Today in History: July 18

10th Circuit Rule on Bishop v. Smith- July 18, 2014

From the Washington Blade:

The ban on same-sex marriage in Oklahoma violates the constitutional rights of same-sex couples living in the state, a federal appeals court ruled Friday.

In a 2-1 decision, a three-judge panel on the U.S. Tenth Circuit Court of Appeals ruled in the case of Bishop v. Smith that Oklahoma’s ban on same-sex marriage is unconstitutional on the basis of a similar decision the court reached against Utah’s marriage ban.

Writing for the majority in a 46-page decision, U.S. Circuit Judge Carlos Lucero, a Clinton appointee, said the court’s ruling in the Oklahoma case “is governed by our ruling” in the Utah lawsuit, Kitchen v. Herbert.

Senate Confirms First Out Gay Man For Federal Bench- July 18, 2011

From the Washington Blade:

The U.S. Senate made history on Monday by confirming for the first time ever an openly gay male to serve as a federal judge.

By a vote of 80-13, the Senate confirmed J. Paul Oetken, whom President Obama nominated in January to sit on the U.S. District Court for the Southern District of New York. A simple majority was required to confirm Oetken.

Programming Update

I'm gonna switch things up a little. If I like it I'll continue, if not, then not. Or it just might be too much of a commitment.

I am going to try to do a daily feature where I publish modern gay history. It will be a daily recap of the events that have shaped the community since around 2005.

New YouTube Channel

For the past little while I have been busy working on a side project, restoring and distributing public domain films. Awesome, I know. A lot of the films are created by queer folk or express gay themes. The channel is called The Flaming Vault, which is in reference to the 1937 Fox studio fire that destroyed 40,000 reels and wiped out the company's archive.

The Public Domain was established in the US Constitution with the Copyright Clause:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Maybe one day I will write an article on why a future copyright extension should be viewed as unconstitutional, but the Supreme Court won't rule that way when congress pass the next extension sometime before 2019. Which reminds me Lessig 2016.

Anyway here is a promo for the channel:

As always the content is ad free on my end.


Liam '15

A Brief History of Marriage

Below is an animated mapping of marriage equality over time. Dates are based on when marriage equality became law and reach res judicata.

Enjoy!

State	Date	Population	Percent	% of America to Date
Massachusetts	5/17/04	6,745,408	1.98	1.98
Connecticut	11/12/08	3,596,677	1.05	3.03
Iowa	4/27/09	3,107,126	0.91	3.94
Vermont	9/1/09	626,562	0.18	4.13
New Hampshire	1/1/10	1,326,813	0.39	4.51
District of Columbia	3/9/10	658,893	0.19	4.71
New York	7/24/11	19,746,227	5.79	10.49
Washington	12/6/12	7,061,530	2.07	12.56
Maine	12/29/12	1,330,089	0.39	12.95
Maryland	1/1/13	5,976,407	1.75	14.71
California	6/28/13	38,802,500	11.37	26.08
Delaware	7/1/13	935,614	0.27	26.35
Minnesota	8/1/13	5,457,173	1.60	27.95
Rhode Island	8/1/13	1,055,173	0.31	28.26
New Jersey	10/21/13	8,938,175	2.62	30.88
Hawaii	12/2/13	1,419,561	0.42	31.30
New Mexico	12/19/13	2,085,572	0.61	31.91
Oregon	5/19/14	3,970,239	1.16	33.07
Pennsylvania	5/20/14	12,787,209	3.75	36.82
Illinois	6/1/14	12,880,580	3.78	40.59
Indiana	10/6/14	6,596,855	1.93	42.53
Oklahoma	10/6/14	3,878,051	1.14	43.67
Utah	10/6/14	2,942,902	0.86	44.53
Virginia	10/6/14	8,326,289	2.44	46.97
Wisconsin	10/6/14	5,757,564	1.69	48.66
Colorado	10/7/14	5,355,866	1.57	50.23
Nevada	10/9/14	2,839,099	0.83	51.06
West Virginia	10/9/14	1,850,326	0.54	51.60
North Carolina	10/10/14	9,943,964	2.91	54.51
Idaho	10/15/14	1,634,464	0.48	54.99
Alaska	10/17/14	736,732	0.22	55.21
Arizona	10/17/14	6,731,484	1.97	57.18
Wyoming	10/21/14	584,153	0.17	57.35
Montana	11/19/14	1,023,579	0.30	57.65
South Carolina	11/20/14	4,832,482	1.42	59.07
Florida	1/6/15	19,893,297	5.83	64.90
United States	6/26/15	349,446,072	100	100.00

Liam '15

History of Marriage Equality

UPDATE:

***Due to the inexplicable intervention of the Supreme Court late last night, marriage equality has been delayed in Kansas. I have updated .gif to reflect the accuracy of the history.***

I put together this .gif file based on the date when marriage equality reached some sort of res judicata, and people were able to actually get married in those states.

A brief history of marriage 2004-2014

Miles to go and all that Jizz Jazz. Texas and Arkansas are due soon, and Montana and South Carolina have no excuse to deny marriage equality a single day longer.

All that is left of interest is what the Supreme Court will do with the 6th Circuit, since they clearly did done fuck up. Remand it to the 6th en banc, reverse without comment? I dont know.

I probably won't go through the decision because of the possibility of an anger seizure from the stupidity.


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

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. 

Last Year Today...

On March 27, 2013 the United States Supreme Court heard the oral arguments for United States v. Windsor which went on to strike down portions of the Defense of Marriage Act. So today, in honor of precedent I am celebrating (on a work day. Sacre tabarnak!) with a quick refresher of the details.

Ironically, Scalia provided the "so called Homosexual Agenda" (dun-duh dah!) a pathway for future judicial victories by writing dicta in his dissent:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. As I have said, the real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by "`bare ... desire to harm'" couples in same-sex marriages. Supra, at 2691. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today's opinion ante, at 2694

Thanks! I'm guessing Scalia popped an anger boner when he saw his quote magically appear in Kitchen v. Herbert:

The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law. 

Of course Utah wasn't the only jurisdiction to recognize marriage equality since last year.

Marriage After Windsor

I'm out of time. So just imagine that there is something more clever in the map... like sloppy gay sex scenes superimposed in the background.

Since Windsor, there have been legislative victories in the following States:

Rhode Island

Delaware

Minnesota

New Jersey

Illinois
Hawaii

More importantly court victories in these States:

California

Utah

New Mexico

Oklahoma 

Texas
Virginia

Kentucky

Michigan

And more to come...  But as for me, it's now time for beer then bed.

Liam '14

Our Inheritance

I have inherited a shared history that does not come from my mother or my father. It is a rich culture with a devastating history of genocide, discrimination, and an undying animus aimed against it.  If evolution is descent with modification, gay history is more similar to Prokaryotic Horizontal Gene Transfer. It is not a history taught by parents to gaylings but one that is acquired later through life, either by discussion or literacy or life experience.

It is an understanding that gay men of certain age have lost nearly all of their friends to a virus. It’s realizing that governments have and will continue to round up people like myself and executing them in cruel and humiliating ways. It’s understanding the struggle just simply to avoid being arrested by the police for simply existing. It’s knowing that simply existing is a political statement.

It’s sitting down and devouring Christopher and His Kind. It’s pretending you’re dating Frank O’Hara every time you crack open Meditation’s in an Emergency. It’s empathy for men similar to yourself and the desire to learn about them. It’s wondering why same-sex marriage is still not permit in many states.

It’s in this vein of anaphora that I found the cases germane to Perry v. Hollingsworth and United States v. Windsor.

Perhaps one of the most famous legal cases in LGBT history is Baker v. Nelson. Claire Bowes with the BBC wrote a wonderful piece describing the background of the case. Here is a brief background into the case:

Going public about your sexual orientation could cost you your home, your job and your family.

Baker and McConnell didn't fit the stereotype. Both in their late 20s - clean cut and with short, neat hair - Baker was a law student and McConnell a librarian. They'd been together for four years when they first applied for a marriage licence in 1970.

This was rejected - on the grounds that they were both men. But the couple decided to fight. They appealed, and kept on appealing until the case reached the US Supreme Court. It was the first time the court had been asked to rule on gay marriage - but it refused to hear the case "for want of a substantial federal question".

http://www.bbc.com/news/magazine-23159390

Read the rest of the article. Here is how the background is described by J. Peterson writing for the Minnesota State Supreme Court in Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971):

Petitioners, Richard John Baker and James Michael McConnell, both adult male persons, made application to respondent, Gerald R. Nelson, clerk of Hennepin County District Court, for a marriage license, pursuant to Minn.St. 517.08. Respondent declined to issue the license on the sole ground that petitioners were of the same sex, it being undisputed that there were otherwise no statutory impediments to a heterosexual marriage by either petitioner.

The trial court, quashing an alternative writ of mandamus, ruled that respondent was not required to issue a marriage license to petitioners and specifically directed that a marriage license not be issued to them. This appeal is from those orders. We affirm.

While the Baker case is an interesting read, I feel like it has been discussed and analyzed and dissected so many times that I cannot add much to it.  I have posted a copy of the Minnesota SupremeCourt decision on my website. It is actually a short document that is fairly easy to understand without much legal reasoning. Most of the decision is quite familiar. To me it is frustrating but not overly offensive in tone.

If I ever write on Baker again, it will probably be more about how the US Supreme Court denied certiorari, and how the right wing lost the legal battle by campaigning for anti-gay state amendments.    

What I am more interested is in the companion case.

McConnell v.Anderson, 451 F.2d 193, 196 (8th Cir. 1971)

Jack Baker’s husband, Michael McConnell, was scheduled to become a librarian for the University of Minnesota. Then he had the audacity to get married… to a man… I mean can you imagine what temerity and political grandstandingness it takes to be an outspoken radical by getting married to a consenting human being… I mean seriously, the balls it takes, and did Mr. McConnell just think the University would sit there and allow one of its soon to be employees to get married. I mean for fuck sake who gets married besides communist radicals? So they shit-canned his ass just like what any Good Christian Institute would do, right. Because there’s nothing that’ll butch up a limped wristed Nancy quite like taking away any means of feeding themselves.

All this joking around has inadvertently made me physically angry about this case and the severe injustice of it all. I know that it happened 40 years ago and everything worked out for Mr. McConnell and Mr. Baker but still.  I’m going to go drink a beer and come back when I don’t want to anger-puke anymore over the background of the case. I mean for fuck sake, getting fired over getting married uggh what the verdammtes Arschloch… du  Arschbackengesicht… idoitische… blöder Scheißkerl.. kannst mich im Goethe lecken.

Ok. back. sorry.

The U.S. 8^th Circuit Court of Appeals decide McConnell v. Anderson on October 18, 1971 and is penned by Judge Stephenson.

In addition to the allegations above, his complaint asserted that he was a homosexual and that the Board's resolution not to approve his employment application was premised on the fact of his homosexuality and upon his desire, as exemplified by the marriage license incident, specifically to publicly profess his "earnest" belief that homosexuals are entitled to privileges equal to those afforded heterosexuals.

Umm.. aren't we though. Entitlement to privileges isn't a bad thing; it’s kinda what America is centered around; that is freedom. I don’t know why there has to be a use of scare quotes here with his earnest belief. And furthermore, if you are trying to say UMN acted properly and in accordance to the law, shouldn't the Court be saying McConnell wrongly believes that homosexuals are entitled to fewer privileges. Because the way it is stated, it seems that the Court is suggesting that gays are entitled to fewer privileges and so what. It’s not like we have a 14^th amendment or an Article IV or anything. 

It suffices merely to stress, by way of summary, that McConnell apparently is well-educated and otherwise able, possessing both an academic degree and a master's degree;

Well this is a hot way to start off. Mr. McConnell is well-educated. That is a fact. It is not subjective. It is demonstrated by his master’s degree.The use of apparently is just a teenesy bit offensive in this circumstance.

McConnell and a friend referred to in the record as "Jack Baker" encountered Dr. Hopp and informed him of their intention to obtain a license to marry; that during this conversation Dr. Hopp expressed concern that such an occurrence might well jeopardize favorable consideration of McConnell's employment application; that about three hours later on the same day, McConnell and Jack Baker appeared at the Hennepin County Clerk's office and made formal application for the license;

Well, I for one am glad that you cleared up how Mr. Baker and Mr. McConnell are associated. There is nothing condescending or douchey about calling a person’s husband just a “Friend.” Secondly, McConnell was a librarian, not a stripper at some Podunk nudy-bar. Getting married is his prerogative. Well according to Loving v. Virginia, 388 U.S. 1 (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the `basic civil rights of man,' fundamental to our very existence and survival.” It would appear under this logic that denial of employment from a State Actor would be arbitrary and capricious. But what did the Warren Court know about the Constitution.

It is McConnell's position that the Board's decision not to approve his employment application reflects "a clear example of the unreasoning prejudice and revulsion some people feel when confronted by a homosexual." That being so, he argues that the Board's action was arbitrary and capricious and thus violative of his constitutional rights. We do not agree.

Thanks asshole. Would you care to elaborate on how the Board of Asshats Regents’ decision wasn't based on discrimination:

It is, instead, a case in which something more than remunerative employment is sought; a case in which the applicant seeks employment on his own terms; a case in which the prospective employee demands, as shown both by the allegations of the complaint and by the marriage license incident as well, the right to pursue an activist role in implementing his unconventional ideas concerning the societal status to be accorded homosexuals and, thereby, to foist tacit approval of this socially repugnant concept upon his employer, who is, in this instance, an institution of higher learning.

Once again fired for getting married. Apparently getting married is socially repugnant… who knew. Also how was Mr. McConnell seeking employment on his own terms? What a fucking asshole, what happened did Judge Stephenson forget to up his Klan membership or something so he had to compensate. I have poured through many cases, but few have dripped so deeply with contempt and bigotry.

We know of no constitutional fiat or binding principle of decisional law which requires an employer to accede to such extravagant demands.[8] We are therefore unable fairly to categorize the Board's action here as arbitrary, unreasonable or capricious.

Once again man gets married. Man gets fired for getting married. How is that an extravagant demand? After reading this case, I think I may have been transported to an alternate dimension. I think it’s call the Planet of the Douchebags. It’s an upside down world where Douchebags rule men.

Anyway, I want to say congratulations to Mr. Baker and Mr. McConnell. It only took them 40 years to become the first legally married gay couple in America.

Liam '14