Sexuality and the Law
PSC/QSX 384.001 (Spring 2011)
Syracuse University

Tom Keck

Teaching Assistant: Richard Price

tmkeck@maxwell.syr.edu

riprice@maxwell.syr.edu

Office hours: M 1:30-3:00, Tu 11:00-12:00

T, Th 1:00-2:00

Office location: Eggers 315 (443-5862)

Eggers 027

 

Class Time and Location: T, Th 2:00-3:20, Bowne 105

Course Content and Objectives

This course will focus on the legal rights of LGBT persons in the United States from the mid-twentieth century to the present. It presumes no prior background knowledge in LGBT studies, legal studies, or political science, though any or all of those may be helpful.

Course Readings

There is one required book, available for purchase at the SU Bookstore:

Most of the readings for the course will be available on-line, linked from the course schedule below. In addition to those individual readings, the following on-line resources may be helpful as well:

Course Requirements

Most of your grade for this course will be based on a semester-long research project, which will culminate in a 12-15 page paper and a presentation in class. This assignment will be broken into several parts, as follows.

Initial research proposal

By Thursday, February 3, all students must identify one court decision that will be the starting point for their research. This should either be a decision that is mentioned somewhere on this syllabus or a decision that you have discussed with Professor Keck prior to this date. You should submit a one-page research proposal that summarizes some of the key facts and arguments in the case you've selected, and that begins to articulate some broader implication of the case that you hope to explore more fully. This proposal is worth 5% of your grade.

Revised research proposal

On Thursday, February 17, all students should submit a revised research proposal, approximately 2-3 pages in length, that elaborates upon your initial draft. Before submitting this assignment, all students must meet at least once, outside of class, with either Professor Keck or the TA. This revised proposal is worth 10% of your grade.

Annotated bibliography

By Thursday, March 3, all students should meet at least once with a reference librarian at Bird Library to get his/her advice on tracking down scholarly sources related to your project. (I'll provide more details about these meetings in class.) Once you've had that meeting, you should submit an annotated bibliography that includes at least 3 books, at least 5 scholarly articles, and at least 10 judicial decisions, journalistic pieces, and/or internet documents. For each item listed, you should provide a 1-2 sentence summary of how and why it is relevant to your project. Your bibliography should indicate the name of the reference librarian with whom you met and the date on which you met him/her. This annotated bibliography is worth 10% of your grade.

The library staff has constructed this page specifically for our course, as a guide to library resources that are likely to be helpful.

Partial draft

On Thursday, March 31, all students should submit a partial draft of their research paper, approximately 6-8 pages in length, that presents an initial stab at articulating and defending part of their argument and spells out how they will proceed from here. This partial draft is worth 20% of your grade.

Final draft

On Tuesday, May 3, all students should submit a completed research paper, approximately 12-15 pages in length. This completed paper is worth 30% of your grade.

Oral presentation

At some point in the semester, each student will make a presentation of his/her research in class. This presentation is worth 10% of your grade.

Attendance and participation

The remaining 15% of your grade will be assigned on the basis of your attendance and participation in class. Though I will sometimes lecture for all or part of a class session, that will not be our primary in-class activity. Most of our sessions will be devoted to active discussions that require the participation of all students. This does not mean that you have to come to every class with a fully developed point of view about every issue addressed in the reading. It does mean that you need to complete the readings prior to class and come prepared with some thoughts or questions in response to those readings. No one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, or for changing their minds. But it should be clear that you are trying, that you have done the readings and are working toward a mastery of the material.

To assist me in assigning these last two portions of your grade, during the last week of classes, each of you should submit a one-page self-assessment of your presentation in particular and your class participation in general. In this self-assessment, you should assign yourself a letter grade (A, B+, etc.) for each, and then write a paragraph or two explaining and justifying those grades. For example, you might address the following sort of questions: How clear was your oral presentation? How interesting was it? How well did you respond to questions from your fellow students? How often did you ask questions during their presentations? How many times were you absent from class? How much did you contribute to class discussions? When you didn't participate, were you nonetheless alert and prepared for class? If so, then why didn't you speak up on those occasions? How often did you do anything that disrupted class discussions or distracted your fellow students (e.g., chatting, sleeping, cell phone ringing, leaving the room during class, etc.)? I will read your self-assessment and compare it with my own perceptions before assigning these portions of your grade.

Note that all written work should be typed and double-spaced. Click here for some more detailed paper expectations.

Course Policies

Attendance policy: More so than in most courses, regular attendance will be essential to your success in this class. Much of our class time will be devoted to discussion of the course readings, and it will often be impossible to make up this time once you have missed it.

Late paper policy: Because each written assignment builds on the previous ones, it is important that you make every effort to submit each assignment by the assigned date. As such, these deadlines will be extended only for good cause, and only with my explicit permission (so don't bother pleading with the TA).

Grading policy: Most of your written work will be graded by the teaching assistant for the course. If you have questions about any of these assignments before they are due, you are welcome to speak with either me or the TA (or both of us). If you have questions after the assignments have been graded, you are again welcome to speak with either of us, unless you are contesting your grade, in which case you should bring that concern to me. If you choose to appeal the grade assigned by the TA, I will re-grade the assignment from scratch, which means that you could receive a grade that is lower, higher, or the same as the grade originally assigned.

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and have less stress about your success in the course. Tutoring centers include the Tutoring & Study Center (TSC), the Writing Center, the Math and Calculus Clinics, the Physics Clinic, the Chemistry Clinic, and the Athletics Academic Services Center. All schedules and locations are posted on the TSC website.

Academic integrity: The Syracuse University Academic Integrity Policy holds students accountable for the integrity of the work they submit. This means that it is your responsibility to be familiar with the Policy in general and to learn about the specific expectations of each of your instructors regarding proper citation of sources in written work. The policy also governs the integrity of work submitted in exams and assignments as well as the veracity of signatures on attendance sheets and other verifications of participation in class activities. Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty is plagiarism, which SU policy defines as "the use of someone else's language, ideas, information, or original material without acknowledging the source." If you are caught violating any of these rules, I will assign an F for the course and then refer the matter to the CAS academic integrity coordinator for additional action. For more information and the complete policy, see the Academic Integrity Policy and Procedures

Student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous. 

Reasonable accommodation: If you believe that you need accommodations for a disability, please contact the Office of Disability Services (ODS), located in Room 309 of 804 University Avenue (443-4498). ODS is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters to students with documented disabilities. Since accommodations may require early planning and generally are not provided retroactively, please contact ODS as soon as possible. 

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

Office hours and email communication: My regular office hours are listed above, but you are welcome to make an appointment for some other time, or simply to drop by. If you just have a quick question, I encourage you to reach me by email. In addition, I will regularly use Blackboard's "Send email" feature to contact all members of the class. As such, all students are responsible for regularly checking their SU email accounts throughout the semester.

Course Schedule

Tue., Jan. 18: Course introduction. We'll watch part of Coming Out Under Fire, an award-winning documentary about gay and lesbian service members during World War II.

I. Before Stonewall

Thur., Jan. 20: Government employment during the Cold War

As we learned from the end of the film, the U.S. government's effort to exclude homosexuals from military service soon extended to civilian government employment as well. We'll focus today on the case of Kameny v. Brucker, 282 F.2d 823 (D.C. Cir. 1960). Franklin Kameny was one of the earliest gay rights advocates in the U.S.--i.e., one of the first people willing to publicly identify himself as homosexual and demand equal treatment from the government. Everyone should read Kameny's unsuccesful petition to the U.S. Supreme Court, which is linked below. Note that Kameny filed this brief pro se, which means on his own and without a lawyer. How well did he plead his case? Pay particular attention to pp. 6-19, in which Kameny details the facts that led to the legal dispute--in other words, when, why, and how he lost his job with the U.S. Army Map Service--and summarizes the key reasons that the Supreme Court should hear the case. If you have time, you might also check out this great archive of Kameny's correspondence and other papers; this 1950 Congressional subcommittee report entitled "Employment of Homosexuals and Other Sex Perverts in Government"; and this executive order issued by President Eisenhower in 1953.

Tue., Jan. 25: Keeping gay people out of the country

Besides government employment, another arena where gays and lesbians were likely to run afoul of federal law was immigration. As you read the case below, you'll see that the INS deported Mr. Boutilier to Canada because he was gay, and that the Supreme Court held that this action was legal. Note that the Court was divided, however, and pay particular attention to Justice Douglas's dissenting opinion. Our immigration laws have evolved quite a bit since 1967, but LGBT immigrants continue to face an array of legal obstacles today. Until January 4, 2010, being HIV positive was grounds for exclusion from the United States. In addition, LGBT immigrants who fear persecution in their home countries continue to face difficult hurdles to gaining asylum in the U.S., and American citizens with same-sex spouses or partners are prohibited from sponsoring them for legal immigration status. Immigration Equality's site has lots of details.

Thur., Jan. 27: Regulation of gay sex (and drinking) in the 1950s

We've been focusing on the federal government so far, but in the 1950s (and still today), LGBT persons were more likely to face legal harassment and discrimination at the hands of state and local officials. Before Stonewall (and sometimes still today), state and local law enforcement officers regularly harassed the owners and patrons of gay bars and regularly sought to entrap gay men into soliciting illegal sex. For some background, everyone should read pp. 356-376 of Prof. George Chauncey's 2010 testimony in Perry v. Schwarzenegger. (Note that those pages refer to the numbers that appear on the upper right-hand corner of the pages; if you're trying to print the relevant pages, you should print pp. 143-163 of the pdf document.) Everyone should also read the California Supreme Court decision linked below.

Tue., Feb. 1: Gay sexual expression and the First Amendment

Some of the earliest legal victories of the gay rights movement--though it wasn't called that yet--came in the First Amendment context. The first such victory at the Supreme Court came in One, Inc. v. Olesen (1958), in which the Court issued a summary reversal of a Ninth Circuit decision that had upheld the U.S. Postmaster's refusal to deliver copies of a gay-themed magazine called One. Take a look at that Ninth Circuit holding if you have time, but we'll focus our discussion on another decision from the Supreme Court a few years later, the case of Manual Enterprises v. Day. If you're interested in exploring this issue further, there are a great many interesting cases, but you might start with American Booksellers Association v. Hudnut, 771 F.2d 323 (7th Cir. 1985) or, for a comparative perspective, Regina v. Butler, 1 S.C.R. 452 (Supreme Court of Canada, 1992). 

II. After Stonewall: Gay Liberation in the 1970s

Thur., Feb. 3: The Times of Harvey Milk

How did the legal treatment of gays and lesbians begin to shift after Stonewall? We'll start by watching either Milk or The Times of Harvey Milk, each of which chronicles the tragically short life of Harvey Milk, who helped win enactment of some of the first civil rights laws protecting gays and lesbians anywhere in the United States. Everyone should get started on the Carlos Ball book, and note that your first research proposal is due in class today. 

Tue., Feb. 8: Same-sex marriage in the 1970s

Today, we'll have our first encounter with same-sex marriage, a topic on which we'll spend considerable time in the coming weeks. In the early 1970s, same-sex couples in several states tried to get legally married. None of them succeeded, with courts in Minnesota, Washington, and elsewhere holding that state governments were perfectly free to restrict civil marriage to opposite-sex couples. Take a look at the Minnesota and Washington decisions if you have time, but we'll try a different tack for our primary reading here: a scholarly essay by Scott Barclay and Shauna Fisher. What is Barclay and Fisher's argument about the 1974 marriage litigation in Washington in particular? About legal advocacy by LGBT rights litigators more generally? 

Thur., Feb. 10: Gay students in the 1970s

We're racing through the 1970s somewhat quickly. If we had more time, we might stop to consider Doe v. Commonwealth's Attorney for Richmond (E.D. Va. 1975) or Lovisi v. Slayton (4th Cir. 1976), each of which involved unsuccesful constitutional challenges to Virginia's criminal sodomy law. Or perhaps Van Ooteghem v. Gray (5th Cir. 1980), which established the First Amendment right of gay public employees to publicly advocate for gay rights during non-working time. For today, however, we'll focus on two cases involving the rights of gay and lesbian college students to form student organizations.

III. The Reagan Era, and the Age of AIDS

Tue., Feb. 15: Turning to the Reagan Era and the age of AIDS, we'll start by watching some scenes from And the Band Played On. As you watch the film, think about the sort of legal issues that were likely to emerge as millions of gay men (among others) were infected with the AIDS virus, became critically ill, and passed away.

Thurs., Feb. 17: Braschi v. Stahl (1989): The first legal victory for same-sex partnerships

As you read Ball's account of the Braschi case, continue to think about the variety of legal disputes that might have emerged from the AIDS epidemic. For a significant case regarding the rights of HIV-positive persons to maintain their health insurance, check out McGann v. H & H Music Co., 946 F.2d 401 (5th Cir. 1991). Your revised research proposal is due today.  

Tue., Feb. 22: Is there a constitutional right to privacy?

Bowers v. Hardwick (1986) is one of the most notorious decisions in the modern history of the Supreme Court. What did the Court hold and why? For additional examples of blatantly anti-gay government action that was tolerated by the federal courts during this period, see Rowland v. Mad River Local School District (1985) or National Gay Task Force v. Board of Education of Oklahoma City (1984). To get a sense of how LGBT rights advocates responded to the Bowers decision, you might take a look at Kentucky v. Wasson (Ky. 1992) or read chapter five of Ellen Ann Andersen's Out of the Closets & Into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Your revised research proposals are due in class today.

Thur., Feb. 24: Does the Constitution guarantee gay equality?

The Bowers decision was explicitly focused on questions of constitutional liberty and privacy, but it turns out to have had implications for constitutional equality arguments as well. How so?

 Tue., Mar. 1: Do federal civil rights laws protect transgender persons from discrimination?

There have been lots of state and federal court decisions on this and related questions. If you're interested, you might start by checking out Richards v. USTA, 400 N.Y.S.2d 267 (NY 1977); Price Waterhouse v. Hopkins (1989); Oiler v. Winn-Dixie Louisiana, Inc., 2002 U.S. Dist. LEXIS 17417 (E.D. La. 2002); or Rene v. MGM (9th Cir. 2002).

IV. An Ally in the White House? The Clinton Era

Thur., Mar. 3: Anti-gay ballot initiatives

Today, we'll watch Ballot Measure 9, which chronicles to campaigns for and against an anti-gay ballot measure in Oregon in 1992. Everyone should read the Craig Rimmerman chapter below, and remember that your annotated bibliography is due today.

Tue., Mar. 8: A landmark Supreme Court victory!

Our focus today is Romer v. Evans (1996), the first case in which the Supreme Court held that gay rights were protected (at least a little bit) by the Fourteenth Amendment's equal protection clause. If you're interested in further reading on the case, you might start with Lisa Keen and Suzanne Goldberg's Strangers to the Law: Gay People on Trial.

Thur., Mar. 10: Don't Ask, Don't Tell

In 1993, President Clinton signed the "Don't Ask, Don't Tell" policy into federal law. LGBT rights advocates immediately challenged the policy in federal court, and at the same time, a number of constitutional challenges to the previous version of the military exclusion policy were working their way through the courts as well. Our focus today is the case of Joseph Steffan, who was kicked out of the U.S. Naval Academy under the pre-Clinton policy. Everyone should try to take a look at the D.C. Circuit's ultimate resolution of the case in Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994), but our main focus will be on the Stoddard article linked below. For more details on the Steffan case, see Marc Wolinsky and Kenneth Sherrill's Gays and the Military: Joseph Steffan versus the United States (Princeton University Press, 1993). For another decision on the pre-Clinton policy that (temporarily) came out the other way, check out Watkins v. U.S. Army, 847 F.2d 1329 (9th Cir. 1988). For decisions on the Don't Ask, Don't Tell policy, take a look at Meinhold v. U.S. Department of Defense (9th Cir.), Able v. U.S. (2nd Cir.) or Cook v. Gates (1st Cir.). 

March 14-18: Spring break.

Tue., Mar. 22: Parenting rights

 Thur., Mar. 24: Students's rights

Our focus today is Nabozny v. Podlesny (1996), a case involving severe harassment of a gay kid by fellow middle-school students.

Tue., Mar. 29: Same-sex marriage hits the headlines

Today, we turn our attention to a 1993 decision from Hawaii that put the issue of marriage equality on the national agenda to stay. The case is called Baehr v. Lewin, 74 Haw. 530 (Haw. 1993). In addition to the Carlos Ball chapter, I recommend chapter one of William Eskridge's Equality Practice.

Thur., Mar. 31: The invention of civil unions

After the Hawaii decision, the Vermont Supreme Court kept the marriage equality movement alive with its decision in Baker v. Vermont, 170 Vt. 194 (Vt. 1999). What, exactly, did the court hold? How did the state's lawmakers respond? Your partial draft is due in class today.

Tue., Apr. 2: Another look at parenting rights

 The Supreme Court's decision in Troxel v. Granville (2000) had nothing directly to do with LGBT rights, so why did Lambda Legal file an amicus briefs in the case? For a recent parenting case involving a same-sex couple, see Miller-Jenkins v. Miller-Jenkins. If you're interested in the question of interstate recognition of same-sex marriages and civil unions that is raised there, check out Andrew Koppelman's Same-Sex, Different States. For another Supreme Court case that had nothing to directly to do with LGBT rights, but in which Lambda Legal participated, see Washington v. Glucksberg (1997).

Thur., Apr. 7: Workplace harassment

We'll look today at the Supreme Court's decision in Oncale v. Sundowner (1998). Your "reading" is to listen to the Court's oral arguments in the case. A 60-minute audio file is linked below.

V. LGBT Rights in the 21st Century

Tue., Apr. 12: The Boy Scouts

Our question today is whether the Boy Scouts of America has the right to exlude gay members and leaders. For similar legal disputes in somewhat different contexts, see Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, 536 A.2d 1 (D.C. Court of Appeals, en banc 1987); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)

Thur., Apr. 14: Another landmark Supreme Court victory: Lawrence v. Texas (2003)

The Lawrence victory was quite significant in and of itself, but some LGBT rights advocates have been disappointed that its legal impact hasn't been broader. See, for example, Lofton v. Department of Children's Services (11th Cir. 2004). 

Tue., Apr. 19: Goodridge v. Department of Public Health (2003)

Going further than its counterparts in Hawaii and Vermont, the Massachusetts high court was the first to actually legalize SSM. Since the Goodridge decision, the high courts of California, Connecticut, and Iowa have done likewise, but our own New York Court of Appeals declined to do so in Hernandez v. Robles (NY 2006). All of these decisions are worth reading, but for today, we'll focus on a prominent scholarly account of Goodridge's aftermath. You should read Klarman's account closely, but you should also be aware that his view is not universally held. For an alternative take on Goodridge, check out Dan Pinello's America's Struggl for Same-Sex Marriage" or my own article entitled "Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights."

Thur., Apr. 21: One last look at "Don't Ask, Don't Tell"

In September 2010, Federal District Judge Virginia Phillips held that the "don't ask, don't tell" policy, which prohibits gays and lesbians from openly serving in the military, violates the due process clause of the Fourteenth Amendment and the freedom of speech. A couple months later, President Obama signed a bill authorizing the policy's repeal. Note that Judge Phillips's holding is quite long; the most important part starts on p. 45, so feel free to skim the pages that precede that. 

Tue., Apr. 26: Perry v. Schwarzenegger, Day One

We'll focus today on the complex set of legal and political conflicts that eventually led to the high-profile same-sex marriage lawsuit currently pending in California. The Cummings and NeJaime article is quite long, but it's one of my favorite articles of recent years, so I think it's worth it. If you don't have time to read the whole thing, skim it from beginning to end for the main arguments.

Thur., Apr. 28: Perry v. Schwarzenegger, Day Two

Today, we'll focus on the trial in Perry v. Schwarzenegger itself, and the subsequent holding by Federal District Judge Vaughn Walker. That holding is quite long; as before, be sure to at least skim it for the main arguments. If you manage that and would like to read still more about the case, there are a variety of additional documents available on-line. For example, here's the transcript of Day 2 of the trial, which includes expert testimony from historians Nancy Cott and George Chauncey.  

Tue., May 3: Final presentations and wrap up

Today's class will be devoted to our final round of presentations. Your final drafts are due in class today, and you should email your participation self-assessment to me by the end of the week.