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LA’s New ‘Condoms In Porn’ Law Is Pitting AIDS Groups Against The Adult Film Industry

On Election Day 2012, Los Angeles County voters approved Measure B, an ordinance “requiring producers of adult films to obtain a County public health permit” and for “adult film performers to use condoms while engaged in sex acts.” Porn producers, who have consistently opposed the measure, vowed to fight it tooth and nail. But as it turns out, one group is ready to fight back.

On Monday, the AIDS Healthcare Foundation (AHF) — an advocacy and lobbying outfit that has pushed for cheaper HIV medications and greater public health protections for HIV-positive Americans — became the first group to call out the Los Angeles County Department of Public Health over its allegedly lax enforcement of Measure B since its passage. The foundation lodged an official complaint with the County “after receiving an anonymous letter with an accompanying videotape filmed by someone on an Immoral Productions set” depicting unsafe sex practices and reviewing material on the production company’s website that also depicted intercourse without a condom.

For the well-funded advocacy group, this is just the latest skirmish in a decade-long battle. AHF president Michael Weinstein has spearheaded efforts to instill the same workplace safety and public health standards on straight porn sets as are already enforced in most gay pornography productions. Under his leadership, the AHF filed suit — to no avail — to make Los Angeles-produced pornography a “condom-only” enterprise; pushed for a citywide L.A. ordinance to the same effect; and spent over $1.6 million in its ultimately successful 2012 campaign to pass the more expansive, countywide Measure B. As he told L.A. Weekly in 2010, “AHF doesn’t give up on an issue, and we’re not going to give up on this.”

It appears that Weinstein and his group plan to follow through on that promise in the face of a combative Los Angeles adult entertainment industry and concerns over the Public Health Department’s enforcement prowess. “We’re putting them to the test,” Weinstein told the Los Angeles Times. “If democracy means something in L.A. County — if porn producers and county supervisors are not above the law — then they will enforce it.”

AHF and fellow public health advocacy organizations certainly have their work cut out for them. Trade groups associated with the multibillion dollar L.A. porn industry have promised to litigate the measure, citing freedom of speech concerns. This argument could potentially stand up in court — but only if the industry’s claims that it sufficiently tests all of its performers for sexually transmitted infections are true. An independent study by AHF that was published in the December Journal of Sexually Transmitted Diseases presents plenty of evidence to suggest that they are not, as “roughly a third of the 168 adult film actors who participated in the research project were found to have a previously undiagnosed STD.”

Sante Fe Lawmakers Welcome Same-Sex Marriage

Santa Fe Mayor David Coss

New Mexico is an odd state when it comes to the current legal circumstances for same-sex marriage. It has neither a constitutional amendment nor a state law limiting marriage to opposite-sex couples. In 2004, a county clerk simply started offering marriage licenses to same-sex couples, and before that was stopped, 64 couples obtained marriage certificates. Since then, county clerks have simply agreed not to offer more same-sex marriages until the state legislature acts, but the legality of those 64 marriages and the status of marriage equality throughout the state remains in limbo to this day.

That may soon change, as Santa Fe Mayor David Coss (D) and City Councilor Patti Bushee are calling on the City Council to adopt a resolution clarifying that same-sex marriage legal. Coss noted that his daughter is gay and he looks forward to the day he can walk her down the aisle. City attorney Geno Zamora determined that since nothing prohibits same-sex couples from obtaining marriages, then same-sex marriage must be legal. Oddly, the Santa Fe County Clerk, Geraldine Salazar, was not included in this new push, and she has said she still will not offer licenses until the state acts. Thus, even if the Santa Fe City Council acts, it may not change anything in the short term.

Still, this renewed visibility may be enough to awaken the sleeping giant. Any county clerk in the state could decide at any moment to begin offering same-sex marriage licenses again, and hypothetically, nothing under the law could prevent them from doing. State Attorney General Gary King (D) offered guidance in 2011 that same-sex marriages from other states should be recognized in New Mexico. It makes sense that marriages performed in New Mexico would also be recognized in New Mexico.

Justice

Four Ways The Supreme Court Could Knock Out Proposition 8


As ThinkProgress explained this morning, the question of how supporters of equality win the Supreme Court case against the anti-gay Defense of Marriage Act is almost as important as the question of if they win. The same applies to a companion case that will be argued next Tuesday challenging California’s Proposition 8, Hollingsworth v. Perry. Here are four different ways that the justices could eliminate this anti-gay ballot initiative, ranked from most to least desirable:

  • Marriage Equality For All: The Constitution says that “[n]o State” may “deny to any person within its jurisdiction the equal protection of the laws.” That means all fifty states. So the correct way for the Supreme Court to decide Perry is to announce that marriage discrimination against same-sex couples is not allowed in the United States. Period.
  • Marriage Equality For Some Now, Marriage Equality For All Later: Although the law is clear that anti-gay discrimination is unconstitutional, it is far from certain that there are five justices prepared to bring Alabama into compliance with the Constitution, even if they are ready to restore marriage equality in California. To thread this needle, the Ninth Circuit offered a one-state solution that abolishes Prop 8 but does little to advance gay rights elsewhere. The Obama Administration proposed what now amounts to a nine-state solution, upgrading states with civil unions into full marriage equality states but leaving until another day states like Alabama. Ultimately, however, the most important question is not how may states are directly impacted by the Court’s decision in Perry, but whether the justices use the magic words “heightened scrutiny.” If they hold that anti-gay laws are subject to such scrutiny, it would mean that all discrimination against gay people will be treated with great skepticism by the judiciary — including any state law permitting marriage discrimination.
  • A Good-For-This-Ride-Only Opinion: As we explained this morning, Justice Kennedy wrote two of the most important gay rights decisions in the Supreme Court’s history, but he wrote both of them very narrowly. It is possible that he will want to do the same in the Prop 8 case, striking down California’s anti-gay ballot measure without doing much else to advance the cause of marriage equality. Indeed, this is more or less the approach that the Ninth Circuit took in its opinion.
  • The Jurisdiction Dodge: As with the DOMA case, the Prop 8 case presents a somewhat unusual jurisdictional issue — whether any court has the authority to hear an appeal to the trial court’s decision striking down Prop 8. Judge Vaughn Walker, the trial judge in this case, issued a very broadly worded injunction: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing” Proposition 8. Thus, if this injunction remains in effect, even because no court can claim the authority to narrow or vacate it, California will likely become a marriage equality state once more. The problem, as Marty Lederman points out, is that it is not entirely clear that Walker had the authority as a district judge to issue such a sweeping injunction. For this reason, in addition to the fact that it is better to achieve marriage equality on the merits than on a procedural technicality, a decision kicking the case on jurisdictional grounds is not a very desirable outcome.

The Craziest Argument Proponents Of Prop 8 Are Using To Defend Inequality

The legal team defending Proposition 8, California’s ban on same-sex marriage, has submitted a reply brief, a final written argument before next week’s oral arguments at the Supreme Court. The brief reiterates many trite arguments — notably, that opposite-sex marriage can only be defined as “man and woman” because it is important for “responsible procreation,” a rationale that simply dismisses how all the same-sex couples raising children would benefit from marriage.

Obviously, this argument is quite weak because it does little to account for why the government still allows opposite-sex couples who cannot have children to marry. However, this brief offers an outrageous new argument that attempts to justify this inconsistency:

Even if some society (implausibly) desired to mandate that all married couples be willing and able to procreate, such a policy would presumably require enforcement measures — from premarital fertility testing to eventual annulment of childless marriages — that would surely trench upon constitutionally-protected privacy rights. And such Orwellian measures would be unreliable in any event. Most obviously, many fertile opposite-sex couples who do not plan to have children may have “accidents” or simply change their minds. And some couples who do not believe they can have children may find out otherwise, given the medical difficulty of determining fertility. Moreover, even where a couple’s infertility is clear, rarely are both spouses infertile. In such cases, marriage still furthers society’s interest in responsible procreation by decreasing the likelihood that the fertile spouse will engage in sexual activity with a third party and by strengthening the social norm that sexual relationships between men and women should occur in marital unions.

Just to spell this out: marriage is apparently good for couples who can’t have kids because the still-fertile partner will be discouraged from cheating because of the chance for accidental pregnancies. This assumption that monogamy is based only on “responsible procreation” is insulting to all married couples regardless of their fertility, in addition to being silly and somewhat sexist too. Moreover, it completely compromises the very arguments proponents are trying to make. However they may be defining “responsible procreation,” caring for a child is not the same as being sexually monogamous. They have basically admitted that marriage is about a committed relationship and a family unit, as opposed to just making sure the source of the sperm doesn’t abandon the host of the egg it impregnates.

Of course the primary argument in this paragraph is problematic too. When it comes to marriage, proponents are happy to give the benefit of the doubt to opposite-sex couples who may be infertile so as not to impose on their right to privacy, but no such benefit can be offered to same-sex couples who are already raising children. As always, the implication is that biology trumps all other qualities of parenting, an insult to all couples who raise children through adoption, foster care, or surrogacy, regardless of their sexual orientation.

It’s amazing how far opponents of equality will bend over backwards to make sense of their own justifications for discrimination. They don’t seem to care how many families they insult in the process.

(HT: Kathleen Perrin.)

Over 50,000 Finnish Citizens Petition Parliament To Consider Marriage Equality

Earlier this month, a Parliamentary committee in Finland killed a same-sex marriage bill, but the nation’s citizens are not satisfied with its quick defeat. They launched a campaign through the country’s civic proposal website, and within one day, they had already collected the 50,000 signatures necessary to force Parliament to take action on the legislation. As a result, the full Parliament will now have to consider marriage equality.

Finland is the only Nordic country that does not already offer same-sex marriage — Denmark, Iceland, Norway, and Sweden all already provide it.

Justice

Tennessee Attorney General Says Bill To Force Colleges To Allow Discrimination Is Unconstitutional

Later today, a Tennessee House subcommittee is scheduled to consider a bill that would take away university police departments unless those institutions permit religious student organizations to engage in anti-gay discrimination. The bill arises from a conflict between Vanderbilt University and anti-gay lawmakers led by state Rep. Mark Pody (R), who object to Vanderbilt’s policy which requires student organizations to accept “all comers” if they wish to be subsidized by the school.

Last week, however, Tennessee Attorney General Robert Cooper (D) threw cold water on Pody’s efforts with an official opinion explaining that the bill is unconstitutional, at least as-applied to private universities such as Vanderbilt. As Cooper’s opinion explains, private universities generally have a right to decide which student organizations they wish to be associated with, and that includes the right to take a stand against discrimination:

It is well established that the State may not condition continued receipt of a valuable state benefit (here, the exercise of the State’s police power to commission and maintain a police force) on a private institution’s compliance with an unconstitutional condition. . . .

As previously discussed SB1241 impacts a private university’s First Amendment right of free association and distinguishes between those universities that organize their student groups in conformity with SB1241 and those that do not. This classification thus impacts a fundamental right – a private university’s First Amendment right to free association – and would be reviewed under the strict scrutiny standard. The General Assembly has an interest in how the State delegates its police power to a private university. Even if that interest is compelling, the General Assembly cannot assert that interest through an unrelated requirement that a private university abandon its right of free association.

Cooper also concludes that Pody’s anti-gay law would be constitutional as-applied to public universities, because Tennessee is allowed to decide that it does want to associate itself and its universities with anti-gay discrimination. This conclusion, however, is likely not correct. Just as the federal government cannot discriminate against gay couples when it doles out marriage benefits — that’s why the Defense of Marriage Act is unconstitutional — a state government also cannot form official groups that engage in anti-gay discrimination. Thus, to the extent that a student group at a Tennessee university is an arm of the state itself, such as group is not permitted to engage in anti-gay discrimination.

Chipotle Cancels Sponsorship of Utah Boy Scouts Event

A day after admitting that its sponsorship of the Utah Scout-A-Rama violated its corporate non-discrimination policies, Chipotle told ThinkProgress Tuesday that it has cancelled its support.

In an email, company spokesman Chris Arnold wrote:

By way of follow up, we have terminated our sponsorship of this event.

As I mentioned yesterday, community support decisions like this are made in a decentralized way and this one was inconsistent with our own policy. We believed that terminating the sponsorship and remaining consistent with our policy was the right thing to do, and we have reinforced our policy with the team that makes these decisions to try to prevent similar issues in the future.

The decision puts Chipotle back in line with its corporate charitable giving policy, which states that the company “will not support organizations that discriminate against a person or a group on the basis of age, political affiliation, race, national origin, ethnicity, gender, disability, sexual orientation or religious belief.”

District Of Columbia Prohibits Insurance Companies From Discriminating Against Transgender People

Today, the DC Department of Insurance, Securities, and Banking (DISB) issued a bulletin clarifying key protections for transgender people in the District of Columbia. The bulletin provides a clear directive to insurers that discrimination on the basis of gender identity or expression is not an acceptable business practice in Washington.

The bulletin prohibits insurance companies from some of the most egregious practices that have been used to lock transgender people out of health care coverage, including:

  • Denying, cancelling, limiting, or refusing to renew an insurance policy.
  • Limiting insurance coverage on the basis of gender identity or expression.
  • Denying coverage for a procedure that is provided for the treatment of other conditions of illness. For example, if a plan covers hormone therapy for some diagnoses, it cannot categorically exclude coverage for hormone therapy related to gender identity disorder or other transition-related diagnosis.

DC joins a growing number of states, municipalities, and employers who recognize that equal access to health coverage is supported by medical science, improves the health of transgender people, and does not significantly increase costs. Ending arbitrary insurance discrimination against transgender people simply supports what expert medical bodies have been saying for years: transition-related health care is medically necessary for many transgender individuals whose health and well-being depends on bringing their physical body into alignment with their gender identity, and determination of what care an individual patient needs properly rests with medical providers, not insurance companies.

Read the full bulletin and the joint announcement from the Mayor’s Office of Gay, Lesbian, Bisexual, and Transgender (GLBT) Affairs and the Department of Insurance, Securities, and Banking.

 

Claims That There Is No Research About The Effectiveness Of Ex-Gay Therapy Are True

Christopher Doyle

Advocates of so-called ex-gay therapy (often referred to as sexual orientation change efforts, or SOCE) are not pleased that the New Jersey legislature is seriously considering a ban on the treatment for minors. The increasingly vocal Christopher Doyle, who works with the infamously disavowed therapist Richard Cohen, penned a reaction for Christian Post asking, “Where is the tolerance” for people who are ex-gay? But his post actually helps outline many of the reasons nobody humors ex-gay therapy.

For example, he reiterated the canard that sexual abuse causes people to be gay:

That’s right, even if your child was sexually abused by a pedophile such as Jerry Sandusky and develops homosexual inclinations as a consequence, he/she may not be able to receive Sexual Orientation Change Effort (SOCE) therapy from a highly educated and skilled professional counselor, social worker, or psychologist. Why, you ask? According to the office of Massachusetts State Representative Carl Sciortino (D), because SOCE is an “archaic vestige of homophobia” and should be banned.

This argument is actually just an inverse of conservatives’ tired claim that gay men are more likely to be pedophiles. Because boys are often the victim of abuse in high-visibility institutions like the Catholic Church, the Boy Scouts of America, or athletic teams and their abusers are male, conservatives conclude that the perpetrator must be gay, even though pedophilia has nothing to do with sexual orientation. Likewise, ex-gay advocates claim that any boy who was once abused by a man and later realizes he is gay must have somehow been swayed or corrupted by the abuse itself. There is nothing to reinforce this conclusion, however, except conservatives’ ability to prey on the vulnerability of these traumatized young people.

Doyle goes on to claim that there is no research available about the outcomes of ex-gay therapy for adolescents:

The problem with this conspiracy is this: There is NOT ONE scientific study that contains any hard data on the outcomes of SOCE for adolescents. Not one!

So when I contacted the offices proposing a ban on SOCE therapies and asked them to cite studies that show “harmful” outcomes for adolescents, they could only point me to position statements from liberal trade organizations, which are known for their one-hand clapping viewpoint, strictly pro-gay and anti-ex-gay. If these organizations were made up of objective scientists that looked at all the evidence, such legislation would not be allowed anywhere.

Doyle unsurprisingly demonstrates a complete ineptness for understanding scientific rigor. His claim is not entirely wrong: there is not one scientific study that contains any hard data on the outcomes of SOCE for anybody. That’s because all of the studies on ex-gay therapy have found that it doesn’t have any effective outcomeseven studies done by researchers who are trying to advocate for the practice.

Read more

Chipotle Violates Its Nondiscrimination Policy To Sponsor Utah Boy Scout Event

Chipotle Mexican Grill will sponsor the Utah Scout-O-Rama, the annual fundraising gala for the Great Salt Lake Council — the largest council in the Boy Scouts of America and the leading voice within the BSA against lifting the nationwide ban on LGBT Scouts and leaders. And a spokesman confirms that the company’s contributions to the event are in direct violation of its own policy against sponsoring groups that discriminate.

The Salt Lake Tribune reported Friday that, while contributions to the event have dropped from $70,000 to just $8,000 due to the pro-discriminatory policies of the organization, one of the few sponsors supporting the event is Chipotle. The article quoted company spokesman Chris Arnold defending the move, telling the paper: “In Salt Lake, the Scouting institution is very strong, and it is our chance to connect with customers in that community,” but noting that the company “would like to see” BSA “in a place that’s more inclusive than where they are now.”

A ThinkProgress review of the company’s charitable giving policies found that Chipotle’s guidelines explicitly states that the company “will not support organizations that discriminate against a person or a group on the basis of age, political affiliation, race, national origin, ethnicity, gender, disability, sexual orientation or religious belief.”

ThinkProgress asked Arnold about the obvious contradiction. In an email, he conceded that the decision does violate company policy but said they were going to sponsor the event anyway:

We have built our brand largely by reaching out to people on a grassroots level and have done that working with a variety of community groups around the country, including school groups, youth sports, pride events, music festivals, food events and farmers’ markets, among many others. Our intention in doing that isn’t to endorse the policies of those groups, but rather to reach individuals (in this case the scouts themselves) through groups that are important in a given community. These decisions are made by a team of people around the country with the intention of connecting our restaurants with people in those communities.

That being said, this decision is not consistent with our own values, and we have used this opportunity to reinforce those values with the team that makes those decisions for us.

He added that Chipotle’s “support for this event is limited to coupons for volunteers and participants and was an effort to connect with those individuals, not to endorse any Boy Scout policies.”

In other words, the company is willing to compromise its values by ignoring its own policies when it thinks it might help sell more burritos to young Utahns.

Update

The headline has been corrected to accurately reflect the type of support Chipotle is providing — coupons, rather than direct funding.

Update

Chipotle told ThinkProgress Tuesday that it has pulled its sponsorship of the event.

Justice

Four Ways The Supreme Court Could Knock Out The Defense Of Marriage Act


Next week marks a rare moment in the Roberts Court’s history, an opportunity for this Supreme Court to actually make the law better than it was before they decided to weigh in on an issue. Although Justice Anthony Kennedy, the Court’s ostensible swing vote, is a hardline conservative on campaign finance, health care and corporate immunity to the law, his record on gay rights is relatively moderate. Kennedy authored two of the most important gay rights decisions in the Court’s history and is viewed as a likely vote to strike down the anti-gay Defense of Marriage Act.

As with so many things involving the Supreme Court, however, the devil is in the details. The Court’s decision in the DOMA case, United States v. Windsor, could extend the Constitution’s promise of marriage equality to all Americans, but it could just as easily reach a more narrow result or even sow significant seeds of confusion in the the law governing married couples. Broadly speaking, here are four ways the Supreme Court could halt DOMA, arranged in order from most desirable to least desirable:

  • Marriage Equality For All: The simplest, and most obvious solution, is for the justices to just follow the Constitution. The Constitution guarantees “the equal protection of the laws” to all people within the United States, and this guarantee is most robust when applied to groups that have experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” As LGBT Americans are undoubtedly such a group, the Court should simply strike down all marriage discrimination laws and declare that every state must come into compliance with the Constitution.
  • Marriage Equality In New York, Punt On Alabama: Although marriage discrimination cannot be squared with the Constitution, Justice Kennedy has a history of deciding gay rights cases on very narrow grounds. Neither of his two leading gay rights opinions followed the ordinary framework applied to laws that deny equal rights to a group historically subject to irrational prejudice, instead relying on novel and narrow reasoning. For this reason, it is possible that the Court will strike DOMA — thus extending federal marriage rights to same-sex couples — but punt on the larger question of whether every state must comply with the Constitution. If this happens, a key question is whether the justices apply “heightened scrutiny” to DOMA, a kind of skeptical constitutional analysis that will make it very difficult for any anti-gay law to withstand court review in the future.
  • No Jurisdiction: Easily the messiest way the justices can resolve this case is by ruling that they do not have jurisdiction to hear it in the first place — a real possibility in light of the fact that they scheduled 50 minutes of argument time on the question of whether the Court has jurisdiction. If the answer is “no,” the result could be a big, sloppy mess. Normally, when the Supreme Court decides that it lacks jurisdiction over a case, it also holds that the case should never have been brought in federal court to begin with. This case, however, presents an usual circumstance where the Supreme Court may not have jurisdiction to hear an appeal even though nearly everyone agrees that the trial court that sided with the plaintiff challenging DOMA was within its lawful authority when it did so.Because the circumstances of this case are so unusual, it’s not entirely clear what happens if the Court holds that they lack jurisdiction. One well-known attorney told ThinkProgress that it would mean DOMA is invalid in New York and New England, where federal appeals courts struck it down, but valid elsewhere. Professor Marty Lederman says the answer depends on why the Court concludes it lacks jurisdiction, but one possibility is that the administration could simply cease enforcement of DOMA “in the absence of any possibility of judicial resolution.” This is obviously a messy solution, and it is one that would lead to DOMA awkwardly lurching back to life if an anti-gay president takes office in the future.
  • The Tenth Amendment Nonsense: The First Circuit’s decision striking down DOMA includes an odd states’ rights section that resembles some of the arguments conservatives used to challenge Medicaid. This kind of argument could resonate with Justice Kennedy or even Justice Clarence Thomas, who has previously described an anti-gay law as “uncommonly silly.” Indeed, if all five conservatives embrace this view, they could potentially do significant damage to the social safety net under cover of a decision that most progressives would celebrate. Nevertheless, this outcome is unlikely, as at least one member of the conservative bloc is unlikely to join any pro-gay decision.
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The Morning Pride: March 19, 2013

Welcome to The Morning Pride, ThinkProgress LGBT’s daily round-up of the latest in LGBT policy, politics, and some culture too! Here’s what we’re reading this morning, but please let us know what stories you’re following as well. Follow us all day on Twitter at @TPEquality.

Katie Herzig

- The Vermont House of Representatives has approved a bill that would require out-of-state companies to offer equal healthcare benefits to same-sex couples.

- The video posted online promoting the National Organization for Marriage’s march next week has been pulled from YouTube because the artist whose music NOM used, Katie Herzig, supports marriage equality and filed a copyright claim.

- The ACLU has warned a school to stop discriminating against its LGBT students, including censoring announcements for its Gay-Straight Alliance and imposing an anti-trans dress policy for prom.

- Folk singer Michelle Shocked told a San Francisco concert crowd that “God hates fags” and now she’s losing gigs.

- Richard O’Brien, who wrote the the Rocky Horror Show way back in the day, has been taking estrogen for about 10 years and identifies as “30 percent woman.”

- Female UFC fighters are concerned about having to go up against Fallon Fox because she’s transgender, fearing she might have unfair advantages from her male development earlier in life.

- Who doesn’t love a sweet flash mob wedding proposal? This one’s from Brazil:

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