Surprise!
Supreme Court Upholds Rule of Law


Lawrence v. Texas 1
Stogner  v. California 2
United States et al. v. American Library Association, Inc., et al 3
The Kansas "Romeo and Juliet" Case 4
Schools are Not Very Gay Places 5

In its final week of the recent session, the US Supreme Court handed down two decisions of extreme importance. In Stogner  v. California (01-1757) the court ruled that the government can’t retroactively void statutes of limitations in criminal cases.  In Lawrence v. Texas (02-102) it ruled that it is no longer a crime to be gay.

Technically the Lawrence decision held that the Texas statute which had made it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause of the 14th Amendment.

In a decision filled with unusually strong and unequivocal phrases Justice Anthony Kennedy wrote: “The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” The drafters of the Constitution, he said, “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

This decision was joined by Justices Stevens, Souter, Ginsburg, and Breyer. Justice O’Connor concurred in overturning the Texas law, but did so under the narrower position taken in Romer v. Evans (which held that the state has no compelling interest in singling out gays for discrimination.) This was not surprising, as she had voted with the majority in the Bowers v. Hardwick case in 1986.
 Speaking of  that earlier case, Justice Kennedy wrote: “Bowers was not correct when it was decided and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be, and is now, overruled.”

Because of the grounds upon which the majority decided it, because of the size of the majority and because of the strength of arguments given (even Justice Thomas, in his dissent from the majority opinion called this law “uncommonly silly”!) This is going to create hugely favorable shifts in the legal landscape for gays & lesbians and, eventually, for everyone.

Consider the “Don’t Ask, Don’t Tell” policy banning gays in the military if they do not keep their sexual orientation a secret even from their family. The military’s prohibition of homosexual conduct is rooted in the federal sodomy statute codified as Article 125 of the Uniform Code of Military Justice (UCMJ). That statute applies to both heterosexual and homosexual sodomy. Had the majority agreed with Justice O’Connor that this was an equal protection issue, the statute would remain in force. As it has now been effectively overturned, the military policy must be seriously called into question.

Consider adoptions by gays and lesbians. In states with anti-sodomy laws such adoptions were often impossible because the courts assumed gay people engaged in sexual activity the state declared to be criminal. The courts can no longer do this.

Consider how difficult it has been to get sexual orientation to be covered under hate crimes legislation. The thinking seemed to be that if homosexuals were illegal, they didn’t deserve to be protected.
 

The Kansas "Romeo and Juliet"Case

Consider the case of  Matthew Limon, whose 17 year sentence (for having, at age 18, consentual sex with a 14 year old boy) was vacated and returned to the Kansas courts “for further consideration in light of  Lawrence v. Texas.” Such wording is effectively an instruction to set aside the prison term imposed on Mr. Limon, and perhaps to take a close look at what has been called the state’s “Romeo and Juliet Law.” (The statute gained that moniker because it regards oral sex differently when it involves heterosexual teenage couples, as opposed to homosexual ones. When one member of the couple is aged 14 to 16 and the other is older, the act is statutory rape under the Kansas law and the most common penalty is probation if the two are heterosexual. But probation was not available to same-sex teenage couples.

Matthew Limon was one week past his 18th birthday in early 2000 when he performed oral sex on a 14-year-old boy at the center for developmentally disabled young people where they both lived. No violence or coercion was involved.

Had Mr. Limon performed oral sex on a 14-year-old girl, he could have received a prison sentence of about 15 months, and possibly just probation. Instead, he is now about three years into a 17-year sentence in the Ellsworth Correctional Facility. Under his sentence, he was also ordered to register as a sex offender upon his release.

The ACLU took up Mr. Limon’s case. It did not challenge the state’s right to punish older teenagers for having sex with younger ones, but argued, rather, that the rules should not be different for same-sex couples and heterosexual couples.  Lawrence v. Texas makes that argument compelling.)

Two great quotes from the various news articles on the Lawrence decision: “It wasn’t a gay sex ruling it was an anal sex ruling. Gay people are not the only people that have anal sex.”  “If morality is the issue, where are the laws against adultery?”

In Stogner  v. California the court held that “a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution.” In this case the vote was 5-4, with Justice Breyer writing for the majority joined by Justices Stevens, O’Connor, Souter & Ginsburg and Justice Kennedy writing a dissent joined by Justices Rehnquist, Scalia & Thomas.

Although not nearly as sweeping a decision as Lawrence v. Texas, this was important because it drew a metaphoric line in the sand saying that the court was unwilling to deprive accused persons of an important (and long-standing) legal protection simply because of what they were accused of. We hope it will also give legislators a chance to see that the recovered memory ‘science’ underpinning such laws have been seriously discredited.

To hear the right-wing whingers piss and moan about this decision, you’d think the Supreme Court had given every “child molestor” in prison a Get Out Of Jail Free card. Stuff & nonsense. Understand that the court did not say that there had to be a statute of limitations on sex crimes nor what the length of time such a statute could allow. It simply said that if a state had set a specific time limit it could not go back and change the rules afterwards:
 

California’s law extends the time in which prosecution is allowed, authorizes prosecutions that the passage of time has previously barred, and was enacted after prior limitations periods for Stogner’s alleged offenses had expired. Such features produce the kind of retroactivity that the Constitution forbids. First, the law threatens the kinds of harm that the Clause seeks to avoid, for the Clause protects liberty by preventing governments from enacting statutes with “manifestly unjust and oppressive” retroactive effects. Calder v. Bull, 3 Dall. 386, 391.
Second, the law falls literally within the categorical descriptions of ex post facto laws that Justice Chase set forth more than 200 years ago in Calder v. Bull, which this Court has recognized as an authoritative account of the Clause’s scope, Collins v. Youngblood, 497 U. S. 37, 46. It falls within the second category, which Justice Chase understood to include a new law that inflicts punishments where the party was not, by law, liable to any punishment.
Third, numerous legislators, courts, and commentators have long believed it well settled that the Clause forbids resurrection of a time-barred prosecution. The Reconstruction Congress of 1867 rejected a bill that would have revived time-barred treason prosecutions against Jefferson Davis and others, passing instead a law extending unexpired limitations periods. Roughly contemporaneous State Supreme Courts echoed the view that laws reviving time-barred prosecutions are ex post facto. Even courts that have upheld extensions of unexpired statutes of limitations have consistently distinguished situations where the periods have expired, often using language that suggests a presumption that reviving time-barred criminal cases is not allowed. This Court has not previously spoken decisively on this matter. Neither its recognition that the Fifth Amendment’s privilege against self-incrimination does not apply after the relevant limitations period has expired, Brown v. Walker, 161 U. S. 591, 597-98, nor its holding that a Civil War statute retroactively tolling limitations periods during the war was valid as an exercise of Congress’ war powers, Stewart v. Kahn, 11 Wall. 493, 503-04, dictates the outcome here. Instead, that outcome is determined by the nature of the harms that the law creates, the fact that the law falls within Justice Chase’s second category, and a long line of authority.
Because of all the hype about sex scandals involving Catholic priests, clergy abuse investigations under this law have been among the most widely publicized as people came forward to report sometimes decades-old molestations. But the high court’s decision affects other cases as well, and state authorities said about 800 cases not involving priests will have to be reviewed.

The Bush administration had argued that a ruling  against California would threaten the Patriot Act, which retroactively withdrew statutes of limitation in terrorism cases involving hijackings, kidnappings, bombings and biological weapons.

The not so wonderful decision came in the case of United States et al. v. American Library Association, Inc., et al (02-361) This was an appeal by the government of a decision by a Federal District Court declaring a section of the Children’s Internet Protection Act (CIPA) unconstitutional. The contested section forbade public libraries from receiving federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them.  The court affirmed (6-3 Rehnquist joined by O’Connor, Scalia and Thomas with Kennedy and Breyer concurring and Stevens, Souter and Ginsburg dissenting) the ancient legal maxim “them what pays the piper calls the tunes.” — saying that since libraries were not required to accept federal funds and since patrons could ask that the filters be disabled, the law did not violate the 1st Amendment.

Since many libraries have chosen to forego the federal funds this ruling will probably not have the impact envisioned by either its proponents or opponents. Also, given that this was Congress’ third (and weakest by far) attempt to regulate porn on the net and it showed no inclination to let the issue go, this is probably the least odious legal outcome we could reasonably expect.

Before we sing hosannas in praise of the court’s rulings this term, let us not forget Smith v. Row (01-729) which held that because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application did not violate the Ex Post Facto Clause, or Connecticut Dept. of Public Safety v. Doe (01-1231) upheld Connecticut’s implementation of Megan’s Law (saying “mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest”) or Ewing v. California (01-6978) and Lockyer v. Andrade (01-1127) which together upheld California’s particularly vicious 3-strikes law. Still, for all they got wrong, they got two big ones right.
 

Schools Are Not Very Gay Places

One area where the Romer and Lawrence decisions can have an enormous impact is the intersection of gays and schools. Far too many school admistrators & teachers feel it is acceptable to elevate their personal prejudice to school policy, official or not.

There is a case in Arkansas where administrators have gone to extraordinary lengths to punish a student, Thomas McLaughlin,  for being gay, including outing him to his parents, forcing him to read passages of the Bible, calling him “abnormal” and “unnatural,” and disciplining him for mentioning between classes to a female friend that he thought another boy was cute.

“My school forced me out of the closet when I should have been allowed to come out to my family on my own terms and when I thought it was the right time. And now the school has been trying to shove me back into it ever since,” McLaughlin said. “I’m through with being silenced, and I don’t want this happening to other gay kids at my school.”

Now that McLaughlin has become more open about his sexual orientation, the school has made numerous attempts to punish and silence him for being out at school:

 •  One teacher called a conference with McLaughlin’s parents and the principal because she objected to his being open about being gay. During the meeting, the principal concurred that she was opposed to McLaughlin talking at school about being gay.

 •  A different teacher ordered McLaughlin not to discuss his sexual orientation, saying that she found it “sickening,” and later called his mother to complain about his homosexuality.

 •  School officials preached their religious views on homosexuality and forced him to read aloud from the Bible in clear violation of the establishment clause of the First Amendment. This was done as punishment after McLaughlin, who is himself a Christian, disagreed with a teacher for calling him “abnormal” and “unnatural.”

 •  In violation of McLaughlin’s free speech rights, the school suspended him for two days for telling other students about being made to read the Bible in school. The principal and assistant principal also told McLaughlin that if he told any of his friends why he was suspended, they would recommend that he be expelled.

 •  McLaughlin is not even allowed to participate in typical teenage conversations about crushes. In January he was disciplined for talking between classes with a female friend about a boy they both considered “cute.”  He was disciplined; his friend was not.


“Thomas McLaughlin’s school has completely overstepped the boundaries of the law in the way it has treated him,” said Rita Sklar, Executive Director of the ACLU of Arkansas. “School officials have no place trying to convert a student’s religious beliefs to their own, and they certainly have no place using religion as a way to punish students.”

The case is being handled by the ACLU’s Lesbian and Gay Rights Project and attorney Kathy Hall of Little Rock.

Two teens attending Tawas Michigan Area Schools- Krista Starr, a 14-year-old junior high school student, and Robert Wells, a 17-year-old senior - have found themselves under vicious homophobic attacks from fellow students: graffiti; bodily assaults that left them bloodied; death threats. School administrations responded by suspending and punishing the lgbt victims.

The school administration has done everything but forbid Krista to set foot on the grounds.

“She only gets an hour of school,” her mother said. “She can only come in three days a week, after regular hours when the other kids are not around. She has been given a desk in the principal’s office. She is not to go in the halls, the bathroom, to her locker, or around any of the other kids. She cannot attend any school dances. We cannot deal with this anymore.”

A letter signed by the principal, William J. Grusecki, threatens Krista with truancy if she fails to comply with these rules.

“The bishop of our church came to our home to discuss this situation,” Starr says. “He told us that the church could not stand behind us and that Krista was going to burn in Hell. We were asked to leave the church. We have been asked to leave our home.”

Robert has also received numerous death threats in Tawas and was once almost intentionally run over by a car filled with taunting assailants. Hooligans hurling anti-gay obscenities have frequently awakened the family in the middle of the night, and their car has been “keyed.” His mother said she spent hundreds of dollars on a bodyguard to accompany her son and his boyfriend Drew Goeke to the Homecoming Dance last October to guarantee their safety.

In Los Angeles, Ashly Massey, a 15-year-old female student who says she was banned from gym class because she is a lesbian filed a lawsuit  against her instructors and the school district, accusing them of discrimination.

Massey and her mother, along with the American Civil Liberties Union and the National Center for Lesbian Rights claim that in March, when Ashly was an 8th grade student at Coombs Middle School in Riverside County, she was removed from physical education class and made to sit in the school principal’s office.

The suit alleges that Ashly’s gym teacher told the girl’s mother, Amelia Massey, that her daughter’s sexual orientation made other girls in the class “uncomfortable being around Ashly in the locker room.”

The gym teacher allegedly told Ashly she was no longer allowed to go to P.E. class, and for the next week and a half Ashly said she was made to sit in the principal’s office instead of participating in the class.

But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance.” AARON FRICKE v. RICHARD B. LYNCH, Principal of Cumberland High School Civ. A. No. 80-214 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND   491 F. Supp. 381; 1980 U.S. Dist. LEXIS 11770 May 28, 1980.
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