Ugh Damn You Idaho...

... because now I have to update the marriage map to include Alaska and Idaho.

Bastards making me do work.


Liam '14

"Virginia is for Buttfuckers" Probably Won't be Their New Slogan

On October 6, the Supreme Court denied cert. to the 490 kagillion 7 marriage cases before the Court. 

I celebrate the fact that on Monday morning, 58.92 percent of the country will have full access to consensual marriage based off of 2013 population projections.

Prior to last week’s non-decision-decision, I listed several reasons as to why this will be a historically significant failure of the Court. In around two years it appears that every jurisdiction in the United States will acknowledge marriage equality, without the Supreme Court acting.

In the upcoming months after Texas and Florida (and a few other stragglers) recognize marriage equality, around 89.90 percent will be able to, with consent, marry whomever they choose. 

But that still means that tomorrow, around 40 percent of gay people will have fewer rights than heterosexuals on death row. It also means that due to the timing, there will be no decision like Loving v. Virginia for gays. The Roberts Court will not be viewed by kindly by history over their non-decision, like the Warren Court. There is no apology for 230 years of legal discrimination.

I am reposting this graphic created by Randall Munroe at xkcd.com, who created a graphic that explains my feelings better than what words can express.

http://xkcd.com/1431/

Go to xkcd.com for more fabulous cartoons.

Liam ‘14

Obscenity on Trial Part VI

This is Part VI in a series on One, Inc. v. Olesen, which dealt with obscenity laws.

Click here for Part I, Part II, Part III, Part IV, Part V

In this part I will be focusing on the modern jurisprudence in relation to obscenity. In the United States, court turn to the Miller Test to define whether or not a work is to be considered obscene. 

Prior to the Miller Test, the definition of obscenity more or less was non-existent as there were over 30 obscenity trials between 1966-1972, all with different standards. As previously discussed, the Roth Test had the most weight to it; however it was a deeply flawed test due to its incompleteness.

The effect of the Miller Test are that it clarified obscenity, liberalized obscenity laws, and reduced the number of obscenity cases.

To understand the effects of the Miller Test, it's necessary to under what it is.The Miller Test on obscenity can be found in the holding of Miller v. California, 413 U.S. 15 (1973):

a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest,

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.

For a material to be obscene it must fail all of the three prongs of the test.

The first prong of the Miller Test is the Roth Test verbatim. It establishes who determines obscenity (average person), which standards (contemporary community), what material (ones with the purpose of giving a man a stiffy.)  My Black's Law Dictionary  is away from me at the moment, but a common definition of prurient is "that which incites lasciviousness or lust."

The second prong of the Test establishes that the obscene material must depict or describe sexual content as defined by the appropriate state law.

And thirdly it establishes that the material must be taken as a whole, and whether the material has relevant redeeming factor such as artistic, political or scientific value. The third prong is interesting as it is a check on the second prong, as it  makes sure that the state law isn't overly stringent.

Prong three is where the test becomes revolutionary.

The Miller Test, as it is stated, makes it easy enough for the adult film industry to tailor their material to fit the test. Films and naughty magazines simply need to mascaraed as art. I think the pizza delivery man's penis was a metaphor for the internal conflict of modern social conditions and  between the internal, animalistic drives of a rugged individualist with lube.

I posted the following video to YouTube which goes further into the circumstances of Miller v. California. It's perhaps a bit cheeky and the production quality isn't the greatest, but I recommend watching it if you are still interested in the matter.

I want to reemphasize that I am not a apologist for the Miller Court. I think obscenity generally is an unwarranted burden on free speech. What I respect about the Miller Test is that it improved the situation, and hopefully our legal structure will continue to protect artist from obscenity charges. But every once in a while a trigger-happy prosecutor will still unjustly target a pornographer on obscenity charges in a wave of conservative fervor.


Liam '14

Click here for Part I, Part II, Part III, Part IV, Part V

A Gay Reading of Lawrence v. Texas

Hey Look what I found on YouTube.

Some dickhead stole my voice, my image, and my childlike sense of humour. Oh, wait no, I was drunk again and decided it would be fun to post a video.

So go check it out if you fucking hate reading.

I'm planning on reading some of my favorite cases and doing my thing with them. So keep a look out for more.



Liam '14

Obscenity on Trial Part V

This is Part V in a series on One, Inc. v. Olesen, which dealt with obscenity laws.

Click here for Part I, Part II, Part III, Part IV, Part VI

Moving from the 9th Circuit decision, it's funny how a longer decision such as the 9th Circuit's can be reversed by so few words. One, Inc. v. Olesen, 355 U.S. 371 (1958) states:

Eric Julber for petitioner.

Solicitor General Rankin, Acting Assistant Attorney General Leonard and Samuel D. Slade for respondent.

PER CURIAM.  

The petition for writ of certiorari is granted and the judgment of the United States Court of Appeals for the Ninth Circuit is reversed. Roth v. United States, 354 U.S. 476.

And that's it. The Supreme Court here is referring to the Roth test which states:

"whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

In other words, does the average person see it as directly sexual. And in One's case, nope.

While Roth does go mostly uncommented, the 9th Circuit didn't entirely ignore Roth:

The poem pertains to sexual matters of such a vulgar and indecent nature that it tends to arouse a feeling of disgust and revulsion. It is dirty, vulgar and offensive to the moral senses. Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765; United States v. Limehouse, 285 U.S. 424, 426, 52 S.Ct. 412, 76 L.Ed. 843; Tyomies Publishing Co. v. United States, 6 Cir., 1914, 211 F. 385, 390; United States v. Roth, 2 Cir., 237 F.2d 796, 799, 800. 

So it would appear the consequence of One, Inc. v. Olesen is that depictions of homosexuality is not per se obscene. That simple though is so short, but it was the first pro-gay ruling in American History. Without this ruling there may not have been a gay rights movement. No communication, no organization.

Stay tune for the conclusion of this series which examines the Miller test, which comes out of Miller v. California. The Miller test is the current obscenity test.  


Liam '14

Part I, Part II, Part III, Part IV, Part VI

To fulfill my obscenity and obligatory masturbation joke quota, if you disagree with any position expressed here, you can go finger yourself, super-deep like a sock puppet.

Obscenity on Trial Part IV

This is Part IV in a series on One, Inc. v. Olesen, which dealt with obscenity laws.

Click here for Part I, Part II, Part III, Part V

In this section I will review the 9th Circuit decision  One, Inc. v. Olesen, 241 F.2d 772 (9th Cir. 1957).

The trial court in Paragraph 6 of its Findings of Fact, referred to by plaintiff in its specifications of error, made the following findings: 

1. The story "Sappho Remembered" appearing on pages 12 through 15, is obscene because lustfully stimulating to the homosexual reader. 

Yes, who couldn't help but notice the cum stains on the decision from the judge ferociously fapping to Sappho Remembered.

2. The poem "Lord Samuel and Lord Montagu", appearing on pages 18 and 19, is obscene because of the filthy language used in it. 

Actually, no, that's not what the judge found. The judge found the poem as a whole to be "filthy and obscene."  He did not mention the language, in which it was not at all filthy.

3. The advertisement for the Swiss publication "The Circle" appearing at the top of page 29, is non-mailable matter because it gives information for the obtaining of obscene matter.
Briefly stated, the specifications of error made by plaintiff, raise but one question, namely: Whether or not the October 1954 issue of "One" is non-mailable matter under the provisions of Sec. 1461, Title 18 U.S.C.A.***

As we view this case we are only concerned with the proper application of a postal regulation, a prosaic and every day matter of the administration of the post office department. Section 1461 amounts to no more than that. Approaching the problem in this workaday manner we find that "One" has already suffered two reverses in this connection, the first at the hands of the Postmaster, the other by reason of the judgment of the District Court sustaining the Postmaster's ruling.

So if the lower court agrees with the postmaster, it's game-over? So two people found it filthy, so it is filthy done?

At this point it can be observed that there is no dispute on factual matters. 

The District Court found that the ruling of the Postmaster was reasonable and supported by the proof — the contents of the magazine.

 Ummm really? The District Court didn't once quote the magazine.

Unless we find that the initial order of the Postmaster barring the magazine from the mails was arbitrary, or capricious, or an abuse of discretion, or that there are no reasonable grounds in the record to support the District Court in upholding the Postmaster's order, we are required to sustain. 

 Are there any guidelines for what constitutes obscenity? If it is "I know it when I see it," then that by definition is arbitrary.

Our problem here is one of the administration of the post office, and that in turn depends on whether or not the matter sought to be mailed, in this instance the October 1954 issue of the magazine "One", is obscene, lewd, lascivious, filthy or indecent. These words can only be defined by some discussion of the moral sense of the public, and it is only to such extent that we are concerned with public morals. In approaching the moral side of the issue here presented we are not unmindful of the fact that morals are not static like the everlasting hills, but are like the vagrant breezes to which the mariner must ever trim his sails.

And this is in no way an arbitrary law? How is every piece of mail going to be judged?

***The words of the statute, "obscene", "lewd", lascivious", "filthy" and "indecent", are words of common usage and meaning. In considering the scope and meaning of the words the courts have, through the course of the years, given to such words legal definitions and distinctions, following very closely, if not precisely, the definitions and distinctions found in the recognized standard dictionaries. 

So these words are of common usage and shouldn't be defined. Thus it is up to the mailman to decide what is fit to deliver? How is that not arbitrary?

Mr. Justice Harlan in delivering the opinion of the court in Rosen v. United States, 161 U.S. 29, 43, 16 S.Ct. 434, 438, 40 L.Ed. 606, said, "Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious." In that case the court approved the following test of obscenity given in an instruction of the trial court: "The test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence and into whose hands a publication of this sort may fall." "Would it * * * suggest or convey lewd thoughts and lascivious thoughts to the young and inexperienced?" 

What utter bullshit. So a subscription based magazine which is delivered exclusively to gays would corrupt, I don't fucking know, let's say 2 year old Mormons? So fucking dumb. Stupid. Stupid. Stupid. I mean the first quote is good, "The test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence and into whose hands a publication of this sort may fall." A magazine geared at horny 40 year old men, such as Hustler, is appropriate for horny 40 year old men. And mailing poorly xeroxed pictures of your balls to random strangers is not appropriate. The postal service could set non-arbitrary standards around that and remove the arbitrary nature which would actually protect people's "sensibilities" without overly intruding in on free speech.

In Dunlop v. United States, 165 U.S. 486, 500, 501, 17 S.Ct. 375, 380, 41 L.Ed. 799, the Supreme Court approved the following instruction: 

"Now what are obscene, lascivious, lewd, or indecent publications is largely a question of your own conscience and your own opinion; but it must come — before it can be said of such literature or publication — it must come up to this point: that it must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes. * * * It is your duty to ascertain, in the first place if they are calculated to deprave the morals; if they are calculated to lower that standard which we regard as essential to civilization; if they are calculated to excite those feelings which, in their proper field, are all right, but which, transcending the limits of that proper field, play most of the mischief in the world." 

So if this is your test for obscenity, you are claiming same-sex attraction is per se morally depraved and  is "lower[ing] that standard which we regard as essential to civilization." To which I retort, you can go suck a dick, you worthless, shit-eating bastard.

***The Sixth Circuit in Tyomies Publishing Co. v. United States, 211 F. 385, at page 390, defined the word "filthy" as meaning "`that which is nasty, dirty, vulgar, indecent, offensive to the moral senses, morally depraving and debasing.'" 

So Stars and Stripes, a military newspaper, is in line with morality, yet one that depicts gay people (not gay sex) is filthy. I'm glad to see your morals are in order.

Judge Pope, in Burstein v. United States, 9 Cir., 178 F.2d 665, 666, approved the following instruction defining obscene, lewd, or lascivious: 

"Matter is obscene, lewd, or lascivious, within the meaning of the quoted statute, if it is offensive to the common sense of decency and modesty of the community, and tends to suggest or arouse sexual desires or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard.

 To break down the Burstein Test:

1. Is it offensive to the common sense of decency and modesty of the community?
2. and does it tend to suggest or arouse sexual desire or thoughts in the minds of those who by means thereof may be depraved or corrupted in that regard?

So unless the judge was fapping away like it was the first time he ever saw the lingerie section of a Sears-Roebuck catalogue, then even by their own prudish test One should have been delivered.

***Plaintiff, as publisher, states on the second page of the magazine that it is published for the purpose of dealing primarily with homosexuality from the scientific, historical and critical point of view — to sponsor educational programs, lectures and concerts for the aid and benefit of social variants and to promote among the general public an interest, knowledge and understanding of the problems of variation. The story "Sappho Remembered", appearing on pages 12 to 15 of the magazine, the poem "Lord Samuel and Lord Montagu" on pages 18 and 19, and the information given on page 29 as to where to obtain "The Circle", a magazine "with beautiful photos", do not comport with the lofty ideals expressed on page 2 by the publishers.

The article "Sappho Remembered" is the story of a lesbian's influence on a young girl only twenty years of age but "actually nearer sixteen in many essential ways of maturity", in her struggle to choose between a life with the lesbian, or a normal married life with her childhood sweetheart. The lesbian's affair with her room-mate while in college, resulting in the lesbian's expulsion from college, is recounted to bring in the jealousy angle. The climax is reached when the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism. It falls far short of dealing with homosexuality from the scientific, historical and critical point of view. 

Fap Fap Fap Fap. "Honey we're out of hand lotion again." At least this time it is obvious the Judge has read the magazine; however Sappho Remembered is not cheap pornography. It may not be worthy of the New Yorker literary section, but it still is literature.

Also the argument that "it falls far short of dealing with homosexuality from the scientific, historical and critical point of view" is arbitrary and fucking pointless. I would argue that the story is a "critical point of view" of the heteronormative hegemony that dictates (through this case in fact) a woman's place is to get married to a man. But regardless, a magazine is not obligated to follow their own mission statement.

The poem "Lord Samuel and Lord Montagu" is about the alleged homosexual activities of Lord Montagu and other British Peers and contains a warning to all males to avoid the public toilets while Lord Samuel is "sniffing round the drains" of Piccadilly (London). The poem pertains to sexual matters of such a vulgar and indecent nature that it tends to arouse a feeling of disgust and revulsion. It is dirty, vulgar and offensive to the moral senses. Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765; United States v. Limehouse, 285 U.S. 424, 426, 52 S.Ct. 412, 76 L.Ed. 843; Tyomies Publishing Co. v. United States, 6 Cir., 1914, 211 F. 385, 390; United States v. Roth, 2 Cir., 237 F.2d 796, 799, 800. 

Come on and use your big boy words and point out where and how it is vulgar. Secondly, ummm if you feel disgusted, then isn't it bad at recruiting the gays? Shouldn't that sound off warning bells in your tiny stupid fucking head that something else is happening. Or is it that you are so morally superior to everyone else. Fucking Prick.

An article may be vulgar, offensive and indecent even though not regarded as such by a particular group of individuals constituting a small segment of the population because their own social or moral standards are far below those of the general community.

Hurrah! I would take offense, but since I made it this far I am reveling in his disdain.

Social standards are fixed by and for the great majority and not by or for a hardened or weakened minority. As this Court said in Besig v. United States, 208 F.2d 142, at page 145: 

"It is of course true that the ears of some may be so accustomed to words which are ordinarily regarded as obscene that they take no offense at them, but the law is not tempered to the hardened minority of society. The statute forbidding the importation of obscene books is not designed to fit the normal concept of morality of society's dregs, nor of the different concepts of morality throughout the world, nor for all time past and future, but is designed to fit the normal American concept in the age in which we live. It is no legitimate argument that because there are social groups composed of moral delinquents in this or in other countries, that their language shall be received as legal tender along with the speech of the great masses who trade ideas and information in the honest money of decency." 

Quick get Scalia on the phone. We can out law the gays because of morals, and that's definitely in the constitution.

It is difficult to determine if the article contained on page 29 under the caption "Foreign Books and Magazines That Will Interest You", is an advertisement for the magazine "The Circle" or is merely information given by the publisher of "One" to its readers as to where to obtain other books and magazines that may be of interest. Regardless, the situation is the same, if information is given as to where, or how, or from whom, or by what means, obscene or filthy material may be obtained. Although on its face the information in this article appears harmless, it cannot be said that the purpose is harmless. It is for the information of those who read the magazine and particularly the homosexuals. It conveys information to the homosexual or any other reader as to where to get more of the material contained in "One." 

An examination of "The Circle" clearly reveals that it contains obscene and filthy matter which is offensive to the moral senses, morally depraving and debasing, and that it is designed for persons having lecherous and salacious proclivities. 

Fap Fap Fap "Honey why didn't you get the Jergens lotion that I requested. I'm all chafed now."

The picture and the sketches are obscene and filthy by prevailing standards. The stories "All This and Heaven Too", and "Not Til the End", pages 32-36, are similar to the story "Sappho Remembered", except that they relate to the activities of the homosexuals rather than lesbians. Such stories are obscene, lewd and lascivious. They are offensive to the moral senses, morally depraving and debasing. Such literature cannot be classed as historical, scientific and educational for any class of persons. Cheap pornography is a more appropriate classification.

 So fucking what. Once again a magazine's mission statement is not a legal standard.

And secondly if it's "cheap pornography" where is the fucking fucking, you fucking twat.

Plaintiff contends that the magazine "One" when read as a whole is not obscene or filthy within the meaning of these words. In Besig v. United States, supra, we held that the book as a book must be obscene to justify its libel and destruction, but we also held that neither the number of the "objectionable" passages nor the proportion they bear to the whole book are controlling. The magazine under consideration, by reason of the articles referred to, has a primary purpose of exciting lust, lewd and lascivious thoughts and sensual desires in the minds of the persons reading it. Moreover, such articles are morally depraving and debasing. The articles mentioned are sufficient to label the magazine as a whole, obscene and filthy***

Plaintiff's contention that there has been a denial of due process of law is without merit. Plaintiff commenced this action in the trial court and stipulated that the only issue in the case should be determined by the court on the motions for summary judgment and the affidavits filed by each of the parties. There has been a full and fair trial upon proper notice and the issues presented. It does not appear from the record that plaintiff has been deprived of property or liberty without due process of law.

Based upon our comments and observations heretofore given we hold that the record discloses no prejudicial error and the judgment appealed from is affirmed.

In conclusion, the definition of obscene is if "it suggest[s] or convey lewd thoughts and lascivious thoughts to the young and inexperienced." Regardless of target audience the content should be no more mature than a Highlights Magazine.

Furthermore based on analysis of the magazine One, same sex attraction (not even sexual behavior) was per se obscene. Nothing labeled homosexual or homophile could pass the obscenity test, no matter the content.

Now that's obscene.

The next post will deal with the Supreme Court Decision,  One, Inc. v. Olesen, 355 U.S. 371 (1958). And there will be fewer masturbation jokes this time.

I created this image just for fun. I'll probably use this from now on as a placeholder instead of outright calling a judge a dickhead.

Congrats 9th Circuit. You earned it.

Liam '14

Part I, Part II, Part III, Part V

Obscenity on Trial Part III

This is Part III in a series of posts covering One, Inc. v. Olesen, which dealt with obscenity laws.

Click for Part I, Part II, Part IV, Part V, Part VI

Moving from the statutes into the actual District Court decision, it is important to remember that this is an unpublished decision. More or less, it was never intended to give guidance or to define the terms for the public.

Here is the body of the decision with my own annotations:

The motion of the defendant for summary judgement is granted.  The publication of the plaintiff entitled "One, The Homosexual Magazine" is non-mailable matter within the meaning of 18 U.S.C.A. 1461.  "Sappo Remembered" and other stories are obviously calculated to stimulate the lust of the homosexual reader.  

How much do you want to bet the judge was stimulated himself by the story? Fap, Fap, Fap. "Yes, you are a filthy, dirty dirty girl." Fap. Fap. Fap.

Pervert!

The poem "Lord Samuel and Lord Montagu" in particular, is filthy and obscene.

How is it filthy or obscene. Please cite your sources and explain how it is obscene, otherwise you're just making shit up, or worse you're banning something for simply not liking it which is antithetic to Free Speech.

Once again, the poem is fairly innocuous. It's obvious that the judge simply found homosexuals to be intolerable and who shouldn't be recognized as a segment of the population.

 Many of the advertisement for the Swiss publication "The Circle" lead to the obtaining of obscene matter. For these reasons, the injunction against the plaintiff should remain in force. 

So the magazine doesn't show dirty things, only where you can get something else that may or may not be dirty.

The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.

Ha. Called it. What an asshole.

Besides for name calling, an yelling hysterically at the denizens of the 1950s for being bigots, what can we take away from this decision?

Obscenity can be defined as whatever the judge dislike or finds to be filthy. Obscenity needs no perimeters. I cannot even be for certain that the judge actually looked at the magazine because so little evidence is presented.

It is also important to remember this case as history and to marvel at how far the LGBT community has come since this decision. It would now be unconscionable for a judge to write, "The suggestion advanced that homosexuals should be recognized as a segment of our people." And yes this was 60 years ago, but at the same time it was only 60 years ago.

Please notice the accidental ruling in favor of One Inc.  Woops.

Next in these series is I will cover the 9th Circuit Court decision. **Spoilers: there will be more masturbation jokes.**


Liam '14

Part I, Part II, Part IV, Part V, Part VI

Thanks to the Mattachine Society, homophiles such as myself can view our share history. In this case its One, Inc. v. Olesen.

Obscenity on Trial Part II

This is Part II in a series of posts covering One, Inc. v. Olesen, which dealt with obscenity laws.

Click for Part I, Part III, Part IV, Part V, Part VI


The basis of the dispute between One, Inc. and the Postmaster of Los Angeles through the interpretation of 18 U.S.C § 1461 which states:

Mailing obscene or crime-inciting matter 

Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and[...]

[...]Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose...  

[...]Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

.Whoever knowingly uses the mails for the mailing,[...]shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

Q: So why is the mailman going through my mail? A: To see if I have written any hyper-gay erotica to my lovers of all the times I have been fisted... I mean obviously that's the case.

In applying the operative statute to the materials presented in the 1954 October issue of One Magazine, it is of little surprise that in 1954 a seemingly innocuous, yet pro-homophile magazine would be considered lewd. 

After all, it wasn't until 1967 that the Supreme Court overturned anti-miscegenation laws with Loving. Seriously, fuck the 1950s (although it wasn't until 1994 that a majority of Americans supported interracial marriage.)

One thing disappointing with One Magazine having been deemed obscene is that the obscenity label was applied without any overt references to sex. Simply being gay is the same as having gay sex. In other words the penis and the anus become metonymic concepts for gay men. It is literally dehumanizing for the law to function in this fashion.

Perhaps the most bizarre portion of this article is that the statutes I cited is the current version. There have been so many cases between Roth v. U.S. and now that the obscenity laws hardly exist. But they exist.

Obviously, as is the case with every legal scenario, how the terms of the statute are define determines the implementation of the law.

Words like obscene, lewd, lascivious, indecent, filthy and vile need to be defined in order to give the statute breadth.

In the next part, I will be diving into the court decisions to find how those words are defined by the courts (Hint: the answer is largely unsatisfactory to free speech advocates.)

Liam '14

Part I, Part III, Part IV, Part V, Part VI

Obscenity on Trial Part I

An old case challenging portions of the Federal Anti-Obscenity Laws recently caught my eye. In October 1954, One: The Homosexual Magazine was designated un-mailable by the Postmaster of Los Angeles. So in response to this blatant violation of the First Amendment, One, Inc. sued the Postmaster.

For the next few post I want to dive into One, Inc. v. Olesen and look into the contents of the magazine, the statutory frame work, and the three decisions that arose.

According to the University of Southern California, One was first published in January 1953 when W. Dorr Legg and other members of the Mattachine Society decided to publish hardcore erotica a magazine explicitly for LGBT Community. Even though Illinois was the only state to decriminalize the game "hide the salami" prior to 1970, the magazine continued publication until 1967. The circumstances are unbelievable in two ways: it is unbelievable that a magazine advocating a crime could be tolerated; it is unbelievable that in a "free" society consensual sex could be illegal in many circumstances.  

Cover of One October 1954

I have republished the poem Lord Samuel and Lord Montagu which along with Sappho Remembered were considered by the Postmaster to be the epitome of "obscenity."

Lord Samuel and Lord Montagu

(A New and Very Bab Ballad by Brother Grundy, Hollywood 1954)

“…Now…we find our dismay that the vices of Sodom and Gomorrah appear to be rife among us… we may indeed be on the eve of a new Elizabethan Age.”

Viscount Samuel, News of the World

“And Samuel said, What meaneth then this bleating of the sheep in mine ears, and the lowing of the oxen which I hear?”

I Samuel, 15-14

Lord Samuel says that Sodom’s sin
Disgrace our young Queen’s reign,
An age that in this plight begin
May well end up in flame.

As if to show his words are true
Of commoner and peer—
It’s goal for Baron Montagu
For upwards of a year!

His ins and outs with various Scouts
Had caused a mild sensation.
Accomplice airmen take the stand—
Secure the Lord’s damnation.

A Labour Member, Mr. Field
For “importuning” fined is,
The spivs, the M.P’s. richly heeled,
Discover Justice blind is.

The GENT’S at Piccadilly say
The press, both tame and raucous,
Of places the most silly is
To hold a party caucus!

Lord Samuel is a legal peer
(While real are Monty’s curls!)
Some peers are seers but some are queers—
And some boys WILL be girls.

In good Victoria’s glorious days
When Sammy was a child
Were things perverse a great deal worse?
Is Wildeblood worse than Wilde?

This new Elizabethan age
The ancient pattern fits—
When Roister Doister held the stage
And the boys were Honest Kit’s.

Gomorrah, Pompeii, Corinth, Tyre,
Rome, London— all a piece—
It seems the fat’s been in the fire
Ere Athens was in Greece.

While Priestley tell the B.B.C.
About the “invert clique”
Why should this Second Samuel flee
The bleating of the sheep?

Had he beheld— this Statesman Eld’—
The Vice of other reigns,
Would he thus the “Lily” geld
Or throw him to the flames?

Would he idly waste his breath
In sniffing round the drains
Had he known “King Elizabeth”
Or roistering “Queen James”?

Moral

They say the sins of Sodom
In these Isles have come to roost—
So if your flying east from GANDER
Watch you don’t fairly “goosed”.

And if you wish to Pick a Dilly
When you’re strolling out at night,
Just make sure it’s not a “Lily”
Or a male transvestite.

For there’s blackmail in the woodpile
And there’s blackmail by the fence,
But to black male and to white male
It’s: AVOID THE PUBLIC “GENTS”!

Lord Samuel and Lord Montagu

Fap! Fap! Fap!

Sorry, but that was so dirty and erotic I couldn't stop masturbating. Fuck the 1950s, those homophobic, racist assholes. That was fairly innocuous and in no way lewd.

Wikipedia offers some background on the situation that will help clarify the meaning of the poem, which is in part lost on the modern reader:

In the summer of 1953, Lord Montagu of Beaulieu had offered Wildeblood the use of a beach hut near his country estate. Wildeblood brought with him two young RAF servicemen, his lover Edward McNally and John Reynolds. The foursome were joined by Montagu's cousin Michael Pitt-Rivers. At the subsequent trial the two airmen turned Queen's Evidence, and claimed there had been dancing and 'abandoned behaviour' at the gathering. Wildeblood said it had in fact been 'extremely dull'. Montagu claims that it was all remarkably innocent, saying: 'We had some drinks, we danced, we kissed, that's all.'[4]

Arrested on 9 January 1954, in March of that year Wildeblood was brought before the British courts charged with 'conspiracy to incite certain male persons to commit serious offences with male persons' (or 'buggery').[5] Wildeblood was charged along with Lord Montagu and Michael Pitt-Rivers, and during the course of the trial he admitted his homosexuality to the court.[6] Montagu received a 12 months sentence, while Wildeblood and Pitt-Rivers were sentenced to 18 months in prison as a result of these and other charges. The result of the trial led to an inquiry resulting in the Wolfenden Report, which in 1957 recommended the decriminalisation of homosexuality in the UK. Wildeblood's testimony to the Wolfenden committee was influential on its recommendations.

So, yes the poem is about people who had gay sex. But that does not mean that it is about gay sex. 

While this article that I am writing is about the queer experience prima facie, the more sinister reality is that obscenity laws are dangerous to all groups. If the poem Lord Samuel and Lord Montagu were obscene, is it that much of a stretch to label Democrats as lewd for supporting gay marriage (or anything else icky for that matter.)  It would appear that obscenity is whatever the Postmaster or legislative body or particular judge hearing the case determines it to be.

Part II. Part III, Part IV, Part V, and Part VI will explain why that isn't entirely how modern America works.

Liam '14

Go check out Box Turtle Bulletin  and Gay News Ephemera, who both have posted scans of One Magazine, which without I could not have done this post. 

The Dawn

Perhaps there is a little more good news out of the Wisconsin Marriage news.  The price of marriage equality has been high both on the individuals launching  the lawsuits and to the tax payers who are on the hook for defending their States' constitutional bans.

So it is down right pleasant to find a little nugget of extra good news within Wolf v. Walker. In the court case, there appears to be some juicy little dicta:

Because of the uncertainty in the law and because I am deciding the case in plaintiffs' favor on other grounds, I decline to wade into this jurisprudential thicket at this time. However, the court of appeals’ statement that sex and sexual orientation are related provides some support for a view that, like sex discrimination, sexual orientation discrimination should be subjected to heightened scrutiny.

What can I say, I love me some dicta...But let me back up and explain exactly how this can be used for furthering gay rights. Wisconsin has a version of ENDA in place, so it would be little help to gay people to join in to the EEOA. However, the law doesn't provide protections for gender identity.

So when I read this naughty little bit I had to go back and read the section over:

Plaintiffs identify two theories of sex discrimination. The first is straightforward: if each plaintiff was to choose a marriage partner of the opposite-sex, he or she would be permitted to marry in Wisconsin. Therefore, plaintiffs say, it is because of their sex that they cannot marry. Plaintiffs’ second theory is more nuanced and relies on the concept of sex stereotyping. In particular, plaintiffs say that Wisconsin’s ban on marriage between same-sex couples “perpetuates and enforces stereotypes regarding the expected and traditional roles of men and women, namely that men marry and create families with women, and women marry and create families with men.” Plts.’ Br., dkt. #71, at 18...

With respect to plaintiffs’ second theory, there is support in the law for the view that sex stereotyping is a form of sex discrimination. Virginia, 518 U.S. at 541-42 (“State actors controlling gates to opportunity . . . may not exclude qualified individuals based on fixed notions concerning the roles and abilities of males and females.”) (internal quotations omitted); Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989) (“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matc[h] the stereotypes associated with their group.”). See also Doe by Doe v. City of Belleville, Illinois, 119 F.3d 563, 581 (7th Cir. 1997)(“A woman who is harassed . . . because [she] is perceived as unacceptably ‘masculine’ is harassed ‘because of’ her sex. . . . In the same way, a man who is harassed because . . . he exhibits his masculinity in a way that does not meet his coworkers' idea of how men are to appear and behave, is harassed ‘because of’his sex.”) (citations omitted). But see Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1068 (7th Cir. 2003) (Posner, J., concurring) (“‘Sex stereotyping’ should not be
regarded as a form of sex discrimination, though it will sometimes . . . be evidence of sex discrimination.”). Some commentators have argued that sexual orientation discrimination should be seen as the ultimate form of sex stereotyping because it is grounded in beliefs about appropriate gender roles, e.g., Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187 (1988), but plaintiffs have not cited any courts that have adopted that theory and I am not aware of any.

Plaintiffs’ arguments about sex discrimination are thought-provoking enough to have caught the interest of at least one Supreme Court justice. Oral argument, Hollingsworth v. Perry, No. 12-144, 2013 WL 1212745, at *13 (statement of Kennedy, J.) (“Do you believe [that a ban on same-sex marriage] can be treated as a gender-based classification? It's a difficult question that I've been trying to wrestle with it.”). However, neither the Supreme Court nor the Court of Appeals for the Seventh Circuit has embraced either theory asserted by plaintiffs. With respect to the first theory, the court of appeals assumed in a recent case that a sex-based classification may be permissible if it imposes comparable burdens on both sexes. Hayden ex rel. A.H. v. Greensburg Community School Corp., 743 F.3d 569, 581 (7th Cir. 2014) (“Sex-differentiated standards consistent with community norms may be permissible to the extent they are part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens on both males and females alike.”). With respect to the second theory, the court has stated that there is “a considerable overlap in the origins of sex discrimination and homophobia,” but the court declined to “go so far” as “to conclude that anti-gay bias should, in fact, be understood as a form of sex discrimination.” Doe, 119 F.3d at 593 n.27. The Supreme Court has not discussed either theory as it relates to sexual orientation.

Because of the uncertainty in the law and because I am deciding the case in plaintiffs’ favor on other grounds, I decline to wade into this jurisprudential thicket at this time. However, the court of appeals’ statement that sex and sexual orientation are related provides some support for a view that, like sex discrimination, sexual orientation discrimination should be subjected to heightened scrutiny.

So perhaps.. I have yet to read any article backing this approach or referencing this paragraph. But.... But.. it is there. 

This is big. Perhaps.


Liam '14

Heterophobia Gaysplained

All Michael Sam and No Play Makes Liam a Dull Boy. Blah blah blah, Michael Sam, blah blah blah. Blah blah, blah blah blah blah, blah blah vibrator blah. Blah blah blah blah blah blah Christianist douchebag, blah blah blah blah blah IB Times article written by Greg Price
on May 14 2014:

A Christian lobbyist has launched a boycott against the St. Louis Rams, openly gay defensive end Michael Sam, and credit card giant Visa.

In February, Jack Burkman, who head’s his Washington-based firm JM Burkman & Assoc., vowed to boycott any team or company that works with Sam and he has stayed true to his word. Burkman said the Rams and Sam are violating Christian beliefs, and that he's mobilized a grassroots campaign made up of a coalition of Christian leaders in 27 of the 50 U.S. states, according to The Independent.

“Visa and the Rams will learn that when you trample the Christian community and Christian values, there will be a terrible financial price to pay,” said Burkman.

“Openly gay football players send a terrible message to our youth about morality. Somebody needs to step up because the moral fiber of the nation is eroding.”

Please read the article if you aren't dying from ennui. 

Anyway...

First of all, wow, Jack Burkman has contacts in 27 of the 50 states... good for him... I hope his mom stops for ice cream after soccer practice...  78.5 percent of the nation is Christian. It is positively laughable that his coalition isn't in 48 of the 50. If all non-Christians lived in their own states, they would occupy 10 states. Even if that were the case, he should still be able to find contacts in the remaining 40.

Secondly, how and in what way is Michael Sam playing in the NFL trampling "the Christian community and Christian values." It's just so fucking stupid, res ipsa loquitur. Dear lord my head hurts simply trying to write this article. 

It is my experience that most of the gays that I know are looking forward to day when the act of existence is not viewed as a political statement. 

Blah Blah Blah

So I went to Photoshop and here's what Heterophobia would look like:

And how about this:

Or this:

Have you ever seen this?

What about from prominent gays:

Yeah, I haven't seen that either...

I realize that last one doesn't make a lick of sense, so I fixed it:

Wapow!

I was going to show actual photos that were the result of homophobia, but it was too much. So I posted a bunch of links that shows what homophobia actually looks like.

Warning: the following is far too graphic for this blog.

Mark Carson

Barie Shortell

Kerry Tyler Street (Actually Straight)

Dustin Martin

Ferrucio Silvestro

Wilfred de Bruijn

Sachsenhausen

And so many more, but I just can't go any further...


Liam '14

Apparently there are no Men in Gay Marriages

Thursday the 10th Circuit Court heard the oral argument to Kitchen v. Herbert 2: If You Can't Stand the Heat. Coming this Fall.

Kitchen is the groundbreaking decision out of the District Court of Utah that was the first ruling to overturn a marriage ban after the Windsor and Perry rulings. Yes, Utah.. right? But then again the court does what the constitution wants.

After the Kitchen decision, a tsunami of lower court decision, heretofore known as the Gaydal Wave of 2013, gave deference to the 14th amendment, which of course had previously been turned down by the Burger Court in Nelson v. Baker for "want of a substantial federal question."

The post Perry/Windsor victories cropped up in Utah, New Mexico, Oklahoma, Texas, Michigan Kentucky, Tennessee, and Virginia, while pending cases in Alabama, Arizona, Arkansas, Florida, Idaho, Indiana, Louisiana, Mississippi, Nebraska, North Carolina, Ohio, Pennsylvania, Puerto Rico, South Carolina, West Virginia, Wyoming, and Wisconsin all look increasingly promising.

When going through all the material to see on a national scale what marriage looks like, I became interested in how the United States got to this point, legally speaking. Before I read Kitchen, I knew the basics of the history. The basic frame work looks like this Loving v. Virginia, Nelson v. Baker, Bowers, Romer, Lawrence v. Texas, Windsor, and Perry. 

In Kitchen there is a great section that summarizes the movement towards equality:

In 1971, two men from Minnesota brought a lawsuit in state court arguing that Minnesota was constitutionally required to allow them to marry. Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971). The Minnesota Supreme Court found that Minnesota's restriction of marriage to opposite-sex couples did not violate either the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. Id. at 186-87. On appeal, the United States Supreme Court summarily dismissed the case "for want of a substantial federal question." Baker v. Nelson, 409 U.S. 810, 810 (1972).

Utah argues that the Court's summary dismissal in Baker is binding on this court and that the present lawsuit should therefore be dismissed for lack of a substantial federal question. But the Supreme Court has stated that a summary dismissal is not binding "when doctrinal developments indicate otherwise." Hicks v. Miranda, 422 U.S. 332, 344 (1975).

Here, several doctrinal developments in the Court's analysis of both the Equal Protection Clause and the Due Process Clause as they apply to gay men and lesbians demonstrate that the Court's summary dismissal in Baker has little if any precedential effect today. Not only was Baker decided before the Supreme Court held that sex is a quasi-suspect classification, see Craig v. Boren, 429 U.S. 190, 197 (1976); Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (plurality op.), but also before the Court recognized that the Constitution protects individuals from discrimination on the basis of sexual orientation. See Romer v. Evans, 517 U.S. 620, 635-36 (1996). Moreover, Baker was decided before the Supreme Court held in Lawrence v. Texas that it was unconstitutional for a state to "demean [the] existence [of gay men and lesbians] or control their destiny by making their private sexual conduct a crime." 539 U.S. 558, 578 (2003). As discussed below, the Supreme Court's decision in Lawrence removes a justification that states could formerly cite as a reason to prohibit same-sex marriage.

The State points out that, despite the doctrinal developments in these cases and others, a number of courts have found that Baker survives as controlling precedent and therefore precludes consideration of the issues in this lawsuit. See, e.g., Massachusetts v. U.S. Dep't of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (holding that Baker "limit[s] the arguments to ones that do not presume to rest on a constitutional right to same-sex marriage."); Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1002-03 (D. Nev. 2012) (ruling that Baker barred the plaintiffs' equal protection claim). Other courts disagree and have decided substantially similar issues without consideration of Baker. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (ruling that California's prohibition of same-sex marriage violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment). In any event, all of these cases were decided before the Supreme Court issued its opinion in Windsor.

As discussed above, the Court's decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development. Importantly, the Windsor Court foresaw that its ruling would precede a number of lawsuits in state and lower federal courts raising the question of a state's ability to prohibit same-sex marriage, a fact that was noted by two dissenting justices. The Honorable John Roberts wrote that the Court "may in the future have to resolve challenges to state marriage definitions affecting same-sex couples." Windsor, 133 S. Ct. at 2697 (Roberts, C.J., dissenting). And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it: "I do not mean to suggest disagreement . . . that lower federal courts and state courts can distinguish today's case when the issue before them is state denial of marital status to same-sex couples." Id. at 2709 (Scalia, J., dissenting). It is also notable that while the Court declined to reach the merits in Perry v. Hollingsworth because the petitioners lacked standing to pursue the appeal, the Court did not dismiss the case outright for lack of a substantial federal question. See 133 S. Ct. 2652 (2013). Given the Supreme Court's disposition of both Windsor and Perry, the court finds that there is no longer any doubt that the issue currently before the court in this lawsuit presents a substantial question of federal law.

As a result, Baker v. Nelson is no longer controlling precedent and the court proceeds to address the merits of the question presented here.

The Burger Court's denial of Certiorari in Baker v. Nelson had persistent consequences for the marriage equality movement. No court could accept a 14th Amendment argument except the Supreme Court. The Supreme Court would then have no lower court decisions to argue over. Essentially until laws fundamentally changed, any decision would have had to been de novo. 

The legal shift happened, incidentally after 3 events occurred:

1. The passage of the Defense of Marriage Act in 1996 which were codified under 28 U.S.C. § 1738C and 1 U.S.C. § 7. Among other things, it allowed states to not recognize Gay some marriages. It also forbade the Federal Government from recognizing Gay some marriages.

2. State Constitutional Bans. Under the logic of Baker, the issue at hand applied to statutory bans. So a boost to the advancement of marriage equality came from those who exploited discrimination for political gain. The movement to enact state constitutional bans against same-sex marriage began in 1998 with Alaska and Hawaii amending their constitutions to prohibit gays from  getting all gay with each other, am I right fellas?  

3. Marriage equality in the various states. People were married in one state and later moved to another. The notions of full faith and credit were challenged. Furthermore marriages were not equal at the federal level, due to DOMA.

By the time the courts had reached the Perry/Windsor Era, the legal landscape of America look like the following:

Maximum States Constitutional Bans: 30
States with Marriage Equality at the Time of Perry/Windsor: 9
Maximum States to Ever Have Marriage-Lite: 16 + DC

The legal setting was in place to overturn the Baker v. Nelson precedent.

Which brings me to the oral argument for Kitchen.

Here is copy of the oral argument from the April 10th, 2014 Kitchen v. Herbert hearing. It is three straight white dudes discussing my rights as an individual, so what could be more entertaining and in no way frustratingly patronizing.

The audio file has an issue with the left audio feed, so if it sounds gargled, open your equalizer and push the feed to your right output.

A few quick comments:

What is marriage? Apparently only something that a state has one hundred percent control over (because that's what I concluded from reading Loving v. Virginia.)

According to the defendant, it's better to have all of your rights taken away than to be a second class citizen... great argument.

Why the fuck did the defendants just bring up Maggie Gallagher? Seriously. She is a pointless nobody, with zero credibility. She has no higher degree, no JD, no Phd in psychology, and no expertise. I mean for fuck-sake, why didn't they just cite me or even my mom, or fuck it why not my Westie, who can put together an argument that is more coherent and more germane to the topic than Gallagher.  What a bunch of assholes. fucking fuck fuck. I mean seriously, I am glad this douchebag quoted her, because it is on tape, and he will go down in history as the small-minded bigot who quoted Gallagher and then got his ass handed to him in court and everyone in the world pointed and laughed at his tiny dick.

"[Gay marriage] is too new" to have data on societal effects. And so it will be if we never allow gay marriage.

"The disappearance of the dad." We cannot allow gay marriage because the children won't have a dad.... right. Also did he just try to equate gay couples to single parents?

"'Traditional Marriage'" Yes nice 200 year old tradition in a 400,000 year old species. If I hear traditional marriage one more time, I am going to yak.

DOMA was about states right to define marriage, that does not exclude the ability of the Federal constitution to enforce equal protection. It is not that hard to understand. We do not have any laws prohibiting poor people from getting married. Or ex-convicts. Or people named Trent. All of whom probably should be suspect parents/spouses before gay people.

Why don't conservatives get that gay people can have kids. I don't, but others do.

Why does it always come down to polygamy? A court couldn't simply allow polygamy. The polygamous marriage system wouldn't function without additional legislation to regulate how it would function. Most states have a system where each spouse owns half of the property of the marriage. How would that work in a polygamous system? Answer it wouldn't. Polygamy literally changes the definition of marriage, not who can marry.

So did Kitchen et al sue the right people?


Liam '14