California Dreamin’

15 12 2008

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

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

10 12 2008

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

Good:

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

Bad:

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




When consent fails

20 07 2008

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

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





What are the acceptable limits of consent?

17 07 2008

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

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





Humanitarian intervention (still intervention)

1 07 2008

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

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

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

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

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

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





Another reason to celebrate today!

26 06 2008

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





Happy Sodomy Day!

26 06 2008

That’s right, today is the five-year anniversary of the landmark Lawrence v. Texas decision, which declared sodomy laws in the United States unconstitutional.  I remember when the decision came down – I was eighteen at the time, and several of my gay male friends had AIM away messages up that said “CELEBRATING.”

Now that I’m a crusty old law student, I’ve studied the case, and I have two major thoughts about it.  One, as usual, America is too damned slow on the uptake – before this case, if you plotted the countries with sodomy laws still existing on a map, you’d see countries Africa, the Middle East, the Caribbean, Asia… and us.  Now I’m certainly not suggesting that developing nations should be behind the US, or that we’re somehow morally superior – quite the opposite.  Those who think that we’re Nation Numero Uno, ready to depart on a civilising mission to “fix” the rest of the world – uh.  Uh.  Uhhhhh…  No.  We criticise the human rights records of developing nations while at the same time being by far the worst nation in the “Western world” on human rights and international law.  If you aren’t familiar with this stuff, take a look at the major international human rights treaties and see how many the US has signed.  You’d be surprised.  So no, I don’t think it’s at all strange that it took us this long to strike down sodomy laws, more than twenty years after the European Court of Human Rights said that sodomy laws violate an individual’s right to privacy.

My second thought, however, is optimistic.  Justice Kennedy clearly made quite an effort to avoid talking about level of scrutiny or fundamental rights or suspect class or really anything that would give lower courts a clear cue.  But what did he do?  Well, he cited international authority with approval for the first time in a majority opinion, for one.  He also, despite the dicta that this wasn’t to affect laws on marriage, opened up a can of worms.  Maybe LGBT folks don’t explicitly form a suspect class yet.  Maybe they don’t fall explicitly within the fundamental right to marriage that straight people most certainly enjoy.  But there’s an opportunity.  We can say that the Court did take a step in that direction, and if LGBT people have the same rights to conduct their intimate affairs in their bedroom that straight people do, then it’s not much of a leap to say that they also have the same intimate sorts of relationships that straight people do, which often culminate (for them) in marriage.  By being rather vague in terms of legal principles but at the same time making it clear that he was considering both practices and identity of LGBT people in that case, I think Kennedy did something revolutionary, something even (gasp!) rather European – he acknowledged, in some small way, a positive right to autonomy, the right to live one’s life and conduct one’s intimate affairs as the individual sees fit.  By putting these two aspects together he acknowledged that queer people should be protected both in terms of what they do and who they are – that the two are inextricably linked.  He could have simply focused on practices, on sodomy itself, but he didn’t.  He made it bigger than that.  It’s about the real people, in real relationships, who were being hurt by an arcane, stigmatising law.  So good job, JK.  I don’t always agree with you, but I think you took a leap of courage this time.