Leonard Link

Leonard Bernstein's Shostakovich Rehearsal 1988 - a Blast from the Past

EuroArts has licensed from Unitel and released on a commercially distributed DVD a film of Leonard Bernstein rehearsing a youth orchestra at the Schleswig-Holstein Music Festival in 1988, the subject matter being Shostakovich's 1st Symphony.  In addition to about 40 minutes of rehearsal excerpts, there is a complete concert performance of the symphony in formal dress.

Watching this is an exciting and frustrating experience.  Exciting because the interaction of Bernstein and the young musicians, who all appear to be in the late teens to early twenties age range, is electric, and many of the young soloists come across as engaging personalities in their own right.  In addition, even though Bernstein became a more eccentric conductor towards the end of his career -- and this is in 1988, very close to the end, as he retired and then rather quickly passed away in 1990 -- he is full of fascinating insights about the music.  I thought I knew this symphony rather well, but I had never been made so aware of the Wagnerian aspects of the last two movements.  Indeed, in Bernstein's conception, the Lento third movement begins as a parody of Wagner and slowly morphs into more of a homage, and the big moment in the 4th moment evokes the awakening of Brunnhilde in the last act of Siegfried from The Ring of the Nibelungen.  Whether this becomes more apparent in Bernstein's performance than it would be in most others is an interesting question.  He tended to exaggerate the points in the music that he wanted to force into the audience's consciousness, so perhaps he overplays the Wagnerian references -- just as his Ives performances tend to overplay the Americana quotes.  But it is never less than enthralling.

But frustrating.  40 minutes of snippets from the rehearsals isn't really enough, and the rehearsals are so instructive, both in the art of performance generally and in the more specific art of conducting, that one really wants more, also because these young musicians are so enjoyable to watch that you want to experience more of them grappling with the difficulties and achieving that breakthrough into a professionally sounding, fully-engaged result.

What is also frustrating, of course, is that these rehearsals and the concert took place 20 years ago, in the summer of 1988, and today all these youngsters are 20 years older and what became of them.  Some clearly had the talent to make major careers, but nowhere on the disk or in the accompanying booklet are we told who they are.  The musicians are completely anonymous.  I want to know what happened to that young solo oboe player, the skinny boy with the flashing dark eyes and eager manner who did such a masterful job with the big oboe solo at the start of the 3rd movement, even before Bernstein started fussing with the phrasing and breathing and prodded him to an even more artistic result.  Where is he now?  Did he make that big career?  Similarly for the principal horn player, with young movie star handsomeness and assuredness and the slight smile playing around his eyes, or the somewhat shy principal clarinetist, who draws from Bernstein the today-un-p.c. "atta girl" when she nails her big solo at the beginning of the second movement.  And the principal cellist, who has a strange air of reserve for one so young but plays with such refinement in his big second movement and fourth movement solo passages... what happened to him?  The concertmaster also sounds excellent, but because of the peculiarly limited camera set-up that Unitel used, we never really see his face until the end of the concert, when we get glimpses as Bernstein congratulates the section leaders during the applause.  They seem to have shot both the rehearsals and the concert with a very limited camera set-up on the left side of the stage (and one camera in a balcony for altogether too few panoramic shots).  The concertmaster is pretty much ignored during the rehearsal, when his big solos are not included.  During the concert, because the nearest camera is placed behind him, he is seen from the rear while playing his solos, over the shoulder as it was, and we don't see his face.  (It's almost as if, compared to the other young soloists, he was judged insufficiently photogenic to make the effort - but then in the closing credits we see that he looks absolutely charming.)  Other players also make an impact, but less because they are less the focus of attention - the talented women playing flute and bassoon, the tympani soloist, the principal trumpet....

At any rate, this is a very exciting DVD, even when the kids falter at times in the symphony.  (The beginning of the 2nd movement is a bit of a scramble and it is all Bernstein can do to get them together in the opening minutes....)  But at the end, even though you don't know any of these kids, anything about their backgrounds, who they are, or who they would become as artists and musicians, you get this odd feeling of pride at their accomplishment in getting through the symphony and even making music of it most of the time, and you envy them the opportunity to spend a few days with Bernstein in his most avuncular, engaged mood....  It's almost like spying on a love affair between 100 teenagers and their grandpa....

Intersex Legal Issues Discussion at Cardozo Law School

I was pleased to participate as a panelist yesterday afternoon at a program at Cardozo Law School (Yeshiva University) sponsored by the school's LGBT student group, OUTLaws, to discuss the intersex phenomenon and the legal and ethical issues it raises.  Intersex, for those unfamiliar, is a term that has been used to cover a broad range of physical conditions arising from genetic or biological anomalies in the reproductive process, sometimes resulting in the birth of individuals with genitals and sexual organs making sexual identity difficulty to determine at birth, sometimes resulting in various anomalies later in life.  With the emergence of plastic surgery and hormone treatments as available tools for health care providers by mid-20th century, a practice emerged among gynecologists and pediatricians of treating the birth of an "intersex" infant as a medical and social emergency calling for swift intervention to direct the infant's physical and social development firmly in the direction of female (in most cases) or male (in few cases), even though it might be difficult - if not impossible - to make a definitive determination at birth as to the "real" sex of the infant.  Within a generation of this emerging practice, young intersex adults began to coalesce in a movement to oppose what had become the standard practice, on the ground that identity mistakes had been made in some cases, and in many the early surgical intervention had adverse consequences for the individual, sometimes including severe compromise or even loss of sexual and in some cases reproductive function, as well as severe psychological consequences.  Emerging studies seem to support the content that with some exceptions there is no real medical emergency when an intersex infant is born, and in most cases it would be prudent to wait until the child has matured to the point of being able to articulate his or her sexual identity before engaging in any elective surgery or hormone treatments and to participate in and give informed consent to any such procedures that are undertaken.  (This is in contrast to the practice now of some health care practitioners to automatically perform such procedures on the newborn infant, sometimes without disclosing the nature of the "problem" to parents, and in some cases "conspiring" with the parents to conceal the nature of the problem from the child, resulting in some incredibly traumatic adolescent experiences with tragic results.)

Much of this is, of course, heavily contested and debated, and there are genuine clashes of legal doctrine involved.

The panel included Prof. William Summers of Yale, a doctor and philosopher with a particular interest in sexuality topics, myself, Professor Suzanne Goldberg from Columbia Law School (where she directs the Sexuality Law Clinic) and formerly a staff attorney at Lambda Legal, and Josephine Johnston, a bioethicist at The Hastings Center.  Professor Ed Stein of Cardozo moderated the program.  Prof. Summer presented a medical overview of the intersex phenomenon, I spoke about the legal-human rights issues, with a particular emphasis on how the legal reasoning of the US Supreme Court in Lawrence v. Texas (2003) presents a spring board to considering constitutional autonomy claims for intersexual individuals to be able to assert control over the determination of their sexual identity and resultant medical interventions, Prof. Goldberg focused her remarks on the legal issues raised by the constitutional recognition of parental rights and the potential clash of rights with an intersexual infant's autonomy rights, and Ms. Johnston, of course, addressed the bioethical issues for medical practitioners.   We had a small but enthusiastic group of Cardozo students attending the program and asking really penetrating questions at the end.

As I usually do for such speaking engagements, I prepared a bibliography of law journal articles on the subject for distribution to those in attendance (and to help me in locating useful articles to read in preparation for my talk).  I would be happy to share a copy of the bibliography with anybody who might be interested.  Just drop me an email at aleonard@nyls.edu, and I'll shoot out a copy in pdf format.  The articles I found most helpful in framing my talk on the human rights issues were those by Chai Feldblum, Karen Gurney (most recently in the American Journal of Law and Medicine), and articles from a 2005 symposium issue of the Cardozo Journal of Law & Gender.

Court Upholds Exclusion of NYC Comptroller’s Gay Rights Resolution From Corporate Proxy Statements

U.S. District Judge Gray H. Miller (S.D. Texas) ruled on April 22 that a gay rights shareholder proposal submitted to Apache Corporation by New York City Comptroller William C. Thompson, Jr., the chief trustee of the pension plans for most NYC employees, did not have to be included with the proxy statements Apache mails to its shareholders in advance of corporate meetings. Apache Corporation v. New York City Employees’ Retirement System, 2008 Westlaw 1821728. Thompson’s proposal sought to commit the corporation to a wide range of anti-discrimination principles involving sexual orientation and gender identity.

Thompson’s predecessors as NYC Comptroller had pioneered the strategy of using the office’s weight as manager of the huge city pension funds to influence corporate policies. Under federal securities laws, shareholders may submit proposals to be voted on at a corporation’s annual meeting, requesting the elected directors of the corporation to adopt corporate policies. Securities and Exchange Commmission (SEC) regulations define the scope of resolutions that corporations are obliged to present to their shareholders in the proxy statements they mail out to announce corporate meetings and to solicit shareholder authorizations to vote their shares at the meetings.

The SEC holds that shareholder resolutions need not be included in proxy statements and put to a vote at meetings if they seek to "micro-manage" the day to day operation of the company, or to express judgments on matters of routine corporate governance, but shareholders have a right to attempt to influence the corporation’s approach to issues of social policy. An attempt by the NYC Comptroller and other institutional investors to influence Cracker Barrel restaurants to reverse their anti-gay employment policies during the 1990s led to a confrontation with the SEC over the right of shareholders to influence corporate employment policies, which was resolved in favor of requiring corporations to include such proposals in their proxy statements.

Thompson’s new dispute with Apache, a Texas-based energy company, concerns a more wide-ranging version of the earlier gay rights resolutions. The proposal calls upon the corporation’s management to "implement equal employment opportunity policies" based on a list of ten principles "prohibiting discrimination based on sexual orientation and gender identity." The ten principles include the standard employment discrimination concerns, including employee benefits, but also go beyond that to require corporate diversity and sensitivity programs, recognition of employee special interest groups, elimination of negative stereotypes from corporate advertising, marketing, sales of goods and services, and charitable contributions. The list is presented as an example of various things that major corporations have done as part of their efforts to attract and retained LGBT employees.

Thompson submitted the proposal to Apache in October 2007, in time to be considered for the proxy mailing due to go out at the end of March. Apache did not want to include the proposal. Under SEC rules, a corporation that does not want to include a shareholder proposal is required to request a "no-action letter" from the SEC’s Division of Corporate Finance. The Division examines the proposal and determines whether it must be included in the proxy mailing. In this case, the Division quickly issued a "no-action letter," advising Apache that Division staff would recommend against SEC enforcement action if Apache omitted the proposal, explaining, "There appears to be some basis for your view that Apache may exclude the proposal. We note in particular that some of the principles relate to Apache’s ordinary business operations."

Apache then mailed out its proxy statement, omitting the Thompson proposal, on March 31. On April 8, Apache filed suit in the federal district court in Houston as a preemptive strategy, seeking a declaration from the court that Apache had not violated SEC rules. Two days later, Thompson filed suit in federal district court in Manhattan, seeking the opposite ruling, but Judge Colleen McMahon, noting Apache’s prior filing, stayed the New York lawsuit, giving Judge Gray H. Miller in Houston priority to rule on the case.

Miller held a quick hearing and issued his ruling on April 22, supporting Apache. "Undoubtedly, advertising and marketing, sale of goods and services, and charitable contributions are ordinary business matters," Miller wrote. "Yet, the defendants, through the Proposal, seek to have Apache implement equal employment opportunity policies which incorporate anti-discrimination directives based on sexual orientation and gender identity into such activities."

To consider these "principles" on Thompson’s list as "implicating employment discrimination would be a far stretch," Miller opined. "Instead, principles seven through ten aim at discrimination in Apache’s business conduct as it relates to advertising, marketing, sales, and charitable contributions. Therefore, because these principles do not implicate the social policy underlying the Proposal, and because the Proposal must be read with all of its parts, the Proposal is properly excludable."

Hedging his bets against a possible reversal on appeal, Miller also analyzed the Proposal under the alternative basis for exclusion: that a shareholder proposal would inappropriately attempt to micro-manage the business. "Shareholders, as a group, are not sufficiently involved in the day-to-day operations of Apache’s business to fully appreciate its complex nature," he wrote. "For example, shareholders, as a group, are not positioned to make informed judgments as to the propriety of certain sales and purchases. Similarly, the complex implications stemming from the proposed principle forbidding discrimination in the sale of goods and services based on sexual orientation or gender identity preclude provident judgment on the part of the shareholders. It would be imprudent to effectively cede control over such day-to-day decisions, traditionally within the purview of a company’s executives and officers, to the shareholders."

"The aforementioned concerns are enhanced by the principle’s implicit requirement that Apache determine whether its customers and suppliers discriminate on the basis of sexual orientation or gender identity. Such an inquiry is impractical and unreasonable, and the determination as to its propriety should properly remain with the company’s management."

Thompson’s communications director, Jeff Simmons, reacted to the ruling by charging that it "flies in the face of common sense and established precedent" and went on to score political points, proclaiming that "Apache has shown by its fierce resistance to the proposal by the New York City Pension Funds that it does not place a priority either on ensuring that all employees feel respected and secure in their workplace or on benefitting from a skilled, diverse workforce."

Simmons did not indicate whether Thompson will seek to appeal the ruling, or attempt to push forward with his own litigation before Judge McMahon in the New York federal court.

Paul Rudnick's "The New Century"

This is actually a collection of four short one-acters which tie in together when characters from the first three, seemingly-disconnected, plays all come together in the fourth.  Paul Rudnick is one of our most talented gay comic writers, and these plays are full of comic zingers.  They don't all score with everybody, but they all score with some and I found myself laughing, very hard at times, at the sheer exuberant silliness of it all, and the real insight behind some of the witty repartee.  The casting is top-of-the-line, including Linda Lavin as the Jewish mother with a sexual diversity convention in her family, Peter Bartlett as an over-the-top old queen, Jayne Houdyshell as mom-of-a-gay-son with a "crafts" fetish, Christy Pusz as a new mom and -- the major eye-candy of the event -- Mike Doyle as the old queen's boy-toy. 

The bare-bones production at Lincoln Center's smaller house - the Mitzi E. Newhouse Theater - was just fine, and the intimacy of the house enhances the impact of the overwrought (deliberately) performances.  I had fun.  You will too.

Important LGBT Humanitarian Project in Iraq

One of the stories  about the aftermath of the removal of the Saddam Hussein regime in Iraq that has not been well covered in the mainstream media has been the impact on LGBT people living in that country.  The Hussein regime was not a Islamist fundamentalist regime, but rather a secular dictatorship, and by most accounts I've heard, LGBT people in the country actually faced a better situation than those in most of the surrounding Islamic nations.  While there were difficulties, cultural problems with families and so forth, there was apparently sufficient space so that many gay people were able to conduct their lives without fear of significant overt oppression by the government or organized social groups.  Whatever the situation might have been, most of those who have reported on conditions since March 2003 have indicated that the situation became drastically worse for many LGBT people after the Hussein regime was removed.

The main reason for this, apparently, is that the authoritarian secular government was not replaced with a competent, democratic entity embracing western values about personal autonomy and sexuality.  Rather, we have the situation in Iraq of numerous factions, many of them embracing fundamentalist Islamic values, each faction seeking to carve out its sphere of power to the exclusion of others.  And we have some religious leaders who, however "moderate" they may appear to western journalists and governments, are inclined to take a "hard line" based on their religious views where homosexuality is concerned.

Thus it is reported that Ayatollah Ali Al-Sistani, viewed at various times with favor by the western press and governments, issued a fatwa in 2005 calling for the identification and slaughter of homosexuals in Iraq.  And that regardless whether they embrace Sunni or Shi'ite brands of Islam, the Islamists in the nation are unremittingly hostile to gay people.  The result is that among the many Iraqis newly living in exile since 2003 are LGBT refugees, some of whom have made their way to western countries, others to neighboring Middle Eastern countries amidst the general masses of Iraqis fleeing their homeland.  And, of course, many LGBT people remain stranded in the country, facing severe threats to their lives.

An association of LGBT Iraqis in exile has accumulated data documenting more than 400 cases of LGBT Iraqis who have been taken by Islamist forces or government forces, detained, in some cases severely injured or killed, and in some cases who have just disappeared from view.  These exiles, with some financial support from human rights activists, established a string of "safe houses" in Iraq where LGBT people who have been unable to leave the country live under "sub rosa" conditions.  From lack of funding, all but two of those houses have had to close, and the remaining two are overcrowded and struggling to meet monthly costs for rent and provisions, as volunteers struggle to keep this humanitarian operation going.

Last week, I attended a program hosted on behalf of the Global Equality Network, a program of the Heartland Alliance for Human Needs & Human Rights, at the offices in NYC of the North Star Fund, a non-profit human rights funder, to acquaint some invited New Yorkers with the situation in Iraq for LGBT people and the efforts being made to provide assistance.  Heartland Alliance, a Chicago-based non-profit, is concerned primarily with LGBT and HIV political asylum issues, providing assistance and representation to LGBT and HIV+ people who manage to find their way to the US and seek protection here as refugees.

The program included viewing some interviews that had been filmed by a Heartland staff member, one with an Iraqi refugee currently managing to survive in Syria, and the other with a London-based Iraqi refugee who is helping to head the effort to provide support to those in Iraq maintaining the safe houses.  They also managed to produce a live telephone link with the man in Syria, who was able to respond to questions about the situation.

It is clear to me that this is a SERIOUS effort that is worth supporting.  I have donated and plan to do so again.  Heartland Alliance is a charitable non-profit which is serving as the umbrella to channel [tax-deductible] US donations to the effort.  (Their website is www.heartlandalliance.org)  Those who wish to send checks can make them to Heartland Alliance and indicate that the donation is for the LGBT Iraq project.  Their snail-mail address is Heartland Alliance, attention Sean Casey, 208 South LaSalle St., Suite 1818, Chicago, IL 60604.  They can be reached at 312-660-1372.  For those in NYC interested in participating in a local committee being set up to organize fund-raising and awareness-raising activities, contact John Robertson, at jgrbklyn@gmail.com.

Irish Court Requires Respect for Lesbian Family

In a matter of first impression, Justice John Hedigan of the High Court of Ireland (a trial court) has ruled in J. McD. and P.L. & B.M., 2007 No. 26M (April 16, 2008), that a lesbian couple and their child conceived through donor insemination enjoy the right of protection for their family life and status, consistent with European human rights law, and that the gay man who donated the sperm to conceive the child should not be awarded guardianship of the child or granted legally compelled access to the child. Judge Hedigan expressed confidence that the child’s mothers would, consistent with their stated intentions, afford the donor some contact with the child voluntarily, as they had used a known sperm donor because they thought it would be preferable for the child to know its biological father at some point.

To preserve confidentiality and simplify his opinion, the Judge discussed the case by assigning letters to the relevant individuals. A is the donor, B the birth mother, C the birth mother’s partner, and D the child, a boy now about two years old.

B, a native of Australia, and C, a native of Ireland, met in the U.K., became a couple, and eventually moved to Ireland. They desired to have a child, and prevailed on a gay male friend to be a sperm donor, but his donations did not lead to pregnancy for B. Then they met A, another gay man, in social circumstances, fixed on him as an alternative likely donor, and ultimately reached an agreement with him modeled on the agreement they had previously concluded with their gay male friend. The written agreement, which was not finally signed by the parties until shortly after B became pregnant, specified, among other things, that A would not be a parent, but would be treated like a "favorite uncle" with respect to the child, that B and C were the child’s legal parents, that the parents were using a known donor because they thought it preferable that the child ultimately know who its biological father was, and that in the event something happened to B and C, A would be entitled to maintain contact with the child and be consulted about the appointment of a guardian. (This last element was added at A’s instigation, and had not been included in the written agreement with B and C’s gay male friend.) After B became pregnant, B and C contracted a civil partnership in the U.K. while maintaining their residence in Ireland.

As soon as the child was born, A began acting in ways inconsistent with the parties’ written agreement, asserting himself in the situation such that B and C concluded he was thinking of himself as a parent and pushing towards parental rights, so they limited his contact. They planned to go to Australia for an extended visit of a year, and in support of those plans arranged to rent out their house, C giving notice at her job and planning to work in Australia. When A learned of these arrangements, he went to court seeking both to compel them to remain in Ireland with the child and to have himself appointed legal guardian of the child with visitation rights. In preliminarily litigation, the court limited B and C’s Australian sojourn to a rather shorter period of a few months, and a court-appointed doctor was commissioned to study the situation and make recommendations. (This preliminary decision involved an appeal to the Supreme Court.)

In the event, the doctor recommended against guardianship for A, as not in the best interest of the child, finding the mothers were excellent parents and that the child had not formed any sort of child-parent bond with A. His forced intrusion into the family constellation was seen by the doctor as a negative prospect for the child. Among other things, the doctor considered that A’s reasons for agreeing to be a sperm donor appeared not to have been well thought through, and that he might lose interest in the child in the long run.

Justice Hedigan confronted many legal questions as to which Irish law did not provide firm answers. He concluded, however, that although as the biological progenitor of the child A had a statutory right to petition for guardianship, the standard for ruling on his petition was "the welfare of the infant as the first and paramount consideration," according to Irish statutes. Furthermore, he found that the European Convention on Human Rights was relevant and that European precedents called for recognizing the relationship of B and C as a family, for which respect was required. Given the doctor’s recommendations, as against the conclusions of an expert put forward by A who had not actually examined B, C or the child and who was speaking totally hypothetically, the paramount interest of the child would not be advanced, concluded the judge, by appointing A as guardian.

While the written agreement that the parties executed shortly after the insemination was not strictly binding as a contract, it was evidence of the intentions with which the parties engaged in the "project." There was some argument over whether A always intended to be a father to the child, or whether his attitude changed during the course of the project, paternal feelings perhaps unexpectedly emerging as the birth drew near, but in either event the court found that his conduct after the child’s birth was contrary to the understanding of the parties and had resulted in a strained relationship between A, B and C, a loss of trust and confidence, such that it would not be in the interest of the child for the court to require A, B and C to remain in the close and frequent contact and interaction that would result from a guardianship appointment.

The 56 page opinion goes into great detail about the procedure of the case and the court’s factual findings, as well as thoroughly reviewing Irish and European law that might apply to the situation. Ultimately, the court was striking out on some new ground in default of direct assistance from existing statutes and rulings, which Justice Hedigan acknowledged in his concluding remarks: "I must observe in conclusion that the absence of any provisions in Irish law taking account of the existence of same sex couples and securing their rights under article 8 of the European Convention on Human Rights seems something that calls for urgent consideration by the legislature. Included in this consideration should be the situation where such a couple wish one of them to bear a child. The evidence presented to the Court in this case was that this was something that was happening with greater frequency throughout the world than might have been thought heretofore. A range of issue arise for consideration: access to fertility facilities, the need for counselling, the rights and likely problems of the parties among themselves, possible succession rights between child and biological father – all are matters that require careful consideration and possible regulation. It is to be hoped that current consideration of the position of _de facto_ families in Irish law may help to avoid in the future the emotional trauma to which the parties in this case have been subject."

The judge’s remarks were not made in a vacuum, as the Irish government is actively considering the adoption of something akin to the British civil partnership act, which might resolve legal questions raised by this case.

Press reports about this case showed up promptly after the decision was announced, but we held up in writing about it until we could obtain a copy of the opinion.  It has been long delayed in being posted on the court's website, but we were able to obtain a copy recently with the kind assistance of a staff member of the International Lesbian and Gay Association's European branch, which we acknowledge with thanks.

7th Circuit Finds “Be Happy, Not Gay” Slogan on High Schooler’s T-Shirt Protected by First Amendment

The U.S. Court of Appeals for the 7th Circuit, based in Chicago, ruled on April 23 in Nuxoll v. Indian Prairie School District No. 204, 2008 Westlaw 1813137, that officials at Neuqua Valley High School in Naperville, Illinois, may not forbid a student who is opposed to homosexuality from wearing the slogan “Be Happy, Not Gay,” on his T-shirt.  Reversing a decision by District Judge William T. Hart, who had refused to order the school to allow Alexander Nuxoll to exhibit that slogan on his T-shirt during the so-called National Day of Truth that anti-gay activists promote as a counterpoint to the National Day of Silence sponsored by the Gay, Lesbian & Straight Education Network in the nation’s high schools, the appeals court found that censoring the slogan would violate Mr. Nuxoll’s free speech rights under the First Amendment of the U.S. Constitution.

The court’s ruling, explained in an opinion by Circuit Judge Richard Posner, is contrary to rulings by some other federal courts, as this slogan was not original with Mr. Nuxoll and has become a flash point in litigation around the country arising from the clashing Day of Silence and Day of Truth observances.

The school officials in Naperville had adopted a general rule forbidding “derogatory comments,” whether spoken or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability.”  Two years ago, when another student tried to wear a T-shirt with the slogan “Be Happy, Not Gay," she was required to ink out the words “not gay” or change her shirt upon threat of discipline.  Last year, that student and Nuxoll refrained from exhibiting such a slogan from fear of discipline.  The other student graduated last spring, but Nuxoll, a continuing student, filed a lawsuit, seeking a court order to allow him to wear the slogan this year.

According to Judge Posner’s summary of the arguments in the case, Nuxoll wants to do more than just wear the T-shirt.  He also wants to distribute Bibles at school and instigate conversations about whether homosexuality is appropriate conduct, and he’d like to be able to make stronger statements than “Be Happy, Not Gay” in support of his position.

Nuxoll argued that the school’s policy was unconstitutional in light of Supreme Court rulings supporting the right of students to engage in political speech, most prominently the important precedent of Tinker v. Des Moines Independent Community School District, a 1969 case involving the refusal of a school district to allow high school students to protest the Vietnam War by wearing black armbands at school as part of a national protest.  In that case, the Supreme Court ruled that high school students do have rights of political expression, which could only be censored if the school could show that disruption of the educational program would result from allowing the contested speech.

More recently, in ruling on cases in the ongoing “T-shirt wars” over homosexuality, courts have confronted arguments by school officials that allowing “derogatory” comments about homosexuality at school poisons the atmosphere for gay students, harming them psychologically and interfering with their ability to benefit from the educational program.  The 9th Circuit, based in San Francisco, endorsed this argument in a case involving Poway School District that has generated extensive media comment.

In this new opinion, Judge Posner endorses the same view.  After summarizing various court opinions about student speech controversies, he wrote, “we infer that if there is reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school – symptoms therefore of substantial disruption – the school can forbid the speech.  The rule challenged by the plaintiff appears to satisfy this test.  It seeks to maintain a civilized school environment conducive to learning, and it does so in an even-handed way.  It is not as if the school forbade only derogatory comments that refer, say, to religion, a prohibition that would signal a belief that being religious merits special protection.  The list of protected characteristics in the rule appears to cover the full spectrum of highly sensitive personal-identity characteristics.  And the ban on derogatory words is general.  Nuxoll can’t say ‘homosexuals are going to Hell’ (thought he can advocate heterosexuality on religious grounds) and it cannot be said back to him that ‘homophobes are closeted homosexuals.’”

Posner acknowledged that Nuxoll’s desire to advocate against homosexuality at school could have harmful effects.  “He wants to wear T-shirts that make more emphatically negative comments about homosexuality,” wrote Posner, “provided only that the comments do not cross the line that separates nonbelligerent negative comments from fighting words, wherever that line may be.  He also wants to distribute Bibles to students to provide documentary support for his views about homosexuality.”

“We foresee a deterioration in the school’s ability to educate its students if negative comments about homosexuality by students like Nuxoll who believe that the Bible is the word of God to be interpreted literally incite negative comments on the Bible by students who believe either that there is no God or that the Bible should be interpreted figuratively.  Mutual respect and forbearance enforced by the school may well be essential to the maintenance of a minimally decorous atmosphere for learning,” Posner asserted.

Thus, the court concluded that Nuxoll was not entitled to a preliminary injunction banning all enforcement of the rule, and that he had conceded that he was not entitled to engage in the kind of speech that is characterized by the courts as “fighting words,” that is, speech likely to provoke a violent response. 

Posner found that strategic concession to be “prudent,” commenting that “a heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense.  The contribution that kids can make to the marketplace in ideas and opinions is modest and a school’s countervailing interest in protecting its students from offensive speech by their classmates is undeniable.  Granted, because 18-year-olds can now vote, high-school students should not be raised in an intellectual bubble, which would be the effect of forbidding all discussion of public issues by such students.  But Neuqua Valley High School has not tried to do that.  It has prohibited only (1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including – perhaps especially including – adolescent schoolchildren, are highly sensitive.  People are easily upset by comments about their race, sex, etc., including their sexual orientation, because for most people these are major components of their personal identity – none more so than a sexual orientation that deviates from the norm.  Such comments can strike a person at the core of his being.”

“The plaintiff concedes,” wrote Posner, “that the most he is entitled to is an injunction that would permit him to stencil ‘Be Happy, Not Gay’ on his T-shirt on the ‘Day of Truth’ because forcing deletion of ‘Not Gay’ stretches the school’s derogatory-comments rule too far.  We must consider the argument carefully, because the term ‘derogatory comments’ is unavoidably vague.”

Although Nuxoll himself conceded that he intended the slogan to be a negative comment about homosexuality, Posner continued, “‘Be Happy, Not Gay’ is only tepidly negative; ‘derogatory’ or ‘demeaning’ seems too strong a characterization.  As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students.  But it is highly speculative that allowing the plaintiff to wear a T-shirt that says ‘Be Happy, Not Gay’ would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere.  Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech.  We are therefore constrained to reverse the district court’s order with directions to enter forthwith (the ‘Day of Truth’ is scheduled for April 28) a preliminary injunction limited however to the application of the school’s rule to a T-shirt that recites ‘Be Happy, Not Gay.’  The school has failed to justify the ban of that legend, though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.”

Posner predicted that there would certainly be further proceedings, because “this is cause litigation” and Nuxoll would press on to be allowed to argue more forcefully against homosexuality at school.  Actually, the pressing on will be done by Nuxoll’s lawyers from the Alliance Defense Fund, an issue-oriented law firm that specializes, among other things, in representing anti-gay students who want to be able to argue against homosexuality at school.

Concurring, Judge Ilana Rovner took exception to Posner’s belittling of the significance of high school student speech on political issues. “Youth are often the vanguard of social change,” she pointed out, citing the important role of young people in the civil rights movement, the women’s right movement, and now through gay-straight alliances in high schools, the gay rights movement.  “They have initiated a dialogue in which Nuxoll wishes to participate.  The young adults to whom the majority refers as ‘kids’ and ‘children’ are either already eligible, or a few short years away from being eligible to vote, to contract, to marry, to serve in the military, and to be tried as adults in criminal prosecutions.  To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, is contrary to the values of the First Amendment.”

Although Judge Rovner did not dissent from the court’s decision to narrow the scope of its relief to the slogan, while leaving the school’s overall rule in place, the tone of her concurrence suggests that Rovner felt that Posner had not really taken seriously enough the free speech issues in the case.   Posner’s “split-the-baby" decision, allowing the school to maintain its policy while allowing Nuxoll to make his anti-gay T-shirt statement, adds to that impression, although perhaps in the opposite sense from what Rovner intended, since in the context of a heated high school debate, the slogan is clearly intended, as even Posner acknowledges, to communicate a negative message about themselves to gay students.   The message may seem “tepid” to a cloistered federal appeals judge, but it did not seem so to the high school officials who have to deal with the fall-out from allowing Nuxoll to engage in his advocacy at school. 

Posner’s conclusion strongly suggests that Alliance Defense Fund will grab the opening presented by this opinion to push the envelope in future cases by seeking to protect anti-gay high school students who want to make more pointed arguments in opposition to the Day of Silence.  And as more controversies surrounding the Day of Silence occur around the country, ultimately the issues raised by this case may need to be resolved by the Supreme Court.

Federal Court Upholds 6 Month Sentence in Park Sex Sting

A man caught in a law enforcement "sting operation" in the Wheeler Wildlife Refuge in Alabama won a reversal of his conviction on charges of indecent exposure, but will still have to serve a six-month prison term on charges of public lewdness arising from the same facts, according to an April 15 ruling by U.S. District Judge U.W. Clemon in U.S. v. Burnett, 2008 WL 1790276 (N.D. Alabama).

According to Judge Clemon’s opinion, Julian B. Burnett was arrested on the Beaverdam Boardwalk after he unzipped his pants, pulled out his penis, started masturbating, and said to plainclothes police officer Greg Blanks, the only other person present, that he was interested in getting a "blow job." The Wildlife Refuge is federal property operated by the U.S. Department of the Interior, whose regulations provide that "any act of indecency or disorderly conduct as defined by State or local laws is prohibited on any national wildlife refuge." 50 CFR 27.83.

The U.S. Attorney charged Burnett with two crimes under Alabama law, made applicable by this regulation to conduct in the Wildlife Refuge: indecent exposure and public lewdness. Burnett was tried before a Magistrate Judge, and testified in his own defense, describing how, in his view, Blanks had led him on by nodding and appearing receptive. Among the facts that came out at the trial was that Burnett is HIV-positive, and this seems to have set off the Magistrate Judge, who didn’t believe crucial elements of Burnett’s testimony. The Magistrate Judge rejected Burnett’s request that the jury be charged on the issue of lack of consent.

Upon Burnett’s conviction, the Magistrate sentenced him to 6 months, the highest sentence available, stating, "Mr. Burnett, according to the testimony, solicited oral sex from the officer; he committed perjury by testifying in his own defense; and he knew he was HIV positive, thus, risking the possibility of transmitting the disease to others out there."

Burnett appealed the Magistrate’s ruling to the district court. Judge Clemon found that the Magistrate erred on the consent issue. It seems that indecent exposure is classified in Alabama as a sex crime, and the Alabama Penal Code provides that "lack of consent" is an element in all sex crimes. Thus, the failure of the prosecutor to allege lack of consent made the charges legally insufficient, and the indecent exposure conviction had to be tossed out.

However, it seems that public lewdness is not a sex crime in Alabama, but rather an offense against health and morals, and the Penal Code does not make consent an issue in such cases, so the conviction of public lewdness stands.

As to the enhanced sentence, Judge Clemon observed that in the 11^th Circuit the standard for review of sentencing is a deferential reasonableness standard. In this case, he wrote, "It is sufficient to note that the trial court included in the sealed transcript of the sentencing hearing (1) that it would use Burnett’s HIV status in formulating the sentence and (2) that it had considered the factors under 18 USC sec. 3553(a). The trial court also noted that it considered the fact that Burnett committed perjury when he took the stand in his own defense as well as the seriousness of the sexual offense Burnett was charged with committing – especially with respect to Burnett’s HIV status." Clemon pointed out that prior 11^th Circuit precedent supports considering the defendant’s HIV status in sentencing "when the offense either did or had the potential to communicate the virus to others." Under the circumstances, Clemon found that the sentence was "reasonable."

The result: For committing an offense that usually draws a fine or minimal jail time, Burnett is going to serve 6 months because he is HIV positive and unconvincingly contradicted on the witness stand the plainclothes officer’s account of the conduct that led to his arrest.

Is Anti-Gay Discrimination Unconstitutional? Not in the 10th Circuit!

A unanimous three-judge panel of the U.S. Court of Appeals for the 10^th Circuit, based in Denver, ruled in Milligan-Hitt v. Board of Trustees of Sheridan County School District No. 2, 2008 Westlaw 1795068 (April 22), that the constitutional status of anti-gay discrimination remains so unsettled early in 2003 that a Wyoming public school superintendent who was found to have discriminated against two lesbian administrators based on "community notions of morality" was immune from liability. The court also refused to commit itself as to whether the legal point is clearly enough established today to vitiate an immunity defense. Two of the judges on the panel were appointed by George W. Bush, the third by Ronald Reagan.

Kathleen Milligan-Hitt and Kathryn R. Roberts, a lesbian couple who had previously lived in Rock Springs, Wyoming, moved to Sheridan to take up administrative jobs in the public schools there. Both were working on renewable one-year contracts. Milligan-Hitt was assistant principal of a junior high school, and Roberts was principal of a middle school. They both filed suit after their applications for new administrative positions that came open as a result of construction and reorganization in the school district were denied, naming as defendants the school board, the superintendent, and the assistant superintendent.

In May 2002, they had accompanied a school field trip to Montana. When school resumed in the fall, each of them was confronted by the Superintendent of Schools, Craig Dougherty, who related that he had received a complaint from some parents that during the field trip their daughter had seen Milligan-Hitt and Roberts "holding hands and walking into a Victoria’s Secret store," according to the court’s opinion by Judge Michael W. McConnell. Both women testified that this account was "false," and that Dougherty had stated that it did not "sound like a likely story," but that he discussed it with them because he "wanted to let them known that this had occurred."

"The content of these discussions was disputed at trial," wrote McConnell. "According to Ms. Roberts, Mr. Dougherty called her into her own office (where he was sitting in her chair) and told her about the complaint. After she denied the incident, Mr. Dougherty responded ‘that he had called Rock Springs and he knew all about the two of [them].’ She testified that he was angry, and that his face was red and his voice slightly raised. Ms. Milligan-Hitt testified to a similar conversation: Mr. Dougherty also told her, ‘I called Rock Springs and I know all about you two.’ He was angry and red-faced during this version of the conversation as well, and she felt that her ‘job could be in jeopardy.’ In contrast," continued McConnell, "Mr. Dougherty testified that he was not upset during these conversations, did not mention Rock Springs, and told Ms. Roberts that her sexual orientation ‘would never be an issue’ so long as he was superintendent."

Judging by the subsequent rulings of the trial judge and the jury verdict, Dougherty’s version of events was not found to be credible.

The interviews and hiring decisions for various new administrative positions were made during the first half of 2003. After neither woman was successful in landing the positions they sought, the district did not renew Milligan-Hitt’s contract, and Roberts was hired to teach physical education for a year. The two women later moved to Lander, Wyoming, finding work in the public schools there, and filed the lawsuit, claiming to have been the victims of sexual orientation discrimination in violation of the 14^th Amendment’s Equal Protection Clause.

A series of complicated pre-trial rulings followed by a jury trial resulted in a determination by the trial judge that Dougherty had violated the plaintiffs’ constitutional rights, but that Dougherty enjoyed immunity from personal liability because at the time, prior to the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003) (striking down that state’s sodomy law), a reasonable person in Dougherty’s position would not know that his conduct was unconstitutional. As part of this ruling, the trial judge concluded that Lawrence had changed the law (after Dougherty’s actions) by invalidating "community moral standards" as a justification for anti-gay discrimination by the government.

On the other hand, the jury found that the school district had delegated its decision-making on filling the positions to Dougherty, that he had unconstitutionally discriminated, and that the district should be held liable to the tune of $160,515 in damages. While individual government officials enjoy personal immunity for violations of constitutional law if the basis for their liability was not clearly established when they acted, government entities, such as a school board, do not enjoy such immunity, and may be held liable when they delegate their policy-making function to an individual who discriminates.

Thus, the end result of the trial was that both the judge, in ruling on Dougherty’s motion to find him immune from personal liability, and the jury, in ruling on the school board’s liability, agreed that Dougherty had violated the plaintiffs’ equal protection rights, based on a current understanding of constitutional law, but that Dougherty was not personally liable based on the state of the law early in 2003.

On appeal, the 10^th Circuit concluded that the trial judge should not have allowed the case against the school board to go to the jury, finding as a matter of law that the school board had not delegated its hiring decisions to Dougherty and thus could not be held liable based solely on his violation of constitutional rights. A government entity is not held liable unless it has a policy or practice that violates constitutional rights, and there was no evidence that the Sheridan school board had such a policy. The trial judge thought that the delegation issue was a factual question for the jury to resolve, but the court of appeals ruled that it was a legal question to be resolved by the court, and that based on the school board’s charter and resolutions, it was clear that the board retained final hiring authority.

However, the appeals court found that the trial judge had correctly concluded that Dougherty enjoyed personal immunity based on the state of the law prior to Lawrence v. Texas and, going even further, left some doubt whether Dougherty could be found to have violated the law as it now stands, by stating that "we offer no opinion on whether Lawrence v. Texas, decided after the events of this case, clearly established a rule of equal protection relevant here when it overruled Bowers v. Hardwick[, 478 U.S.186 (1986)]."

Accepting the finding that Dougherty’s opposition to Milligan-Hitt and Roberts was based on community moral disapproval of their lesbian lifestyle, Judge McConnell observed that in Bowers, the Supreme Court had treated "moral disapproval" of homosexuality as a rational basis for outlawing "homosexual sodomy." That ruling had in turn been relied upon by the 10^th Circuit Court of Appeals in a 1992 case, Jantz v. Muci, 976 F.2d 623, which found that a school superintendent enjoyed immunity from liability for rejecting a gay applicant for an administrative position. Since Jantz relied on Bowers, and since Bowers was not overruled until Lawrence, the court of appeals found that before Lawrence a school superintendent in the 10^th Circuit could believe that it there was no constitutional prohibition on disfavoring a gay job applicant on the basis of moral disapproval.

The plaintiffs argued that Romer v. Evans, 517 U.S. 620 (1996), which struck down the anti-gay Colorado Amendment 2, signaled that anti-gay discrimination violated the Equal Protection Clause, undermining the Jantz precedent. McConnell disagreed, pointing out that even gay legal scholars, whose works he cited in a footnote, had found Romer to be a puzzling decision whose import for gay rights under the Equal Protection Clause was unclear. The majority opinion in Romer did not mention Bowers, although – as McConnell fails to state – Justice Scalia’s Romer dissent criticized the Court for failing to acknowledge that its holding was inconsistent with Bowers. The Romer decision did say, however, that animus against gay people could not serve as a "rational basis" for an anti-gay official state policy, so McConnell was taking a rather crabbed view of Romer’s impact on the continuing precedential soundness of Jantz.

"We do not think Romer’s holding was so clear," wrote McConnell, "and do not think it clearly overruled Jantz’s holding that municipal officials may sometimes defer to community standards when discriminating on non-suspect grounds." He pointed out that the ultimate precedential weight of Romer remains undetermined, even after Lawrence, which, after all, was not an equal protection ruling. "This is not necessarily to minimize the impact of Romer," he wrote; "It is simply to say that Romer’s impact on prior precedent was not clear when it was decided. It is possible, as we have noted before, that the decision will ultimately ‘represent the embryonic stage’ of a major change in doctrine. But officials held personally liable for damages do not have to guess whether that is so before the courts decide it, and Romer does not reveal its own scope. Because the constitutional rule at issue was not clearly established for the period relevant to this case, Superintendent Dougherty may not be held personally liable for damages."

The ironic bottom line is that although both the trial judge and a jury concluded that Dougherty unconstitutionally discriminated against Milligan-Hitt and Roberts, nobody can be held liable for the discrimination. And, at least in the 10^th Circuit, such immunity may persist until such time as the circuit court, or the Supreme Court, makes a more definite ruling about the constitutional status of anti-gay discrimination.

Unusual Mixture of Old and New - Machaut/Dufay & O'Regan/Bryars

Here is the most unusually thought-through and interesting program.  The Orlando Consort has put together a recording that interweaves ancient and modern vocal music in a way that plays the old off the new and the new off the old.

First, they give us a composition by young British composer Tarik O'Regan, titled Scattered Rhythms (which is also the title they give to the entire program), playing off the Orlando Consort, a handful of solo voices specializing in medieval and renaissance vocal polyphony, against the Estonian Philharmonic Chamber Choir (conducted by Paul Hillier).  The Orlando Consort sings, in Latin, the verses of an anonymous 14th century English poet, while the larger choir sings Italian verses of Petrarch, also 14th century.  The vocal lines weave in and out of each other simultaneously, evoking the effect of Machaut's odd polyphony.  This is followed by a performance of the Guillaume de Machaut Messe de Nostre Dame (c. 1360) by the Orlando Consort, using archaic French pronunciation of the Latin text, which smooths it out be removing many of the s and x sounds that are normally pronounced in performances of this music.

They follow the mass with a motet by Guillaume Dufay, Ave Regina Coelorum, written about a century later than the Machaut Mass, but having a commonality in being written by their composers as memorials to themselves, intended to perform in their memories.  (Machaut left a monetary endowment to fund performances of the mass in his memory on the anniversaries of his death, and Dufay left instructions for his motet to be performed as he lay dying, although in the event the singers could not be assembled quickly enough and it was performed instead at his funeral.)  The Orlando Consort again uses the archaic French pronunciation of the Latin, distinguishing their performance from others I've heard on recordings.

But the thematic interplay continues with a modern composition by Gavin Bryars, another English composer, inspired by Dufay's setting to incorporate the same Latin hymn into his own choral work evoking a legend of a drowned girl revived when her body was taken to a monastery where the Ave Regina hymn was sung over her body.  To evoke the retrieval of the lifeless girl from the water, he also sets verses from the Psalm "By the waters of Babylon..." (Ps. 137), all this again in Latin, but sung with modern pronunciation, of course.

Finally, perhaps in the nature of "encore," tenor Mark Dobell from the Orlando Consort sings de Machaut's virelai "Douce Dame Jolie" - which might be described as Machaut's "greatest hit," or at least this catchy unaccompanied tune is his most frequently recorded piece after the Notre Dame Mass - to be followed by a set of vocal variations on the same tune for the full Orlando Consort, composed by O'Regan.

The entire program is enchanting, the interrelationships of the music illuminating.  I regret I am not equipped with the mechanism to decode super audio sound, with which this CD is encoded, but in ordinary stereo it sounds wonderful.  I can only imagine the interplay, especially in audio surround, of the Orlando Consort with the Estonian Philharmonic Chamber Choir in the first piece.

The Orlando Consort has had a string of unusually thoughtfully programmed recordings, and this is another great achievement in that line.  Harmonia Mundi is to be congratulated for supporting their efforts to bring medieval and Renaissance music to life in this way.  This is distinctly a minority musical interest, but their performances are so enlivening that they should attract a wider audience.