The former are clearly and unequivocably doing something we regard as seriously harmful to children -- who are
not legally competent to make sound decisions for themselves. Whether or not people inclined to engage in child sexual abuse can effectively be treated psychologically, their behavior is clearly immoral because they are directly harming others persons. Homosexuals, however, who have relations with other consenting adults, are merely engaging in consensual sex. To find this to be immoral requires a much more complicated conception of immorality.
In my view, as I said before, the central test of immoral behavior is the "do unto others" precept. Applying that test to homosexuality, I see no rational reason to view consenting homosexual sex as immoral. I understand, of course, that religion has often held it to be immoral, but the really interesting question
is . . . why? The usual answer is that it is unnatural. But flying at 30,000 feet, walking on our hands, and surviving cancer are also unnatural. So what? In any event, one person's religious belief is no reason for interfering with other person's freedom. In my view, to treat a class of persons as pariahs when they have done nothing to harm others and (as Charles Socarides says) they have not chosen to be who they are is itself immoral.
G-B: You poor, poor man.
March 27, 2013
The Same-Sex Marriage Cases: Snatching Victory...
It is always risky to predict what the Supreme Court will do in a case based on the oral argument. Justices ask questions of the lawyers for a variety of reasons and the questions do not always reveal what the justices are actually thinking. Some questions, for example, are genuinely designed to help a justice think through the logic of the advocate's argument, whereas others are intended to demonstrate weaknesses in the advocate's position in an effort to "educate" other justices. Knowing exactly what is motivating any particular question is a tricky business and prognosticators often misjudge what's really going on.
Having offered this caveat, let me now offer my own predictions about Perry and Windsor. (To understand the title, you have to read to the end!)
In Perry, which involves the constitutionality of Proposition 8, several possible outcomes are on the table:
First, the Court could hold that Proposition 8 (which denied same-same couples the right to marry) is constitutional. That will not happen. At the very least, five justices -- Kennedy, Ginsburg, Breyer, Sotomayor and Kagan -- absolutely will not accept that position. I guarantee it. They will not be party to the modern equivalent of Plessy v. Ferguson.
Second, there is the opposite possibility -- the Court will hold that Proposition 8 is unconstitutional and that any law denying the right of same-sex couples to marry is unconstitutional. I am confident that if these nine justices had no choice but to choose between the first and second possibilities, at least five of them would opt for the second (Kennedy, Ginsburg, Breyer, Sotomayor and Kagan). That, in my view, would be the "right" result under the Constitution.
But the justices are unlikely to reach that result. This is so because, as revealed in the oral argument, at least a few of these five justices seem concerned about the Court getting too far ahead of public opinion. Rather than hand down a decision that might trigger a fury of opposition, they seem inclined to let the matter percolate for a while longer before reaching the "right" decision.
This is unfortunate, but understandable. It is understandable because, like most of us, the justices want things to go smoothly. It is unfortunate because, while the justices bide their time, tens of thousands of individuals and their children will be denied the many important benefits of marriage and will continue to be subjected to the indignity of second-class citizenship.
Third, there is the possibility that the Court will hold Proposition 8 unconstitutional on narrow grounds. For example, the Court could hold Proposition 8 unconstitutional for reasons directly connected to the situation in California -- without deciding whether other states must also allow same-sex marriage. The United States argued in Perry, for example, that Proposition 8 is unconstitutional because a state (like California) that allows civil unions does not have a sufficiently persuasive reason for not taking the additional step of allowing same-sex marriage.
It appears from the oral argument that at least some of the five justices who seem sympathetic to a constitutional right to same-sex marriage are not enamored of this approach. Although this argument has a certain logic, and has the benefit of proceeding one step at a time, Justice Ginsburg and others seemed to think it "odd" to hold that a state that goes three-fourths of the way has to go all the way, whereas a state that is still on the starting line can simply stay there.
Fourth, the Court can essentially ditch the case and avoid the core issue completely. It can do this in one of two ways. It can hold that the defenders of Proposition 8, who were allowed by the lower courts to intervene in the case, do not have "standing" to represent the interests of California when California itself has refused to defend the law. On that view, the Court would essentially punt and reach no decision on the constitutionality of Proposition 8. That would reinstate the decision of the lower federal court to the effect that Proposition 8 is unconstitutional. Alternatively, as suggested by Justice Kennedy during the oral argument, the Court could simply dismiss the case without reaching any decision at all (even on the issue of standing) and just say, in effect, "Sorry for wasting everyone's time, but we shouldn't have agreed to hear this case." The Court does do this on occasion.
The general consensus among Court-watchers seems to be that the Court will adopt some version of the fourth possibility, rendering the Court's review of Perry much ado about nothing. For those who feared that the Court might uphold Proposition 8, this is a welcome outcome. But because I am confident that there was zero risk that the Court would uphold Proposition 8, I find this outcome disappointing. If this is what the Court does, it will be a missed opportunity to move the law in the right direction, even if the Court chose to take only a half-step.
That brings me to Windsor -- the DOMA case. For purposes of federal benefits, DOMA defines "marriage" as including only a man and a woman. DOMA therefore denies more than 1,000 federal marriage benefits to same-sex couples who are legally married in their own states. What will the Court do with DOMA? There are three possibilities.
First, the Court might uphold DOMA. This will not happen. At the very least, five justices -- Kennedy, Ginsburg, Breyer, Sotomayor and Kagan -- absolutely will not accept that position. They will not affirmatively hold that the government can constitutionally deny same-sex couples the right to marry.
Second, the Court might hold DOMA unconstitutional on federalism grounds. This is the argument that seemed to engage Justice Kennedy. The argument is that because marriage is a matter within the constitutional authority of the states, the federal government has no business defining "marriage" in a way that excludes same-sex marriages that have been lawfully recognized by some of the states.
Although Justice Kennedy seems intrigued by this argument, he shouldn't be. It makes no sense. Although it would clearly violate principles of federalism for the federal government to prohibit states to recognize same-sex marriages or to require states to recognize marriages between 14-year-olds, the federal government can decide for itself how to distribute federal benefits. The federal government could decide, for example, to give federal benefits only to couples that who have been married for at least five years. Federal policies about eligibility for federal benefits do not sufficiently interfere with the authority of the states to violate the Constitution. In the end, I think Justice Kennedy will come to this conclusion. The federalism objection just doesn't fly.
Third, the Court might hold DOMA unconstitutional because it discriminates against gays and lesbians. This, I predict, is how the Court (or at least justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan) will resolve Windsor. In effect, they will hold that discrimination against gays and lesbians is presumptively unconstitutional under the Equal Protection Clause and that the federal government's interest in discriminating against legally married same-sex couples does not further a sufficiently important government interest to justify such discrimination.
This approach will leave unresolved the ultimate question of whether same-sex couples have a constitutional right to marry, because the state interests in denying same-sex couples the freedom to marry are different from the federal interests in declining to give equal benefits to legally married same-sex couples. Equally important, when the Court embraces this approach in Windsor it will take it 80 percent of the way towards holding that same-sex couples have a constitutional right to marry. And with that precedent in place, it will be only a matter time (hopefully, a short time), before the Court closes the loop.
Having offered this caveat, let me now offer my own predictions about Perry and Windsor. (To understand the title, you have to read to the end!)
In Perry, which involves the constitutionality of Proposition 8, several possible outcomes are on the table:
First, the Court could hold that Proposition 8 (which denied same-same couples the right to marry) is constitutional. That will not happen. At the very least, five justices -- Kennedy, Ginsburg, Breyer, Sotomayor and Kagan -- absolutely will not accept that position. I guarantee it. They will not be party to the modern equivalent of Plessy v. Ferguson.
Second, there is the opposite possibility -- the Court will hold that Proposition 8 is unconstitutional and that any law denying the right of same-sex couples to marry is unconstitutional. I am confident that if these nine justices had no choice but to choose between the first and second possibilities, at least five of them would opt for the second (Kennedy, Ginsburg, Breyer, Sotomayor and Kagan). That, in my view, would be the "right" result under the Constitution.
But the justices are unlikely to reach that result. This is so because, as revealed in the oral argument, at least a few of these five justices seem concerned about the Court getting too far ahead of public opinion. Rather than hand down a decision that might trigger a fury of opposition, they seem inclined to let the matter percolate for a while longer before reaching the "right" decision.
This is unfortunate, but understandable. It is understandable because, like most of us, the justices want things to go smoothly. It is unfortunate because, while the justices bide their time, tens of thousands of individuals and their children will be denied the many important benefits of marriage and will continue to be subjected to the indignity of second-class citizenship.
Third, there is the possibility that the Court will hold Proposition 8 unconstitutional on narrow grounds. For example, the Court could hold Proposition 8 unconstitutional for reasons directly connected to the situation in California -- without deciding whether other states must also allow same-sex marriage. The United States argued in Perry, for example, that Proposition 8 is unconstitutional because a state (like California) that allows civil unions does not have a sufficiently persuasive reason for not taking the additional step of allowing same-sex marriage.
It appears from the oral argument that at least some of the five justices who seem sympathetic to a constitutional right to same-sex marriage are not enamored of this approach. Although this argument has a certain logic, and has the benefit of proceeding one step at a time, Justice Ginsburg and others seemed to think it "odd" to hold that a state that goes three-fourths of the way has to go all the way, whereas a state that is still on the starting line can simply stay there.
Fourth, the Court can essentially ditch the case and avoid the core issue completely. It can do this in one of two ways. It can hold that the defenders of Proposition 8, who were allowed by the lower courts to intervene in the case, do not have "standing" to represent the interests of California when California itself has refused to defend the law. On that view, the Court would essentially punt and reach no decision on the constitutionality of Proposition 8. That would reinstate the decision of the lower federal court to the effect that Proposition 8 is unconstitutional. Alternatively, as suggested by Justice Kennedy during the oral argument, the Court could simply dismiss the case without reaching any decision at all (even on the issue of standing) and just say, in effect, "Sorry for wasting everyone's time, but we shouldn't have agreed to hear this case." The Court does do this on occasion.
The general consensus among Court-watchers seems to be that the Court will adopt some version of the fourth possibility, rendering the Court's review of Perry much ado about nothing. For those who feared that the Court might uphold Proposition 8, this is a welcome outcome. But because I am confident that there was zero risk that the Court would uphold Proposition 8, I find this outcome disappointing. If this is what the Court does, it will be a missed opportunity to move the law in the right direction, even if the Court chose to take only a half-step.
That brings me to Windsor -- the DOMA case. For purposes of federal benefits, DOMA defines "marriage" as including only a man and a woman. DOMA therefore denies more than 1,000 federal marriage benefits to same-sex couples who are legally married in their own states. What will the Court do with DOMA? There are three possibilities.
First, the Court might uphold DOMA. This will not happen. At the very least, five justices -- Kennedy, Ginsburg, Breyer, Sotomayor and Kagan -- absolutely will not accept that position. They will not affirmatively hold that the government can constitutionally deny same-sex couples the right to marry.
Second, the Court might hold DOMA unconstitutional on federalism grounds. This is the argument that seemed to engage Justice Kennedy. The argument is that because marriage is a matter within the constitutional authority of the states, the federal government has no business defining "marriage" in a way that excludes same-sex marriages that have been lawfully recognized by some of the states.
Although Justice Kennedy seems intrigued by this argument, he shouldn't be. It makes no sense. Although it would clearly violate principles of federalism for the federal government to prohibit states to recognize same-sex marriages or to require states to recognize marriages between 14-year-olds, the federal government can decide for itself how to distribute federal benefits. The federal government could decide, for example, to give federal benefits only to couples that who have been married for at least five years. Federal policies about eligibility for federal benefits do not sufficiently interfere with the authority of the states to violate the Constitution. In the end, I think Justice Kennedy will come to this conclusion. The federalism objection just doesn't fly.
Third, the Court might hold DOMA unconstitutional because it discriminates against gays and lesbians. This, I predict, is how the Court (or at least justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan) will resolve Windsor. In effect, they will hold that discrimination against gays and lesbians is presumptively unconstitutional under the Equal Protection Clause and that the federal government's interest in discriminating against legally married same-sex couples does not further a sufficiently important government interest to justify such discrimination.
This approach will leave unresolved the ultimate question of whether same-sex couples have a constitutional right to marry, because the state interests in denying same-sex couples the freedom to marry are different from the federal interests in declining to give equal benefits to legally married same-sex couples. Equally important, when the Court embraces this approach in Windsor it will take it 80 percent of the way towards holding that same-sex couples have a constitutional right to marry. And with that precedent in place, it will be only a matter time (hopefully, a short time), before the Court closes the loop.
March 20, 2013
'I Would Support Same-Sex Marriage... but for the Children!'
In a recent column in the Washington Post ("What comes after 'I do'?", March 15, 2013), columnist George F. Will trumpets a brief submitted by the conservative "Institute for Marriage and Public Policy" in the pending same-sex marriage cases for the proposition that the Supreme Court should be skeptical of social science data showing that children raised by same-sex couples are not harmed by having same-sex parents. Quoting the brief, Mr. Will cautions that such studies are unreliable because they have been "driven by politics and ideology."
Both the brief and Mr. Will have the argument backwards. It is those who would deny same-sex couples the right to marry on the premise that same-sex marriage is bad for children who must bear the burden of proof. And it is a heavy burden, indeed.
This is so because, for better or worse, we never prohibit individuals from marrying because of a concern that the marriage might not turn out well for the kids. To get a license to marry, no one in any state in the nation has to demonstrate even minimal competence as a parent. We routinely allow mixed-religion, mixed-class, mixed-race and May-December marriages, even though they might pose challenges to the children. Indeed, without asking even a single question about the possible impact on the children, we allow pimps, prostitutes, drug addicts, alcoholics, child abusers, corrupt politicians, rapists, adulterers and convicted murderers to marry.
Now, however, we are suddenly told that same-sex couples should not be allowed to marry because the absence of an opposite-sex parent might not be good for the kids. If ever there was a disingenuous, hypocritical, cynical and dishonest defense of a law, this is it. Whatever might be the real basis for objecting to same-sex marriage, this isn't it. This is nothing but a desperate after-the-fact rationalization designed to mask ignorance, prejudice and invidious discrimination. Mr. Will should know better.
Both the brief and Mr. Will have the argument backwards. It is those who would deny same-sex couples the right to marry on the premise that same-sex marriage is bad for children who must bear the burden of proof. And it is a heavy burden, indeed.
This is so because, for better or worse, we never prohibit individuals from marrying because of a concern that the marriage might not turn out well for the kids. To get a license to marry, no one in any state in the nation has to demonstrate even minimal competence as a parent. We routinely allow mixed-religion, mixed-class, mixed-race and May-December marriages, even though they might pose challenges to the children. Indeed, without asking even a single question about the possible impact on the children, we allow pimps, prostitutes, drug addicts, alcoholics, child abusers, corrupt politicians, rapists, adulterers and convicted murderers to marry.
Now, however, we are suddenly told that same-sex couples should not be allowed to marry because the absence of an opposite-sex parent might not be good for the kids. If ever there was a disingenuous, hypocritical, cynical and dishonest defense of a law, this is it. Whatever might be the real basis for objecting to same-sex marriage, this isn't it. This is nothing but a desperate after-the-fact rationalization designed to mask ignorance, prejudice and invidious discrimination. Mr. Will should know better.
March 15, 2013
Same-Sex Marriage in Illinois: Now Is the time!
The Illinois Senate has approved legislation that will legalize marriage between same-sex couples in Illinois. The Illinois House Executive Committee has recommended passage of the legislation. Governor Quinn has said that he supports that legislation and will enthusiastically sign it into law. All that remains now is for the Illinois House to approve the legislation to make Illinois the tenth state in the nation to legalize marriage between same-sex couples.
Now is the time for Illinois to take this step. It is demanded by our nation's commitment to fairness, justice and equality. Now is the time for us all to leave behind a long and sorrowful history of hateful discrimination, fear, hostility and ignorance. Now is the time for us to live up to our own highest aspirations as Americans.
There was a time, not that long ago, when gays and lesbians in our state and in our nation were ostracized, humiliated, scorned, fired, castrated, sterilized, and jailed. They were treated as morally corrupt, mentally degenerate and genetically deformed. The only way to survive in that environment was to hide one's own identity, to pretend to be what one was not, and to find shelter deep in the closet.
Inspired by the civil rights movement, some homosexuals found the courage to claim their own identities publicly and to assert their rights to dignity, respect and equality. This met with violent reprisals, unemployment, and gross discrimination. But they persevered and set an example for others. And so we came gradually to know, initially to our shock, that our friends and neighbors, our cousins and uncles, our sons and daughters -- people we'd loved and respected -- were themselves gays and lesbians. It took extraordinary courage for them to come out and to tell us the truth, because the truth was and too often still is colored by shame and dismay.
But we have changed as a society. We have come to understand that people around us -- good, kind, decent, loving people -- are themselves gays and lesbians. And with that awareness of individual gays and lesbians, the social view of homosexuals generally has gradually changed. We have come to understand that, whatever the cause of their difference, gay men and women are good, kind, decent and loving people who deserve our love and respect.
The people of Illinois have already recognized that same-sex couples deserve the right to enter into civil unions that are, in theory, equal to marriages in all respects - except in name. Except in name. And there's the rub. Imagine if African-Americans could enter into civil unions but not marriages. Imagine if Catholics could legally enter into civil unions but not marriages. Imagine if mixed-race couples could enter into civil unions but not marriages. The insult, the indignity, the discrimination would be apparent to all. The same is true for same-sex couples.
And why would one object to same-sex couples marrying? At this point in time, the objections are entirely religious. "The marriage of same-sex couples offends my religion's understanding of marriage." "It is a travesty, an abomination, a sacrilege." "It offends everything my religion holds sacred." In the words of Pope Francis, "It is a destructive pretension against the plan of God."
But in these United States such arguments are not a legitimate reason to deny other citizens their fundamental right to equal treatment under the law. In a nation committed to the separation of church and state, the government can never deny rights to some in order to appease the religious beliefs of others. During the civil rights struggle, for example, segregationists frequently invoked biblical authority for the separation of the races. The Rev. James E. Burks of Bayview Baptist Church in Norfolk, Virginia, for example, insisted that God had separated the races and that "when man sets aside the plain teachings" of the Bible and "disregards the boundary lines God Himself has drawn, man assumes a prerogative that belongs to God alone." Similarly, discrimination against women was often justified by reference to "divine ordinance." Such arguments have no place in the American constitutional system.
I understand and respect the strong and sincere feelings of those who think that the marriage of same-sex couples is incompatible with their religious beliefs. But they cannot legitimately or with a proper respect for the American system of law and justice attempt to impose those beliefs on those who disagree. They have every right not to marry a person of the same-sex and they have every right not to officiate at the marriage of a same-sex couple, but they have no right -- no right -- to attempt to prevent the government from recognizing such marriages because they offend their religious beliefs.
As the character of Abraham Lincoln said in the recent film, "Now is the time. Now!" It was time to end slavery, once and for all. I would say the same today about our continuing discrimination against gay and lesbian couples who wish nothing more than to marry. Now is the time. Now!
Now is the time for Illinois to take this step. It is demanded by our nation's commitment to fairness, justice and equality. Now is the time for us all to leave behind a long and sorrowful history of hateful discrimination, fear, hostility and ignorance. Now is the time for us to live up to our own highest aspirations as Americans.
There was a time, not that long ago, when gays and lesbians in our state and in our nation were ostracized, humiliated, scorned, fired, castrated, sterilized, and jailed. They were treated as morally corrupt, mentally degenerate and genetically deformed. The only way to survive in that environment was to hide one's own identity, to pretend to be what one was not, and to find shelter deep in the closet.
Inspired by the civil rights movement, some homosexuals found the courage to claim their own identities publicly and to assert their rights to dignity, respect and equality. This met with violent reprisals, unemployment, and gross discrimination. But they persevered and set an example for others. And so we came gradually to know, initially to our shock, that our friends and neighbors, our cousins and uncles, our sons and daughters -- people we'd loved and respected -- were themselves gays and lesbians. It took extraordinary courage for them to come out and to tell us the truth, because the truth was and too often still is colored by shame and dismay.
But we have changed as a society. We have come to understand that people around us -- good, kind, decent, loving people -- are themselves gays and lesbians. And with that awareness of individual gays and lesbians, the social view of homosexuals generally has gradually changed. We have come to understand that, whatever the cause of their difference, gay men and women are good, kind, decent and loving people who deserve our love and respect.
The people of Illinois have already recognized that same-sex couples deserve the right to enter into civil unions that are, in theory, equal to marriages in all respects - except in name. Except in name. And there's the rub. Imagine if African-Americans could enter into civil unions but not marriages. Imagine if Catholics could legally enter into civil unions but not marriages. Imagine if mixed-race couples could enter into civil unions but not marriages. The insult, the indignity, the discrimination would be apparent to all. The same is true for same-sex couples.
And why would one object to same-sex couples marrying? At this point in time, the objections are entirely religious. "The marriage of same-sex couples offends my religion's understanding of marriage." "It is a travesty, an abomination, a sacrilege." "It offends everything my religion holds sacred." In the words of Pope Francis, "It is a destructive pretension against the plan of God."
But in these United States such arguments are not a legitimate reason to deny other citizens their fundamental right to equal treatment under the law. In a nation committed to the separation of church and state, the government can never deny rights to some in order to appease the religious beliefs of others. During the civil rights struggle, for example, segregationists frequently invoked biblical authority for the separation of the races. The Rev. James E. Burks of Bayview Baptist Church in Norfolk, Virginia, for example, insisted that God had separated the races and that "when man sets aside the plain teachings" of the Bible and "disregards the boundary lines God Himself has drawn, man assumes a prerogative that belongs to God alone." Similarly, discrimination against women was often justified by reference to "divine ordinance." Such arguments have no place in the American constitutional system.
I understand and respect the strong and sincere feelings of those who think that the marriage of same-sex couples is incompatible with their religious beliefs. But they cannot legitimately or with a proper respect for the American system of law and justice attempt to impose those beliefs on those who disagree. They have every right not to marry a person of the same-sex and they have every right not to officiate at the marriage of a same-sex couple, but they have no right -- no right -- to attempt to prevent the government from recognizing such marriages because they offend their religious beliefs.
As the character of Abraham Lincoln said in the recent film, "Now is the time. Now!" It was time to end slavery, once and for all. I would say the same today about our continuing discrimination against gay and lesbian couples who wish nothing more than to marry. Now is the time. Now!
March 13, 2013
Bradley Manning and Military Overreach
Bradley Manning has offered to plead guilty to charges that he unlawfully transferred classified information to persons (in this case, WikiLeaks) unauthorized to receive it. The maximum penalty for this offense is 10 years in prison. Manning also offered to plead guilty to nine other charges. For these 10 pleas combined he could spend as long as 20 years in prison.
The military prosecutors insist that this penalty is insufficient. They also want to convict Manning under a separate statute for aiding the enemy (in this case, al Qaeda) by providing them with classified information. The penalty for this offense is life in prison.
The military's argument that Manning violated the aiding the enemy statute is clearly ill-founded. That statute is intended for situations in which the defendant intends to aid the enemy. No one argues that that was Manning's intent. By every account, his purpose was not to aid al Qaeda but to bring to light what he thought were governmental and military abuses. Even if he violated the unauthorized disclosure law when he shared this information with WikiLeaks, he was not guilty of intending to aid the enemy.
In defense of its position, the military invokes an 1863 case in which a member of the Union army, Henry Vanderwater, published the roster of Union soldiers in a local newspaper. He did so using a code so the import of the information would not be known to others. His purpose in doing this was to aid the Confederate army so they would know how many Union soldiers were available to defend the city. He was found out, court-martialed for aiding the enemy, and served several months in the brig before being dishonorably discharged.
The military prosecutors argue that Manning's case should be governed by Vanderwater's (except, of course, for the penalty). Legal reasoning often consists in choosing among competing analogies. Vanderwater's case is a terrible analogy for Manning's. This is so for at least two reasons.
First, unlike Manning, Vanderwater clearly intended to aid the enemy. That was never in doubt. It was why he intentionally masked the information in code. A better analogy to Manning's situation would be if Vanderwater had openly published the names of the Union soldiers so people in the town could be courteous to them. Even if he could be punished for this act for disclosing confidential information, he would not have been convicted of aiding the enemy. That would clearly not have been his intent. Vanderwater is thus a poor analogy for Manning.
Second, the First Amendment had virtually no meaning 150 years ago when Vanderwater's case arose. Indeed, during the Civil War the military prosecuted and convicted a former congressman, Clement Vallandigham, for giving a speech in Ohio that condemned the Lincoln administration's conduct of the war. Lincoln himself argued that this did not violate the First Amendment. It would be unthinkable today for the government to prosecute a former congressman for criticizing President Obama's handling of the war in Afghanistan. Our appreciation for the First Amendment and for the freedom of speech have changed immeasurably over the last 150 years. In invoking Vanderwater's conviction, the military prosecutors ignore that fundamental change in American law.
Manning's prosecutors argue, finally, that intent to aid the enemy is not required under the statute. But that makes no sense. What makes aiding the enemy sufficiently outrageous to justify life in prison is precisely the fact that the guilty party was intending to aid the enemy. The intent is critical to the very nature of the offense. Indeed, there is apparently no instance in American history in which an individual has been convicted of aiding the enemy without proof that that was in fact his purpose and intent. That, in itself, should be sufficient to settle the meaning of the statute.
A sentence of up to 20 years in prison for Bradley Manning is more than sufficient to serve any legitimate interest of the government. The military prosecutors should accept his offers to plead guilty, drop the wholly unfounded and unjust "aiding the enemy" charge, and move on to more important things.
The military prosecutors insist that this penalty is insufficient. They also want to convict Manning under a separate statute for aiding the enemy (in this case, al Qaeda) by providing them with classified information. The penalty for this offense is life in prison.
The military's argument that Manning violated the aiding the enemy statute is clearly ill-founded. That statute is intended for situations in which the defendant intends to aid the enemy. No one argues that that was Manning's intent. By every account, his purpose was not to aid al Qaeda but to bring to light what he thought were governmental and military abuses. Even if he violated the unauthorized disclosure law when he shared this information with WikiLeaks, he was not guilty of intending to aid the enemy.
In defense of its position, the military invokes an 1863 case in which a member of the Union army, Henry Vanderwater, published the roster of Union soldiers in a local newspaper. He did so using a code so the import of the information would not be known to others. His purpose in doing this was to aid the Confederate army so they would know how many Union soldiers were available to defend the city. He was found out, court-martialed for aiding the enemy, and served several months in the brig before being dishonorably discharged.
The military prosecutors argue that Manning's case should be governed by Vanderwater's (except, of course, for the penalty). Legal reasoning often consists in choosing among competing analogies. Vanderwater's case is a terrible analogy for Manning's. This is so for at least two reasons.
First, unlike Manning, Vanderwater clearly intended to aid the enemy. That was never in doubt. It was why he intentionally masked the information in code. A better analogy to Manning's situation would be if Vanderwater had openly published the names of the Union soldiers so people in the town could be courteous to them. Even if he could be punished for this act for disclosing confidential information, he would not have been convicted of aiding the enemy. That would clearly not have been his intent. Vanderwater is thus a poor analogy for Manning.
Second, the First Amendment had virtually no meaning 150 years ago when Vanderwater's case arose. Indeed, during the Civil War the military prosecuted and convicted a former congressman, Clement Vallandigham, for giving a speech in Ohio that condemned the Lincoln administration's conduct of the war. Lincoln himself argued that this did not violate the First Amendment. It would be unthinkable today for the government to prosecute a former congressman for criticizing President Obama's handling of the war in Afghanistan. Our appreciation for the First Amendment and for the freedom of speech have changed immeasurably over the last 150 years. In invoking Vanderwater's conviction, the military prosecutors ignore that fundamental change in American law.
Manning's prosecutors argue, finally, that intent to aid the enemy is not required under the statute. But that makes no sense. What makes aiding the enemy sufficiently outrageous to justify life in prison is precisely the fact that the guilty party was intending to aid the enemy. The intent is critical to the very nature of the offense. Indeed, there is apparently no instance in American history in which an individual has been convicted of aiding the enemy without proof that that was in fact his purpose and intent. That, in itself, should be sufficient to settle the meaning of the statute.
A sentence of up to 20 years in prison for Bradley Manning is more than sufficient to serve any legitimate interest of the government. The military prosecutors should accept his offers to plead guilty, drop the wholly unfounded and unjust "aiding the enemy" charge, and move on to more important things.
March 5, 2013
The Supreme Court and the Right of Gays and Lesbians to Marry
Later this month the Supreme Court will hear argument in two cases involving the issue of equal marriage rights for same-sex couples. A central question in these cases is whether laws denying gays and lesbians the right to marry violates the Equal Protection Clause of the Fourteenth Amendment. That clause commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws."
What does that mean? Almost all laws treat different people differently. Only doctors can practice medicine. Only veterans are eligible for veterans' benefits. Only people over a certain age receive Social Security. Rich people are taxed at a higher rate than poor people. Not everyone is admitted to the state university.
In general, the Supreme Court has interpreted the Equal Protection Clause to mean that laws that treat people differently do not deny "the equal protection of the laws" if the differential treatment is rationally related to a legitimate government interest. This is a very low standard of justification. As a result, the vast majority of laws that treat some people differently from others are presumed to be constitutional. This makes sense, because most laws of this sort do not threaten the underlying purposes and values that the Equal Protection Clause was meant to protect.
But what are those purposes and values? The central meaning of the Equal Protection Clause can be found in the context in which it was added to the Constitution -- after the Civil War in an effort to protect the newly freed slaves against prejudice and discrimination. Note, however, that the text of the Equal Protect Clause is not limited to newly freed slaves or to African-Americans. It does not say, for example, that no state "shall deny to any newly free slave [or any African-American] the equal protection of the laws." What, then, are we to make of this combination of the text and the underlying history of the clause?
Over time, the Supreme Court has held that the general presumption of constitutionality under the Equal Protection Clause does not apply when the law in question treats individuals in a manner reminiscent of racial discrimination after the Civil War. That is, the Court has held that the primary concern of the Equal Protection Clause is with laws that disadvantage individuals based on factors that "reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others." Legislation "predicated on such prejudice," the Court has explained, is "incompatible with the constitutional understanding that each person is ... entitled to equal justice under the law."
Accordingly, the Supreme Court has held that any law that classifies on the basis of such a characteristic that reflects "prejudice and antipathy" and on the view that "those in the burdened class are not as worthy or deserving as others" must be tested not by asking whether the law rationally furthers a legitimate government interest, but by "heightened judicial scrutiny." That is, laws that discriminate against individuals on the basis of "suspect" criteria are presumed to be unconstitutional unless, at the very least, they substantially further important government interests. This higher standard of justification is meant to enable the Court to ferret out the effects of prejudice and to ensure that groups that have been historically discriminated against are no longer denied the "equal protection of the laws."
In determining whether laws discriminating against any particular group are "suspect" and therefore whether "heightened scrutiny is appropriate," the Supreme Court generally considers four factors (1) whether the group being disadvantaged has experienced a history of invidious discrimination; (2) whether the discrimination is based "on stereotyped characteristics" that do not reflect the group's true abilities; (3) whether members of the group have "obvious, immutable, or distinguishing characteristics that define them as a discrete group"; and (4) whether the group lacks the capacity adequately to protect itself in the political process.
Consideration of these four factors clearly establishes that laws that discriminate against gays and lesbians must be subjected to heightened judicial scrutiny.
(1) Homosexuals in our society have historically been the target of purposeful and often grievously harmful discrimination. For centuries, the prevailing attitude toward gay persons has been condemnation, ostracism, social and legal discrimination, and at times even ferocious punishment. Gay men and lesbians have been denied employment, prevented from entering the nation, castrated and sterilized, targeted for violence, publicly humiliated, and treated as perverts, sinners and criminals.
In such circumstances, it is hardly surprising that individuals who suspected themselves of harboring homosexual tendencies were made to feel deformed, inferior and reviled. Throughout American history, almost all gay men and lesbians attempted, often desperately, to hide their secret shame from family, friends, neighbors, and associates. The fear of discovery kept the very existence of most gay men and lesbians invisible -- even to one another, thereby rendering them politically powerless. As every court to have considered this question has concluded, gay men and lesbians in the United States have endured severe, longstanding and unwarranted discrimination.
(2) The second factor in the Court's heightened scrutiny analysis is whether the group in question is distinctively different from other groups in a way that impairs their ability to function reasonably in society. It may be reasonable, for example, to treat children, the aged, and people with physical or mental disabilities differently from others, at least in some respects. But as courts, scholars, the American Psychiatric Association, and pretty much everyone with any common sense now recognizes, an individual's homosexual orientation implies no impairment in judgment, reliability, or general social or vocational capacity. Indeed, when allowed to do so, gay men and lesbians perform perfectly well as contributing members of society as lawyers, doctors, plumbers, soldiers, athletes, professors, judges, and parents.
(3) Because of past and continuing discrimination, gay men and lesbians have had only a limited ability to protect themselves in the political process. Historically, for reasons already noted, homosexuals -- as homosexuals -- had effectively no capacity to participate effectively in democratic decisionmaking. Even today, gay men and lesbians remain wildly under-represented in the nation's decisionmaking councils. Although approximately 3.8 percent of Americans are gay, lesbian or bisexual, there are only seven openly gay members of Congress, no openly gay person has ever served in the United States Cabinet, and no openly gay person has ever served on any federal court of appeals. Indeed, gay men and lesbians today have only about one-fiftieth the representation they would have in the halls of government if it were not for the past and present discrimination against them.
While gays and lesbians have had some successes in recent years in securing antidiscrimination legislation (and even marriage equality) in some parts of the nation, those patchwork results do not alter the fact that as a group gay men and lesbians lack sufficient political clout effectively to protect themselves in the rough-and-tumble of the political process. Moreover, as the Supreme Court has long recognized, a modicum of political success does not in any way establish that a historically oppressed and subordinated group can adequately protect itself in the political process.
Just as the repeal of anti-miscegenation laws in some states was insufficient to prevent the Court from invoking heightened scrutiny to invalidate laws prohibiting interracial marriage in its 1967 decision in Loving v. Virginia, and just as the existence of federal and state laws prohibiting discrimination against women was insufficient to prevent the Court from invoking heightened scrutiny to invalidate laws discriminating against women in the 1970s, so too are scattered victories in a handful of states an insufficient basis on which to reject heightened scrutiny for laws that discriminate against gay and lesbians today.
The plain and simple fact is that the barriers to achieving equal respect, equal dignity and equal rights for gays and lesbians through the political process remain daunting, and this is especially true at the state level, where a substantial majority of jurisdictions still fervently oppose equal rights for gay and lesbian Americans and where private discrimination against gays and lesbians is still widespread and fierce.
(4) Finally, in deciding whether heightened scrutiny is appropriate under the Equal Protection Clause, the Court has looked with particular suspicion upon laws that discriminate on the basis of "immutable ... or distinguishing characteristics that define [persons] as a discrete group." This consideration derives from the "basic concept of our system that legal burdens should bear some relationship to individual responsibility." Accordingly, a law is more likely to receive heightened scrutiny if it discriminates against individuals based on a characteristic that they either cannot change or should not be compelled to change because it is fundamental to their individual identity.
Sexual orientation clearly falls within this category of defining personal characteristics. As the Supreme Court has itself acknowledged, sexual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual. Even beyond that, though, there is now a broad medical and scientific consensus that sexual orientation is, for all practical purposes, an immutable characteristic. People may to some extent be able to change their behavior, but one's sexual orientation cannot be "cured." Nor should it be.
In the end, it is the responsibility of the Supreme Court to protect the fundamental rights guaranteed to all individuals by the Equal Protection Clause of the Fourteenth Amendment. It is the Court's responsibility to protect discrete and insular minorities from majoritarian prejudice, hostility and indifference. Laws that discriminate against gays and lesbians, like laws that discriminate against African-Americans, Hispanics, Asian-Americans and women, are presumptively unconstitutional and therefore must be tested by heightened judicial scrutiny. Under such a standard, laws denying gay men and women the right to marry are clearly unconstitutional. And so the Court should hold.
This post is drawn from a Friend of the Court brief I wrote with Lori Alvino McGill, a partner in the law firm of Latham & Watkins, on behalf of a group of constitutional law professors from such institutions as Harvard, Yale, Columbia, Chicago, Stanford, Cornell and NYU.
What does that mean? Almost all laws treat different people differently. Only doctors can practice medicine. Only veterans are eligible for veterans' benefits. Only people over a certain age receive Social Security. Rich people are taxed at a higher rate than poor people. Not everyone is admitted to the state university.
In general, the Supreme Court has interpreted the Equal Protection Clause to mean that laws that treat people differently do not deny "the equal protection of the laws" if the differential treatment is rationally related to a legitimate government interest. This is a very low standard of justification. As a result, the vast majority of laws that treat some people differently from others are presumed to be constitutional. This makes sense, because most laws of this sort do not threaten the underlying purposes and values that the Equal Protection Clause was meant to protect.
But what are those purposes and values? The central meaning of the Equal Protection Clause can be found in the context in which it was added to the Constitution -- after the Civil War in an effort to protect the newly freed slaves against prejudice and discrimination. Note, however, that the text of the Equal Protect Clause is not limited to newly freed slaves or to African-Americans. It does not say, for example, that no state "shall deny to any newly free slave [or any African-American] the equal protection of the laws." What, then, are we to make of this combination of the text and the underlying history of the clause?
Over time, the Supreme Court has held that the general presumption of constitutionality under the Equal Protection Clause does not apply when the law in question treats individuals in a manner reminiscent of racial discrimination after the Civil War. That is, the Court has held that the primary concern of the Equal Protection Clause is with laws that disadvantage individuals based on factors that "reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others." Legislation "predicated on such prejudice," the Court has explained, is "incompatible with the constitutional understanding that each person is ... entitled to equal justice under the law."
Accordingly, the Supreme Court has held that any law that classifies on the basis of such a characteristic that reflects "prejudice and antipathy" and on the view that "those in the burdened class are not as worthy or deserving as others" must be tested not by asking whether the law rationally furthers a legitimate government interest, but by "heightened judicial scrutiny." That is, laws that discriminate against individuals on the basis of "suspect" criteria are presumed to be unconstitutional unless, at the very least, they substantially further important government interests. This higher standard of justification is meant to enable the Court to ferret out the effects of prejudice and to ensure that groups that have been historically discriminated against are no longer denied the "equal protection of the laws."
In determining whether laws discriminating against any particular group are "suspect" and therefore whether "heightened scrutiny is appropriate," the Supreme Court generally considers four factors (1) whether the group being disadvantaged has experienced a history of invidious discrimination; (2) whether the discrimination is based "on stereotyped characteristics" that do not reflect the group's true abilities; (3) whether members of the group have "obvious, immutable, or distinguishing characteristics that define them as a discrete group"; and (4) whether the group lacks the capacity adequately to protect itself in the political process.
Consideration of these four factors clearly establishes that laws that discriminate against gays and lesbians must be subjected to heightened judicial scrutiny.
(1) Homosexuals in our society have historically been the target of purposeful and often grievously harmful discrimination. For centuries, the prevailing attitude toward gay persons has been condemnation, ostracism, social and legal discrimination, and at times even ferocious punishment. Gay men and lesbians have been denied employment, prevented from entering the nation, castrated and sterilized, targeted for violence, publicly humiliated, and treated as perverts, sinners and criminals.
In such circumstances, it is hardly surprising that individuals who suspected themselves of harboring homosexual tendencies were made to feel deformed, inferior and reviled. Throughout American history, almost all gay men and lesbians attempted, often desperately, to hide their secret shame from family, friends, neighbors, and associates. The fear of discovery kept the very existence of most gay men and lesbians invisible -- even to one another, thereby rendering them politically powerless. As every court to have considered this question has concluded, gay men and lesbians in the United States have endured severe, longstanding and unwarranted discrimination.
(2) The second factor in the Court's heightened scrutiny analysis is whether the group in question is distinctively different from other groups in a way that impairs their ability to function reasonably in society. It may be reasonable, for example, to treat children, the aged, and people with physical or mental disabilities differently from others, at least in some respects. But as courts, scholars, the American Psychiatric Association, and pretty much everyone with any common sense now recognizes, an individual's homosexual orientation implies no impairment in judgment, reliability, or general social or vocational capacity. Indeed, when allowed to do so, gay men and lesbians perform perfectly well as contributing members of society as lawyers, doctors, plumbers, soldiers, athletes, professors, judges, and parents.
(3) Because of past and continuing discrimination, gay men and lesbians have had only a limited ability to protect themselves in the political process. Historically, for reasons already noted, homosexuals -- as homosexuals -- had effectively no capacity to participate effectively in democratic decisionmaking. Even today, gay men and lesbians remain wildly under-represented in the nation's decisionmaking councils. Although approximately 3.8 percent of Americans are gay, lesbian or bisexual, there are only seven openly gay members of Congress, no openly gay person has ever served in the United States Cabinet, and no openly gay person has ever served on any federal court of appeals. Indeed, gay men and lesbians today have only about one-fiftieth the representation they would have in the halls of government if it were not for the past and present discrimination against them.
While gays and lesbians have had some successes in recent years in securing antidiscrimination legislation (and even marriage equality) in some parts of the nation, those patchwork results do not alter the fact that as a group gay men and lesbians lack sufficient political clout effectively to protect themselves in the rough-and-tumble of the political process. Moreover, as the Supreme Court has long recognized, a modicum of political success does not in any way establish that a historically oppressed and subordinated group can adequately protect itself in the political process.
Just as the repeal of anti-miscegenation laws in some states was insufficient to prevent the Court from invoking heightened scrutiny to invalidate laws prohibiting interracial marriage in its 1967 decision in Loving v. Virginia, and just as the existence of federal and state laws prohibiting discrimination against women was insufficient to prevent the Court from invoking heightened scrutiny to invalidate laws discriminating against women in the 1970s, so too are scattered victories in a handful of states an insufficient basis on which to reject heightened scrutiny for laws that discriminate against gay and lesbians today.
The plain and simple fact is that the barriers to achieving equal respect, equal dignity and equal rights for gays and lesbians through the political process remain daunting, and this is especially true at the state level, where a substantial majority of jurisdictions still fervently oppose equal rights for gay and lesbian Americans and where private discrimination against gays and lesbians is still widespread and fierce.
(4) Finally, in deciding whether heightened scrutiny is appropriate under the Equal Protection Clause, the Court has looked with particular suspicion upon laws that discriminate on the basis of "immutable ... or distinguishing characteristics that define [persons] as a discrete group." This consideration derives from the "basic concept of our system that legal burdens should bear some relationship to individual responsibility." Accordingly, a law is more likely to receive heightened scrutiny if it discriminates against individuals based on a characteristic that they either cannot change or should not be compelled to change because it is fundamental to their individual identity.
Sexual orientation clearly falls within this category of defining personal characteristics. As the Supreme Court has itself acknowledged, sexual orientation is so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual. Even beyond that, though, there is now a broad medical and scientific consensus that sexual orientation is, for all practical purposes, an immutable characteristic. People may to some extent be able to change their behavior, but one's sexual orientation cannot be "cured." Nor should it be.
In the end, it is the responsibility of the Supreme Court to protect the fundamental rights guaranteed to all individuals by the Equal Protection Clause of the Fourteenth Amendment. It is the Court's responsibility to protect discrete and insular minorities from majoritarian prejudice, hostility and indifference. Laws that discriminate against gays and lesbians, like laws that discriminate against African-Americans, Hispanics, Asian-Americans and women, are presumptively unconstitutional and therefore must be tested by heightened judicial scrutiny. Under such a standard, laws denying gay men and women the right to marry are clearly unconstitutional. And so the Court should hold.
This post is drawn from a Friend of the Court brief I wrote with Lori Alvino McGill, a partner in the law firm of Latham & Watkins, on behalf of a group of constitutional law professors from such institutions as Harvard, Yale, Columbia, Chicago, Stanford, Cornell and NYU.
January 30, 2013
The Second Amendment
The following statement, which UCLA law professor Adam Winkler and I crafted, was signed by more than fifty of the nation's most distinguished constitutional law professors. The statement refutes unfounded claims that the Second Amendment precludes Congress from enacting legislation to reduce gun violence in the United States. Although these scholars hold widely divergent views on constitutional interpretation, and often fiercely disagree on a broad range of constitutional issues, they all agree on this question. The statement was submitted today to Congress in anticipation of the beginning of hearings on the proposed legislation.
Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation
Several proposed reforms to the nation's gun laws, including universal background checks and restrictions on high-capacity ammunition magazines and assault weapons, are now pending before Congress. Concerns have been raised that these measures might violate the Second Amendment. We, the undersigned professors with expertise in constitutional law, write to address those concerns.
In 2008, the U.S. Supreme Court held that the Second Amendment, which provides, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," guarantees an individual's right to have a functional firearm in the home for self-defense. The Court's decision in that case, District of Columbia v. Heller, struck down a D.C. law that effectively barred the use of any firearm for self-defense. The law is now clear that the government may not completely disarm law-abiding, responsible citizens. The Court also made clear, however, that many gun regulations remain constitutionally permissible. "Like most rights," the Court explained, "the right secured by the Second Amendment is not unlimited." Writing for the Court, Justice Antonin Scalia explained that restrictions on "dangerous and unusual" weapons are constitutional and that "nothing in our opinion should be taken to cast doubt" on laws that prohibit "the possession of firearms by felons or the mentally ill" or laws that impose "conditions and qualifications on the commercial sale of arms."
In this sense, Justice Scalia recognized in Heller that, like other constitutional rights, the Second Amendment is not an absolute. The First Amendment, for example, provides that "Congress shall make no law... abridging the freedom of speech," but the Supreme Court has long and consistently held that some types of speech -- for example, defamation, obscenity and threats -- can be regulated; that some people -- for example, public employees, members of the military, students and prisoners -- are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.
In acknowledging the presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms they may have, Heller is consistent with the history of the right to keep and bear arms. The founding fathers who wrote and ratified the Second Amendment also had laws to keep guns out of the hands of people thought to be untrustworthy. Such laws were necessary to ensure that the citizen militia referenced in the Second Amendment was "well regulated." In the 1800s, many states restricted the sale or public possession of concealable firearms. In the early twentieth century, the federal government restricted access to unusually dangerous weapons, such as machine guns, and states barred people convicted of certain felonies from possessing firearms. Laws such as these were routinely upheld by the courts, which recognized the legitimacy of legislative efforts to keep the most dangerous weapons out of the hands of the most dangerous people.
While the permissibility of any particular reform depends on its details, the reforms currently being considered by Congress are clearly consistent with the Second Amendment. We express no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes the core right identified by the Court in Heller.
Universal background checks, especially those conducted instantaneously through the National Instant Background Check System, do not impose a significant burden on law-abiding citizens. Yet background checks may provide an important safeguard against easy access to guns by members of criminal street gangs, other felons and the mentally ill. As with other rights that have eligibility criteria, such as the right to vote, the right to keep and bear arms is not offended by neutral measures designed to ensure that only eligible, law-abiding citizens exercise the right. Moreover, background checks imposed at the point of sale are typical of the "conditions and qualifications on the commercial sale of arms" recognized by the Supreme Court in Heller.
Restrictions on the manufacture and sale of high-capacity ammunition magazines and assault weapons are also consistent with the Second Amendment. In a recent opinion authored by Judge Douglas Ginsburg and joined by Judge Karen Henderson, the U.S. Court of Appeals for the District of Columbia Circuit held that such regulations are consistent with the Second Amendment and with the Supreme Court's decision in Heller. The court of appeals recognized such weapons and magazines are not necessary for individual self-defense -- what Heller called the "core lawful purpose" of the Second Amendment. Restrictions on high-capacity magazines and assault weapons, the court of appeals held, do "not effectively disarm individuals or substantially affect their ability to defend themselves." The Second Amendment, like the First Amendment, does not prevent lawmakers from enacting reasonable regulations that do not seriously interfere with the core right guaranteed by the Constitution.
The Supreme Court has clearly held that the Second Amendment preserves the right of law-abiding citizens to have a firearm in the home for self-defense. As both the historical tradition of the right to bear arms and the Court's decision suggest, reasonable and limited measures to enhance public safety that do not unduly burden that right are consistent with the Second Amendment.
Signed,
Bruce Ackerman
Sterling Professor of Law and Political Science, Yale Law School
Albert W. Alschuler
Julius Kreeger Professor Emeritus, The University of Chicago Law School
Mitchell N. Berman
Richard Dale Endowed Chair in Law, The University of Texas School of Law
Ashutosh Bhagwat, Professor of Law
UC Davis School of Law
Joseph Blocher
Associate Professor of Law, Duke Law School
Lee C. Bollinger
President, Columbia University
Rebecca L. Brown
Newton Professor of Constitutional Law, USC Gould School of Law
Alan Brownstein
Professor of Law, Boochever and Bird Chair, UC Davis School of Law
Erwin Chemerinsky
Dean and Distinguished Professor of Law, UC Irvine School of Law
Dan T. Coenen
University Professor and Harmon W. Caldwell Chair, University of Georgia Law
Walter E. Dellinger III
Douglas B. Maggs Emeritus Professor of Law, Duke Law School
Michael C. Dorf
Robert S. Stevens Professor of Law, Cornell University Law School
Lee Epstein
Provost Professor and Rader Family Trustee Chair in Law, USC Gould School of Law
Richard A. Epstein
Laurence A. Tisch Professor of Law, New York University School of Law
Daniel A. Farber
Sho Sato Professor of Law, UC Berkeley School of Law
Owen M. Fiss
Sterling Professor Emeritus of Law and Professorial Lecturer in Law, Yale Law School
Charles Fried
Beneficial Professor of Law, Harvard Law School
Barry Friedman
Jacob D. Fuchsberg Professor of Law, New York University School of Law
Risa Goluboff
Justice Thurgood Marshall Professor of Law, The University of Virginia School of Law
Jamal Greene
Professor of Law, Columbia Law School
H. Kent Greenfield
Professor of Law and Law Fund Research Scholar, Boston College Law School
Ariela Gross
John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law
Roderick M. Hills, Jr.,
William T. Comfort, III Professor of Law, New York University School of Law
Samuel Issacharoff
Bonnie and Richard Reiss Professor, New York University School of Law
John C. Jeffries, Jr.
David and Mary Harrison Distinguished Professor and former Dean, University of Virginia
Dawn Johnsen
Walter W. Foskett Professor of Law, Indiana University Maurer School of Law
Mark R. Killenbeck
Wylie H. Davis Distinguished Professor of Law, University of Arkansas School of Law
Ronald J. Krotoszynski, Jr.
John S. Stone Chair, Professor of Law, University of Alabama
Carlton F.W. Larson
Professor of Law, UC Davis School of Law
Lawrence Lessig
Roy L. Furman Professor of Law, Harvard Law School
Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr., Centennial Chair, University of Texas
William P. Marshall
William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina
Frank I. Michelman
Robert Walmsley University Professor, Emeritus, Harvard Law School
Darrell Miller
Professor of Law, University of Cincinnati College of Law
Alan B. Morrison
Lerner Family Associate Dean, The George Washington University Law School
Gene R. Nichol
Boyd Tinsley Distinguished Professor of Law, UNC School of Law
Spencer A. Overton
Professor of Law, The George Washington University Law School
Eric Posner
Kirkland & Ellis Distinguished Service Professor, The University of Chicago Law School
Lawrence Rosenthal
Professor of Law, Chapman University School of Law
Theodore Ruger
Professor of Law, University of Pennsylvania Law School
Jane S. Schacter
William Nelson Cromwell Professor of Law, Stanford Law School
Stephen J. Schulhofer
Robert B. McKay Professor of Law, New York University School of Law
Neil S. Siegel
Professor of Law and Political Science, Duke Law School
Reva Siegel
Nicholas deB. Katzenbach Professor of Law, Yale Law School
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor and former Dean, The University of Chicago
David A. Strauss
Gerald Ratner Distinguished Service Professor of Law, The University of Chicago
Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School
Mark Tushnet
William Nelson Cromwell Professor of Law, Harvard Law School
Jonathan D. Varat
Professor of Law and former Dean, UCLA School of Law
Keith Wehran
Ashton Phelps Chair of Constitutional Law, Tulane University School of Law
Adam Winkler
Professor of Law, UCLA School of Law
University affiliation provided for identification purposes only.
Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation
Several proposed reforms to the nation's gun laws, including universal background checks and restrictions on high-capacity ammunition magazines and assault weapons, are now pending before Congress. Concerns have been raised that these measures might violate the Second Amendment. We, the undersigned professors with expertise in constitutional law, write to address those concerns.
In 2008, the U.S. Supreme Court held that the Second Amendment, which provides, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," guarantees an individual's right to have a functional firearm in the home for self-defense. The Court's decision in that case, District of Columbia v. Heller, struck down a D.C. law that effectively barred the use of any firearm for self-defense. The law is now clear that the government may not completely disarm law-abiding, responsible citizens. The Court also made clear, however, that many gun regulations remain constitutionally permissible. "Like most rights," the Court explained, "the right secured by the Second Amendment is not unlimited." Writing for the Court, Justice Antonin Scalia explained that restrictions on "dangerous and unusual" weapons are constitutional and that "nothing in our opinion should be taken to cast doubt" on laws that prohibit "the possession of firearms by felons or the mentally ill" or laws that impose "conditions and qualifications on the commercial sale of arms."
In this sense, Justice Scalia recognized in Heller that, like other constitutional rights, the Second Amendment is not an absolute. The First Amendment, for example, provides that "Congress shall make no law... abridging the freedom of speech," but the Supreme Court has long and consistently held that some types of speech -- for example, defamation, obscenity and threats -- can be regulated; that some people -- for example, public employees, members of the military, students and prisoners -- are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.
In acknowledging the presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms they may have, Heller is consistent with the history of the right to keep and bear arms. The founding fathers who wrote and ratified the Second Amendment also had laws to keep guns out of the hands of people thought to be untrustworthy. Such laws were necessary to ensure that the citizen militia referenced in the Second Amendment was "well regulated." In the 1800s, many states restricted the sale or public possession of concealable firearms. In the early twentieth century, the federal government restricted access to unusually dangerous weapons, such as machine guns, and states barred people convicted of certain felonies from possessing firearms. Laws such as these were routinely upheld by the courts, which recognized the legitimacy of legislative efforts to keep the most dangerous weapons out of the hands of the most dangerous people.
While the permissibility of any particular reform depends on its details, the reforms currently being considered by Congress are clearly consistent with the Second Amendment. We express no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes the core right identified by the Court in Heller.
Universal background checks, especially those conducted instantaneously through the National Instant Background Check System, do not impose a significant burden on law-abiding citizens. Yet background checks may provide an important safeguard against easy access to guns by members of criminal street gangs, other felons and the mentally ill. As with other rights that have eligibility criteria, such as the right to vote, the right to keep and bear arms is not offended by neutral measures designed to ensure that only eligible, law-abiding citizens exercise the right. Moreover, background checks imposed at the point of sale are typical of the "conditions and qualifications on the commercial sale of arms" recognized by the Supreme Court in Heller.
Restrictions on the manufacture and sale of high-capacity ammunition magazines and assault weapons are also consistent with the Second Amendment. In a recent opinion authored by Judge Douglas Ginsburg and joined by Judge Karen Henderson, the U.S. Court of Appeals for the District of Columbia Circuit held that such regulations are consistent with the Second Amendment and with the Supreme Court's decision in Heller. The court of appeals recognized such weapons and magazines are not necessary for individual self-defense -- what Heller called the "core lawful purpose" of the Second Amendment. Restrictions on high-capacity magazines and assault weapons, the court of appeals held, do "not effectively disarm individuals or substantially affect their ability to defend themselves." The Second Amendment, like the First Amendment, does not prevent lawmakers from enacting reasonable regulations that do not seriously interfere with the core right guaranteed by the Constitution.
The Supreme Court has clearly held that the Second Amendment preserves the right of law-abiding citizens to have a firearm in the home for self-defense. As both the historical tradition of the right to bear arms and the Court's decision suggest, reasonable and limited measures to enhance public safety that do not unduly burden that right are consistent with the Second Amendment.
Signed,
Bruce Ackerman
Sterling Professor of Law and Political Science, Yale Law School
Albert W. Alschuler
Julius Kreeger Professor Emeritus, The University of Chicago Law School
Mitchell N. Berman
Richard Dale Endowed Chair in Law, The University of Texas School of Law
Ashutosh Bhagwat, Professor of Law
UC Davis School of Law
Joseph Blocher
Associate Professor of Law, Duke Law School
Lee C. Bollinger
President, Columbia University
Rebecca L. Brown
Newton Professor of Constitutional Law, USC Gould School of Law
Alan Brownstein
Professor of Law, Boochever and Bird Chair, UC Davis School of Law
Erwin Chemerinsky
Dean and Distinguished Professor of Law, UC Irvine School of Law
Dan T. Coenen
University Professor and Harmon W. Caldwell Chair, University of Georgia Law
Walter E. Dellinger III
Douglas B. Maggs Emeritus Professor of Law, Duke Law School
Michael C. Dorf
Robert S. Stevens Professor of Law, Cornell University Law School
Lee Epstein
Provost Professor and Rader Family Trustee Chair in Law, USC Gould School of Law
Richard A. Epstein
Laurence A. Tisch Professor of Law, New York University School of Law
Daniel A. Farber
Sho Sato Professor of Law, UC Berkeley School of Law
Owen M. Fiss
Sterling Professor Emeritus of Law and Professorial Lecturer in Law, Yale Law School
Charles Fried
Beneficial Professor of Law, Harvard Law School
Barry Friedman
Jacob D. Fuchsberg Professor of Law, New York University School of Law
Risa Goluboff
Justice Thurgood Marshall Professor of Law, The University of Virginia School of Law
Jamal Greene
Professor of Law, Columbia Law School
H. Kent Greenfield
Professor of Law and Law Fund Research Scholar, Boston College Law School
Ariela Gross
John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law
Roderick M. Hills, Jr.,
William T. Comfort, III Professor of Law, New York University School of Law
Samuel Issacharoff
Bonnie and Richard Reiss Professor, New York University School of Law
John C. Jeffries, Jr.
David and Mary Harrison Distinguished Professor and former Dean, University of Virginia
Dawn Johnsen
Walter W. Foskett Professor of Law, Indiana University Maurer School of Law
Mark R. Killenbeck
Wylie H. Davis Distinguished Professor of Law, University of Arkansas School of Law
Ronald J. Krotoszynski, Jr.
John S. Stone Chair, Professor of Law, University of Alabama
Carlton F.W. Larson
Professor of Law, UC Davis School of Law
Lawrence Lessig
Roy L. Furman Professor of Law, Harvard Law School
Sanford V. Levinson
W. St. John Garwood and W. St. John Garwood, Jr., Centennial Chair, University of Texas
William P. Marshall
William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina
Frank I. Michelman
Robert Walmsley University Professor, Emeritus, Harvard Law School
Darrell Miller
Professor of Law, University of Cincinnati College of Law
Alan B. Morrison
Lerner Family Associate Dean, The George Washington University Law School
Gene R. Nichol
Boyd Tinsley Distinguished Professor of Law, UNC School of Law
Spencer A. Overton
Professor of Law, The George Washington University Law School
Eric Posner
Kirkland & Ellis Distinguished Service Professor, The University of Chicago Law School
Lawrence Rosenthal
Professor of Law, Chapman University School of Law
Theodore Ruger
Professor of Law, University of Pennsylvania Law School
Jane S. Schacter
William Nelson Cromwell Professor of Law, Stanford Law School
Stephen J. Schulhofer
Robert B. McKay Professor of Law, New York University School of Law
Neil S. Siegel
Professor of Law and Political Science, Duke Law School
Reva Siegel
Nicholas deB. Katzenbach Professor of Law, Yale Law School
Geoffrey R. Stone
Edward H. Levi Distinguished Service Professor and former Dean, The University of Chicago
David A. Strauss
Gerald Ratner Distinguished Service Professor of Law, The University of Chicago
Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School
Mark Tushnet
William Nelson Cromwell Professor of Law, Harvard Law School
Jonathan D. Varat
Professor of Law and former Dean, UCLA School of Law
Keith Wehran
Ashton Phelps Chair of Constitutional Law, Tulane University School of Law
Adam Winkler
Professor of Law, UCLA School of Law
University affiliation provided for identification purposes only.
January 24, 2013
What Is a Liberal?
For most of the past four decades, "liberals" have been in retreat. In many quarters, the word "liberal" has become a pejorative. Part of the problem is that liberals have failed to define themselves and to state clearly what they believe.
As a liberal, I find that appalling. In that light, and in light of President Obama's inaugural address, which many have seen as a call to the nation to return to liberal values, I am re-posting a statement I originally posted in 2006 in an effort to articulate ten propositions that seemed to me to define a "liberal" is or does or believes.
Undoubtedly, not all liberals embrace all of these propositions, and many conservatives embrace at least some of them. Moreover, because ten is a small number, the list is not exhaustive. And because these propositions will in some instances conflict, the "liberal" position on a specific issue may not always be predictable. My goal, however, is not to end discussion, but to invite debate.
1. Liberals believe individuals should doubt their own truths and consider fairly and open-mindedly the truths of others. This is at the very heart of liberalism. Liberals understand, as Justice Oliver Wendell Holmes once observed, that "time has upset many fighting faiths." Liberals are skeptical of censorship and celebrate free and open debate.
2. Liberals believe individuals should be tolerant and respectful of difference. It is liberals who have supported and continue to support the civil rights movement, affirmative action, the Equal Rights Amendment and the rights of gay and lesbian people. (Note than a conflict between propositions 1 and 2 leads to divisions among liberals on issues like pornography and hate speech.)
3. Liberals believe individuals have both a right and a responsibility to participate in public debate. It is liberals who have championed and continue to champion expansion of the franchise, the elimination of obstacles to voting, "one person, one vote," limits on partisan gerrymandering, campaign finance reform, and a more vibrant freedom of speech. They believe, with Justice Louis Brandeis, that "the greatest menace to freedom is an inert people."
4. Liberals believe "we the people" are the governors and not the subjects of government, and that government must treat each person with that in mind. It is liberals who have defended and continue to defend the freedom of the press to investigate and challenge the government, the protection of individual privacy from overbearing government monitoring, and the right of individuals to reproductive freedom. (Note that libertarians, often thought of as "conservatives," share this value with liberals.)
5. Liberals believe government must respect and affirmatively safeguard the liberty, equality and dignity of each individual. It is liberals who have championed and continue to champion the rights of racial, religious, and ethnic minorities, political dissidents, persons accused of crime and the outcasts of society. It is liberals who have insisted on the right to counsel, a broad application of the right to due process of law, and the principle of equal protection for all people.
6. Liberals believe government has a fundamental responsibility to help those who are less fortunate. It is liberals who have supported and continue to support robust government programs to improve health care, education, social security, job training and welfare for the neediest members of society. It is liberals who maintain that a national community is like a family and that government exists in part to "promote the general Welfare."
7. Liberals believe government should never act on the basis of sectarian faith. It is liberals who have opposed and continue to oppose school prayer and the teaching of creationism in public schools and who support government funding for stem cell research, the rights of gay and lesbian people, and the freedom of choice for women.
8. Liberals believe courts have a special responsibility to protect individual liberties. It is principally liberal judges and justices who have preserved and continue to preserve freedom of expression, individual privacy, freedom of religion and due process of law. (Conservative judges and justices more often wield judicial authority to protect property rights and the interests of corporations, commercial advertisers and the wealthy.)
9. Liberals believe government must protect the safety and security of the people, for without such protection liberalism is impossible. This, of course, is less a tenet of liberalism than a reply to those who attack liberalism. The accusation that liberals are unwilling to protect the nation from internal and external dangers is false. Because liberals respect competing values, such as procedural fairness and individual dignity, they weigh more carefully particular exercises of government power (such as the use of secret evidence, hearsay and torture), but they are no less willing to use government authority in other forms (such as expanded police forces and international diplomacy) to protect the nation and its citizens.
10. Liberals believe government must protect the safety and security of the people, without unnecessarily sacrificing constitutional values. It is liberals who have demanded and continue to demand legal protections to avoid the conviction of innocent persons in the criminal justice system, reasonable restraints on government surveillance of American citizens, and fair procedures to ensure that alleged enemy combatants are in fact enemy combatants. Liberals adhere to the view expressed by Justice Louis Brandeis some eighty years ago, "Those who won our independence... did not exalt order at the cost of liberty."
Consider this an invitation. Are these propositions meaningful? Are they helpful? Are they simply wrong? As a liberal, how would you change them or modify the list? As a conservative, how would you draft a similar list for conservatives?
As a liberal, I find that appalling. In that light, and in light of President Obama's inaugural address, which many have seen as a call to the nation to return to liberal values, I am re-posting a statement I originally posted in 2006 in an effort to articulate ten propositions that seemed to me to define a "liberal" is or does or believes.
Undoubtedly, not all liberals embrace all of these propositions, and many conservatives embrace at least some of them. Moreover, because ten is a small number, the list is not exhaustive. And because these propositions will in some instances conflict, the "liberal" position on a specific issue may not always be predictable. My goal, however, is not to end discussion, but to invite debate.
1. Liberals believe individuals should doubt their own truths and consider fairly and open-mindedly the truths of others. This is at the very heart of liberalism. Liberals understand, as Justice Oliver Wendell Holmes once observed, that "time has upset many fighting faiths." Liberals are skeptical of censorship and celebrate free and open debate.
2. Liberals believe individuals should be tolerant and respectful of difference. It is liberals who have supported and continue to support the civil rights movement, affirmative action, the Equal Rights Amendment and the rights of gay and lesbian people. (Note than a conflict between propositions 1 and 2 leads to divisions among liberals on issues like pornography and hate speech.)
3. Liberals believe individuals have both a right and a responsibility to participate in public debate. It is liberals who have championed and continue to champion expansion of the franchise, the elimination of obstacles to voting, "one person, one vote," limits on partisan gerrymandering, campaign finance reform, and a more vibrant freedom of speech. They believe, with Justice Louis Brandeis, that "the greatest menace to freedom is an inert people."
4. Liberals believe "we the people" are the governors and not the subjects of government, and that government must treat each person with that in mind. It is liberals who have defended and continue to defend the freedom of the press to investigate and challenge the government, the protection of individual privacy from overbearing government monitoring, and the right of individuals to reproductive freedom. (Note that libertarians, often thought of as "conservatives," share this value with liberals.)
5. Liberals believe government must respect and affirmatively safeguard the liberty, equality and dignity of each individual. It is liberals who have championed and continue to champion the rights of racial, religious, and ethnic minorities, political dissidents, persons accused of crime and the outcasts of society. It is liberals who have insisted on the right to counsel, a broad application of the right to due process of law, and the principle of equal protection for all people.
6. Liberals believe government has a fundamental responsibility to help those who are less fortunate. It is liberals who have supported and continue to support robust government programs to improve health care, education, social security, job training and welfare for the neediest members of society. It is liberals who maintain that a national community is like a family and that government exists in part to "promote the general Welfare."
7. Liberals believe government should never act on the basis of sectarian faith. It is liberals who have opposed and continue to oppose school prayer and the teaching of creationism in public schools and who support government funding for stem cell research, the rights of gay and lesbian people, and the freedom of choice for women.
8. Liberals believe courts have a special responsibility to protect individual liberties. It is principally liberal judges and justices who have preserved and continue to preserve freedom of expression, individual privacy, freedom of religion and due process of law. (Conservative judges and justices more often wield judicial authority to protect property rights and the interests of corporations, commercial advertisers and the wealthy.)
9. Liberals believe government must protect the safety and security of the people, for without such protection liberalism is impossible. This, of course, is less a tenet of liberalism than a reply to those who attack liberalism. The accusation that liberals are unwilling to protect the nation from internal and external dangers is false. Because liberals respect competing values, such as procedural fairness and individual dignity, they weigh more carefully particular exercises of government power (such as the use of secret evidence, hearsay and torture), but they are no less willing to use government authority in other forms (such as expanded police forces and international diplomacy) to protect the nation and its citizens.
10. Liberals believe government must protect the safety and security of the people, without unnecessarily sacrificing constitutional values. It is liberals who have demanded and continue to demand legal protections to avoid the conviction of innocent persons in the criminal justice system, reasonable restraints on government surveillance of American citizens, and fair procedures to ensure that alleged enemy combatants are in fact enemy combatants. Liberals adhere to the view expressed by Justice Louis Brandeis some eighty years ago, "Those who won our independence... did not exalt order at the cost of liberty."
Consider this an invitation. Are these propositions meaningful? Are they helpful? Are they simply wrong? As a liberal, how would you change them or modify the list? As a conservative, how would you draft a similar list for conservatives?
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