QUEER QUOTE: 8 U.S. States Have Explicitly Anti-Gay Laws

Yale Law Professors Bill Eskridge and Ian Ayres published an editorial today in the Washington Post which compares the official homophobic public policy of Russia with the official homophobia of multiple states in our own country.

Eight U.S. states, and several cities and counties, have some version of what we call “no promo homo” provisions. Before the United States condemns the Russian statute’s infringement of free speech and academic freedom, it should recognize that our own republican forms of government have repeatedly given rise to analogous restrictions. 

It is no coincidence that these examples focus on what must and must not be said to children. An explanatory note accompanying the 2013 Russian legislation makes clear that the statute seeks to protect children “from the factors that negatively affect their physical, intellectual, mental, spiritual, and moral development.” Proponents of the U.S. statutes have offered similar justification. And, like Russian President Vladimir Putin this month, the U.S. laws warn gay people and sympathizers to “leave kids alone, please.” 

The underlying ideology of these statutes is the same: Everybody should be heterosexual, and homosexuality is per se bad. This ideology has never rested on any kind of evidence that homosexuality is a bad “choice” that the state ought to discourage. The ideology is a prejudice-laden legacy of a fading era. (In fact, the strategy is daffy: Even if homosexuality were a bad lifestyle choice, state laws are not an effective way to head off such a choice.

The authors include excerpts from the homophobic legislation they are referring to:

“Materials adopted by a local school board . . . shall . . . comply with state law and state board rules . . . prohibiting instruction . . . in the advocacy of homosexuality.” 

“Propaganda of homosexualism among minors is punishable by an administrative fine.” 

“No district shall include in its course of study instruction which: 1. Promotes a homosexual life-style. 2. Portrays homosexuality as a positive alternative life-style. 3. Suggests that some methods of sex are safe methods of homosexual sex.” 

“[I]nstruction relating to sexual education or sexually transmitted diseases should include . . . emphasis, provided in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense.”

 The second of these is from the Russian law that went into effect last year after President Putin's signature, the others are from actual laws in effect in Utah, Alabama and Texas.

If discrimination on the basis of sexual orientation must receive heightened scrutiny then it is hard to believe these kinds of laws can survive any kind of judicial review.

READ: My Fave Law Profs Opine On Sup Ct Actions

Reader of this blog may know that I am familiar with numerous openly LGBT law professors. Some of my favorites are NYU Law Professor Kenji Yoshino, Georgetown Law Professor Nan Hunter and Yale Law Professor Bill Eskridge.

Professor Eskridge and my friend Hans Johnson published a commentary about the Supreme Court's actions to take the Proposition 8 case Hollingsworth v Perry and the DOMA case U.S. v Windsor on ScotusBlog:

So what should the Supreme Court do in Windsor and Perry? Surely, the Court ought not uphold DOMA, a law that disparages LGBT citizens and that creates needless expense and confusion among those administering federal law. Nor should the Court uphold Proposition 8, which entrenches second-class citizenship for LGBT persons and couples in state law. Supreme Court opinions upholding DOMA and Proposition 8 would be blunders right down there with Korematsu v. United States (upholding the internment of Japanese-American citizens) and Bowers v. Hardwick (upholding a state law criminalizing consensual sodomy).

The Court has preserved for itself other options for handling these same-sex marriage cases, however.  In the order taking review in both Windsor and Perry, the Court pointedly expanded the issues for review to include questions about the constitutional standing for the intervenors supporting DOMA in Windsor and Proposition 8 in Perry. The Court is more likely to dismiss the appeal in Perry than the appeal in Windsor on this procedural ground, but we have no prediction as to how likely it is that Perry will turn on that issue.

[...]

As it did concerning marriage equality for different-race couples, the Supreme Court should move slowly but deliberately toward marriage equality for same-sex couples. If constitutional equality has any bite today, the Court ought to affirm the Second Circuit in Windsor, invalidating DOMA’s central provision, based on the closer-than-usual scrutiny outlined by the First Circuit.  If the Justices find constitutional standing for the initiative’s nongovernmental supporters in Perry, the Court ought to affirm the Ninth Circuit, invalidating California’s Proposition 8 based on the rational basis review conducted by the lower court.

Addtionally, Profesor Yoshino publishes his thoughts on the Proposition 8 case which he had previously presented at the UCLA Law School in April 2012:

The first premise is that the Court will strike down DOMA. I agree. DOMA represents an intrusion of federal law into the traditional state domain of family law.  As the lower courts have pointed out through various formulations, invalidating DOMA would represent a triumph for state sovereignty as well as for gay rights. Justices on the right tend to favor state power (relative to federal power); Justices on the left tend to favor gay rights. The Justice in the middle — Justice Kennedy — has historically favored both.

The second premise is that the Court will wish to proceed incrementally — that it will not, in one Term, strike down DOMA and flip the forty-one states that do not currently recognize same-sex marriage. Here, too, I agree. In 1967, when the Court decided Loving v. Virginia, it only had to invalidate the laws of sixteen states. In general, the Court does not like to get too far in front of national consensus.

It might seem to follow from these two premises that the Court will split the baby between the cases. But the error lies in thinking that the Perry Court must require marriage in all fifty states or none. In fact, the Court can more narrowly invalidate Prop. 8 in at least three ways.

[...] 

The procedural one-state solution 

Under the procedural one-state solution, the Court would find that the proponents of Prop. 8 lack Article III standing to bring suit.

The substantive one-state solution 

The Court could also adopt a substantive one-state solution, which was the rule adopted by the Ninth Circuit panel. The Ninth Circuit held that under the Equal Protection Clause, a state could not grant an entitlement and then take it away without a legitimate reason. 

The substantive eight-state solution 

Yet another breakpoint on the spectrum would focus on the lack of justification for giving same-sex couples all the rights and responsibilities of marriage but withholding the word “marriage” from them. This resolution differs from the Ninth Circuit panel’s ruling because it removes any issue of retrogression from the analysis. What is important is not that California went all the way to same-sex marriage and then retreated, but rather that California went all the way to “everything but marriage.” Once it did so, it reached the point of no return. Currently, seven states besides California would be affected by such a ruling: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

I am sure there will be volumes and volumes of commentary written on the certiorari decisions in Perry and Windsor but I doubt you will read more insightful or perspicacious analysis than these written by Yoshino and Eskridge.