Legal briefs

Texas Not Yet Safe for Dildos

A Texas appeals court in El Paso, reversing a trial court’s order that had dismissed criminal charges against adult bookstore clerk Ignacio Acosta, ruled on August 31 that a Texas penal law against “promotion of an obscene device” does not violate the United States or Texas Constitutions.

In September 2003, two undercover police officers entered Trixx adult bookstore where they found “various sexual devices” for sale. They asked Acosta, an employee, how to use a “crystal cock vibrator” on display, and he explained to the female officer that it could be used to arouse her to orgasm. The officers purchased the device and ten days later, Acosta was arrested.

Acosta’s lawyer filed a motion to dismiss the complaint, on the grounds that the statute unconstitutionally prevented Texans from enjoying dildo-type devices, which they have a right to do in the privacy of their homes. Based on the 2003 Supreme Court Lawrence v. Texas ruling that threw out sodomy statutes nationwide on privacy grounds, Acosta’s attorney argued that the state had no compelling justification for burdening adults who wish to exercise their privacy rights to use sex toys.

The El Paso County Criminal Court judge agreed with Acosta’s lawyer and dismissed the complaint, but the prosecutor appealed.

Writing for the appeals court, Chief Justice Richard Barajas embraced the narrow view of Lawrence v. Texas taking hold among conservative federal and state judges recently. They emphasize that the Lawrence ruling was a narrow finding that the state could not criminally prosecute two consenting adults for having sex in private. Justice Anthony M. Kennedy, Jr., in his majority opinion for the Supreme Court, carefully set out a list of circumstances not covered by the ruling, including public conduct. Barajas seized upon this, writing that “commercial promotion of sexual device” was such public conduct and therefore not “constitutionally sanctioned.” Accordingly, the Texas court found, the state’s rationale for the statute need only meet a rational basis standard. “It is appropriate for the State to act to protect the social interest in order, morality, and decency by restraining commercial dealing in non-communicative objects designed or marketed for use primarily for the stimulation of human genital organs.” Barajas provided no explanation as to why selling a dildo in an adult bookstore presents any risk to order, morality, or decency.

Anti-Gay Christian Group OK at Illinois College For Now

The law school at Southern Illinois University must restore official recognition to a local chapter of the Christian Legal Society, pending a full trial over whether CLS has a constitutional right to be recognized despite a membership policy that violates the school’s anti-discrimination requirements.

That order came down from a panel of the Seventh Circuit Court of Appeals, based In Chicago, on August 22 by a 2-1 vote. The decision overturned federal district Judge G. Patrick Murphy’s determination in July that CLS was unlikely to win its lawsuit and not seriously prejudiced by temporary loss of official recognition.

CLS was recognized by the law school until it adopted a policy statement that “that officers and members adhere to orthodox Christian beliefs, including the Bible’s prohibition of sexual conduct between persons of the same sex. A person who engages in homosexual conduct or adheres to the viewpoint that homosexual conduct is not sinful would not be permitted to serve as a CLS chapter officer or member,” unless they repented and refrained from such conduct.

Law School Dean Peter C. Alexander informed CLS that its policy ran afoul of the school’s written commitment to “equal employment and education opportunities,” regardless of sexual orientation. The school, Alexander noted, must also comply with civil statute, including Illinois’ gay rights law. When CLS refused to budge, the school revoked its recognition.

The CLS was able to continue meeting on campus, but could not access other resources including a faculty adviser and the campus bulletin boards. CLS claimed a First Amendment right to be a recognized organization, citing the 2000 Supreme Court ruling that the Boy Scouts have a right to exclude gay members and leaders and a 1995 case that allowed organizers of Boston’s St. Patrick’s Day Parade to impose a similar ban. In both cases, the bans were justified as part of the groups’ right to “private expressive association,” protected by the First Amendment.

The majority of the federal appellate panel disagreed with Murphy’s July findings that CLS was unlikely to win on its claims and that it need not be given temporary relief pending trial. In an unsigned opinion, the court found that if First Amendment rights are at stake, any deprivation of such rights is irreparable. Further, the majority thought that the Boy Scouts and St. Patrick’s Day Parade decisions support CLS’ argument that its expressive association rights are violated by requiring it to accept gay members in order to win official recognition.

In her dissent, Judge Diane Wood noted that, ironically, the CLS case outcome was likely to be influenced by the outcome of the Supreme Court consideration, in December, of Rumsfeld v. FAIR, in which the 3rd Circuit Court of Appeals in Philadelphia ruled that a law school is an expressive association and as such has a First Amendment right to bar from its facilities military recruiters because of the Don’t Ask, Don’t Tell policy.

Lutheran School Immune From Minnesota Gay Rights Law

At Lutheran High School of Greater Minneapolis, they go beyond “don’t ask, don’t tell” to “don’t be.” On August 23, a unanimous Minnesota appellate panel upheld the school’s right to discharge a closeted married man as a teacher solely because he is gay, even though he made no public statements about his sexuality and claims to be sexually abstinent.

Although the discharged teacher filed his legal action as “John FR Doe” to protect his anonymity, since he is not “openly gay,” a lawyer for the Lutheran Church-Missouri Synod, a co-defendant in the case, revealed his name to the St. Paul Pioneer Press, which used it in its account of the case on August 24. Out of respect for his privacy, especially in light of the discrimination the man has suffered, Gay City News has made the unusual decision not to print his name.

The court’s opinion by Presiding Judge Robert H. Schumacher noted that Doe was ordained a pastor in the Lutheran Church 1976, was campus pastor at the school from then until 1979, and returned in 1993. He was most recently chairman of the theology department, with teaching, chapel, and student counseling duties.

Doe is married and has two daughters and informed his family and in-laws in 1998 that he is gay. His wife’s brother informed his bishop and the information eventually made its way to Doe’s supervisor, Dr. Lane Seitz. Seitz contacted Doe, who acknowledged that he is gay, but said he was not in a “gay relationship” and did not live a “gay lifestyle.” Seitz and the school principal agreed that Doe could continue in his job, in part due to the difficulty of replacing him, but he was told he must remain “closeted.” A replacement was soon found, however, and he was forced out, despite the fact that he had honored his pledge to stay closeted.

Doe sued the school and the synod under the Minnesota Human Rights Act, which forbids sexual orientation discrimination but allows religious employers to follow their doctrinal requirements in personnel decisions. Doe argued that because he was celibate, not living in a gay relationship, and did not public about his sexual orientation, and because he was a “secular teacher” not engaged religious instruction, his discrimination claim could be determined without investigating matters of church doctrine.

The Hennepin County District Court rejected that argument, and so did the Court of Appeals.

“We must conclude that this type of searching inquiry intrudes into church doctrine and church administrative matters and engenders a prohibited relationship between the church and the judiciary,” Judge Schumacher wrote. Noting that Doe’s job was permeated with religious duties, the court noted “the state may not interfere with dismissals of clergy.” Doe’s argument that the school and church never “incorporated the religious belief that homosexuality is a sin into their employment policies,” was also rejected.

Earlier state Supreme Court rulings in Minnesota allowed a church to fire a gay music director and the Billy Graham Evangelistic Association to discharge a mailroom employee discovered to be gay.

Anti-Gay T-Shirts Don’t Break School Dress Code

A federal judge in southern Ohio has ruled that a rural school district violated the rights of a seventh-grade student when it prohibited him from wearing a T-shirt with an anti-gay, anti-Muslim, and anti-abortion slogan. Judge George S. Smith found that the First Amendment protects James Nixon’s right to wear the controversial T-shirt at Sheridan Middle School in Thornville, Ohio.

Nixon acquired the shirt at a church camp in the summer of 2004. Black, with white lettering, the shirt states on the front: “INTOLERANT. Jesus said… I am the way, the truth and the life. John 14:6.” The punch line is on the back of the shirt: “Homosexuality is a sin! Islam is a lie! Abortion is murder! Some issues are just black and white!”

Young Nixon wore the shirt to school the first day last fall, and was threatened with expulsion if he refused to take it off. The school superintendent backed up his staff at the school and Nixon’s father supported his son. The Sheridan student handbook bars disruptive clothing, and there was evidence of the policy being enforced in the past regarding T-shirt slogans and pictures.

Nixon was represented by the American Liberties Institute of Orlando, Florida, one of the many public-interest law firms that battle “political correctness” in American society, usually on behalf of religious conservatives. Nixon argued that his T-shirt makes political statements protected by the First Amendment at his school, so long as there is no actual disruption. He argued that the possibility of offending gay or Muslim students or students who had undergone abortions was not sufficient justification to forbid his freedom of speech.

The school argued that it was entitled to take action to maintain an appropriate environment for educating all the students by suppressing speech that would be offensive to some and might lead to disruption.

Judge Smith, appointed to the court by President Ronald Reagan, sided with Nixon, prefacing his findings by referring to the Columbine High School tragedy and the need to avoid disruption and provocation in order to protect students. But in striking an appropriate balance, Smith found that judicial precedents lined up in Nixon’s favor.

In 2001, the Sixth Circuit Court of Appeals in Cincinnati, to which this case would be appealed, found that school administrators could ban a Marilyn Manson T-shirt because Manson’s lyrics discuss suicide, murder, and drugs and the T-shirt “can reasonably be considered a communication agreeing with the views associated with the singer.” But Smith rejected the argument that the same rationale would support suppressing Nixon’s T-shirt. Smith found more compelling the Supreme Court’s Vietnam War-era ruling in Tinker v. Des Moines School District, upholding the right of high school students to wear black armbands to protest U.S. policy in Vietnam, so long as the political dissent was peaceful and did not disrupt the school’s educational program or cause harm to particular students.

The fact that some students “could find the shirt’s message offensive, falls well short of the Tinker standard for reasonably anticipating a disruption of school activities,” Smith wrote.

Smith did not note that the Tinker ruling did give administrators greater leeway the younger the students affected are—in this case seventh graders.

Noting that Nixon was not seeking monetary damages, just vindication of his expressive rights, Smith awarded him a symbolic one dollar in damages.

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