CONFESSIONS OF A COMMENTATOR: RECOGNIZING ONE'S OWN EXCLUSION OF RACE AND ETHNICITY FROM SEXUAL ORIENTATION SCHOLARSHIP

Barbara J. Cox*

I am somewhat uncomfortable participating on this panel in the role of commentator. My discomfort comes from the fact that I just started reading the recent literature about race, ethnicity, and sexual orientation after Frank Valdes1 asked me to be a member of this panel. After agreeing to participate, I decided to look at my own scholarship, which discusses various gay and lesbian legal issues, and see whether it seemed "unduly disconnected" from issues of race, ethnicity, and class. I would like to share my discoveries in this essay and the thoughts that have come from reviewing my scholarship, that of the panelists, and the other literature that exists.

Before doing the research to prepare for this discussion, I had spent time thinking about the intersection, cosynthesis, or analogy between race, ethnicity, class, and sexual orientation. As someone who is somewhat familiar with fem crit, race crit and queer crit theories,2 I recognize that each and all of our many identities impact both on theory and practice in solving the issues that confront us.

Additionally, my first two articles paid close attention to issues of race, ethnicity, and class while discussing the needs of gay and lesbian families to obtain domestic partner (or as I called them then, alternative family) benefits. My first article on domestic partner benefits explored the many ways in which restricting the definition of family to those in traditional, marital nuclear families negatively impacted gay men and lesbians.3 Some of the issues I analyzed also showed that the negative impact was more severe for some members of the gay and lesbian community, particularly people of color. For example, I discussed Moore v. East Cleveland,4 which considered the constitutionality of a zoning ordinance that distinguished between nuclear and extended families. The court struck down the ordinance, noting that the "nation's tradition of family life includes uncles, aunts, cousins and especially grandchildren sharing a household along with parents and children."5 Even the United States Supreme Court recognized that restrictive definitions of family in zoning ordinances negatively impacted more people of color who more frequently than whites lived in extended families. My project was to show how those restrictive definitions also significantly impacted gay and lesbian families, and especially those gays and lesbians who are people of color.

My second article specifically explored how restricting family recognition to heterosexual, nuclear families or even two-person domestic partnerships had a particularly negative impact on poor and working class families, people of color, and gay men and lesbians who tend to form extended alternative families and oftentimes cannot fit within the restricted definitions used of "two adults....and their dependent children."6 I argued that the negative impact increases, oftentimes exponentially, when those affected are gay and lesbian people of color who are poor or working class.

The article concentrated on the perspectives of women and the impact of patriarchy on the subordination of women within many families.7 The article discussed alternative family rights in a context which included the perspectives of women of different races, classes, and sexual orientations. I felt these perspectives were necessary to any "meaningful critique of the accepted family definition because lesbians, poor and working class women, and women of color form families outside the traditional definition more often than do heterosexual, white, middle-class women."8

I was concerned in both articles about the impact of family definitions on poor and working class ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 1--------------------------------------- people, recognizing in both situations that the impact of racism in our society has led to a disproportionate percentage of people of color being trapped in the economic underclass. I was particularly concerned with the restriction of family benefits to the traditional nuclear family because that meant that benefits which were intended to provide economic support to families were denied to these alternative families which compounded their financial problems.

In the past four years, my scholarship has focused on same-sex marriage and conflicts of law. There has been much disagreement among lesbian and gay activists and scholars about whether the gay and lesbian community should seek the freedom for same-sex couples to marry. Some of the objections raised by various scholars, including Darren Hutchinson,9 Nancy Polikoff,10 and Paula Ettelbrick,11 have been that marriage would simply provide more benefits to those persons in our communities who are middle- or upper-class and would not address problems of gay and lesbian people who are poor or working class.

I disagree with that perspective. The ideas explored in my domestic partnership articles indicate that obtaining the freedom to marry for gay and lesbian couples may result in providing significant economic benefits to the poor and working class members of our communities. It is true that marriage may negatively impact some people who are receiving government benefits because their spouse's income and property would then be imputed to their own in determining benefit eligibility.12

But it is equally true that members of the working poor and working class who would be eligible for family health insurance, educational, and other benefits if they were married, would obtain significant benefits from being able to choose whether marriage is consistent with their own views of their relationships.13 Additionally, because many of the poor, working class, and middle class do not have access to lawyers to draft documents to protect their relationships and may be unaware or unable to get advice on how to limit the negative effects of a heterosexist society on their lives, they may find that marriage will provide them with the same automatic protections that are currently afforded to other married couples. They would not have to spend scarce resources having wills, powers of attorney for property and health care, and other documents drafted to protect their families. The regime of protections that currently recogize and protect marital relationships without necessitating any additional documents would mean added protections for many of these families.

To me, it is unimportant where one falls when discussing this and other issues. The points made by all are valuable to consider. What is important is that we have the conversation--meaning that when discussing the pros and cons of seeking the freedom to marry for same-sex couples, we must consider those pros and cons for all members of the gay and lesbian community, not just those who are white and economically advantaged.

The other time that my writing centered on how issues facing gay and lesbian families (my primary focus) are impacted by recognition of racism, ethnocentrism, classism, able-bodism, and other expressions of privilege was in working on a book proposal with Frank Valdes and Ruthann Robson. We were preparing a proposal for a book on sexuality and sexual orientation, and both Frank and Ruthann were very concerned that our material include the perspectives of and issues facing gays and lesbians who are poor, working class, people of color, disabled and the numerous combinations of each. I am reluctant to admit that, while I immediately agreed with the need to include such perspectives and materials, it was Frank and Ruthann who made that a primary focus of our book proposal, not me. Going along with the idea of having an inclusive perspective when someone else raises it is not and cannot be enough.

In preparing for this panel discussion, I have realized that perhaps I too readily accept my white privilege which permits me to wait for someone else to ask whether I am including these questions and perspectives in my scholarly inquiry. I have permitted that privilege to limit my focus and disable me from being among those who were primary in creating space for the dialogue that is occurring today. As a white person in a racist society, I am granted insider status, despite my identity as a lesbian, a woman, a recovering drug addict and alcoholic.

I can recognize my white privilege by many different indicia. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 2---------------------------------------

First, when I was chair of the AALS Section on Gay and Lesbian Legal Issues, the programs that I helped to organize for the 1991 AALS conference did not raise the questions that are being asked today. I could use the excuse provided by Frank Valdes in his recent Queer Margins, Queer Ethics article that gay and lesbian scholarship was in an essentialist first stage,14 and that "postmodern insights of multiplicity and intersectionality appeared relatively recently on the legal scholarly scene -- the late 1980s and early 1990s -- and thus perhaps tardy for meaningful incorporation into ongoing first-generation projects or agendas.15 But that would be primarily an excuse, not an honest answer for why I did not organize a panel such as this one for the 1991 annual conference.

Second, I have come recently to reading the scholarship on race, ethnicity, and sexual orientation that has been written by members of today's panel and other authors, many of whom are in this audience. I believe it is white privilege that has allowed me not to notice how our communities' discussions of gay and lesbian liberation have consistently not recognized that the questions and answers may be different depending on what other communities to which one belongs. When I look at gay and lesbian issues with the privilege given due to my whiteness, I do not have to recognize that the questions I ask and the answers I envision may not work for all members of the gay and lesbian community. White privilege permits me to retain my ignorance and not even recognize it as ignorance until appealed to by my colleagues. For example, I am embarrassed to admit that I had to ask Frank to give me a list of articles to read to prepare for this panel. I have now read most of them and recognize how my white privilege allowed me to be unaware of their existence.

Third, I have shared white privilege with many of the other chairs of this section. We have been, in large part, mainly white academics who focus on gay and lesbian issues. The question that bothers me (once I am conscious enough to ask it) is why is it most often a person of color who organizes a discussion like this one. The same can be said for other outsider groups as well--when a woman becomes chair, she oftentimes sees different issues and sees the same issues differently because she is a woman; when a lesbian becomes chair or when a person with a disability becomes chair, they too see differently than the privileged ones before them. So too in this instance: when a Latino gay man became chair, he asked why it is that we are not discussing race and ethnicity at the same time we were discussing sexual orientation.

Because privilege can often blind us to questions that are obvious to those who are not blind, those of us with white privilege many times wait until a person of color asks us to think about race, ethnicity, and sexual orientation. We do not take responsibility ourselves to see what so clearly disturbs our colleagues. Secure in our privilege, we too often limit our vision of the things that need to be discussed, the ways they need to be discussed, and the questions and answers that come from discussing them.

I find it difficult to write this essay and take responsibility for having white privilege. I feel a need to try to explain to you, and perhaps to myself, that I am someone who has tried to recognize that I have white privilege, learn what it means both to have that privilege and not to have that privilege, and spend my energy both diluting the power of that privilege, as well as seeking understanding of the ways in which it clouds my vision. I want to try and explain to you that I have done much work on recognizing my white privilege and my racism, that I have asked myself to learn and not wait to be taught by people of color, that I have tried to understand that my work is to help other white people recognize the privilege that we receive from our whiteness and help to destroy or, at least, dilute it.

But even while I want to explain all that, to show how some of my scholarship does include a clear recognition of issues of class, race, and ethnicity in structuring ways to address the legal issues facing the gay and lesbian community, I too must be honest in recognizing that I have had the choice to include or not include, a choice that is always based on privilege.

What I wish for myself is that when Frank had called me to discuss this panel, I would not have needed to ask for a set of ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 3--------------------------------------- reading materials. Instead, I would have read them already, knowing that I needed to be aware of the perspectives offered in that discussion. I feel comfortable claiming a certain expertise and awareness of the legal literature discussing the issues facing the lesbian and gay community. But my comfort has been shaken because I was unaware of an entire portion of that literature. While I know that, thankfully now due to its vast expression and development, I cannot have read everything, I also know that, for most other legal issues facing the gay and lesbian community, I have at least a passing acquaintance with the literature. I could once again try to excuse myself by saying that I can extrapolate from the fem/race/lat/queercrit reading on some of the issues that have been discussed by these authors. But that would be a weak excuse, and would ignore that there were many issues that I had not considered and much knowledge that I did not have. I have now read most of that literature and recognize how white privilege allowed me to lack knowledge of its existence.

My hope is that all of us who participated in the discussion at the AALS conference, and all of us who hear the tape of that conversation, and all of us who are reading or writing for this symposium issue will take heed of how important this discussion is. We need to change the whiteness of gay and lesbian scholarship. We need to recognize its monolithic viewpoint. We need to make sure that the next time we discuss these issues, two things have happened. First, we need to make sure that the articles, the symposia, the theory cannot all be listed on a single sheet of paper, because many of us will have delved into the questions that have been asked today and the questions that remain to be asked and discussed.16 Second, we need to ask ourselves to alter our own scholarship to eliminate white privilege from it; to eliminate a notion that, when we talk of issues concerning gay and lesbian liberation, we are only talking about liberating white people from the heterosexism of our society. If we do what these panelists, moderator, and organizers ask of us, then we can really talk about liberation for the gay and lesbian community in a way that is inclusive while recognizing our differences as well as our similarities.

Endnotes

* Professor of Law and Associate Dean for Academic Affairs, California Western School of Law.

1 Professor of Law, University of Miami, Chair of AALS Section on Gay and Lesbian Legal Issues, and organizer of this panel.

2 See generally, Frank Valdes, Queer Margins, Queer Ethics: A Call to Account for Race and Ethnicity in the Law, Theory and Politics of "Sexual Orientation," ___ Hastings L.J. ___, nn. 3-19 and text (1998)(forthcoming).

3 Barbara J. Cox, Alternative Families: Obtaining Traditional Family Benefits Through Litigation, Legislation and Collective Bargaining, 2 Wis. Women's L.J. 1 (1986)[hereinafter referred to as Alternative Families].

4 431 U.S. 494 (1977).

5 Cox, Alternative Families, supra note 3, at 17.

6 Cox, Choosing One's Family: Can the Legal System Address the Breadth of Women's Choice of Intimate Relationship?, VIII St. Louis U. Pub. L. Rev. 306 (1989)[hereinafter referred to as Choosing One's Family].

7 Id. at 307.

8 Id.

9 Darren Lenard Hutchinson, Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory and Political Discourse, 29 Conn. L. Rev. 561, 585-602 (1997).

10 Nancy D. Polikoff, We Will Get What We Ask For: Why Legalizing Gay and Lesbian Marriage Will ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 4--------------------------------------- Not "Dismantle the Legal Structure of Gender in Every Marriage," 79 Va. L. Rev. 1535 (1993).

11 Paula Ettelbrick, Since When Is Marriage a Path to Liberation?, in LESBIANS, GAY MEN AND THE LAW 401 (William B. Rubenstein ed., 1993); Paula L. Ettelbrick, Wedlock Alert: A Comment on Lesbian and Gay Family Recognition, 5 J.L. & Pol'y 107 (1996).

12 Ruthann Robson, To Market, To Market: Considering Class in the Context of Lesbian Legal Theories and Reforms, 5 S. Cal. Rev. L. & Women's Stud. 173, 182 (1995); Hutchinson, supra note 9, at 599 n. 153.

13 Cox, Choosing One's Family, supra note 6, at 310, indicating that family health insurance benefits for a working-class, lesbian family of 6 cost that family $2400 per year to replace benefits that would have been provided by one adult's employer if the employer had not restricted coverage to traditional families.

14 Valdes, supra note 2, at ___ (forthcoming)

15 Id.

16 Id. at n. 12, listing the following scholarship of this "internal racial critique." Hutchinson, supra note 9; Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay "Victories," 4 Law & Sexuality 83 (1994); Cynthia Petersen, Envisioning a Lesbian Equality Jurisprudence in LEGAL INVERSIONS: LESBIANS, GAY MEN AND THE POLITICS OF LAW 118 (Didi Herman & Carl Stychin eds., 1995); Isabelle R. Guning, Stories from Home: Tales from the Intersection of Race, Gender and Sexual Orientation, 5 So. Cal. L. Rev. Women's Stud. 25 (1995); Mary Eaton, Homosexual Unmodified: Speculation on Law's Discourse, Race and the Construction of Sexual Identity in LEGAL INVERSIONS, supra at 46; Eric Heinze, Gay and Poor, 38 How. L.J. 433 (1995); Ruthann Robson, supra note 12.

RESPIRO LIBRE:1 COMING HOME TO A LATINA LESBIAN SELF:

Race and Sexual Orientation in Legal Scholarship

Remarks of Elvia R. Arriola

UNIVERSITY OF TEXAS SCHOOL OF LAW

Lesbian and Gay Section of the Association of American Law Schools Meeting

Friday, January 9, 1998, San Francisco, California

Good Afternoon. I feel I have been trying to have this conversation for such a long time. I can't help but feel emotional as I stand before you to have this discussion on race and sexual orientation in legal scholarship. I have been writing about and been involved as a feminist latina lesbian scholar for so many years. And for so many of those years, as I think back upon the environments or the conditions surrounding my work, I can't help but remember how alone I often felt because of the intersectional nature of my identity, as not only lesbian and feminist but also Latina. I remember for example, when I was

writing my very first law review article2--as I was coming out as a lesbian and also budding as a civil rights lawyer in the early eighties in New York City. At times I felt very connected to the gay and lesbian civil rights community I was coming to know personally and professionally through my progressive contacts. For awhile, after my post- graduate fellowship at the ACLU ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 5--------------------------------------- National Headquarters, I volunteered my legal services for Lambda Legal Defense and met wonderful people who helped me feel proud of the fact that I had the courage to come out publicly as a lesbian. But so many other times I felt disconnected completely from these same people; I felt the conspicuousness of my brown skin and Spanish surname when I sat in huge conference rooms as the lone minority among over two dozen other lawyers and activists, deliberating, for example, the litigation strategies for the then upcoming hearing by the Supreme Court in the Bowers v. Hardwick3 . I can't say that I completely understood then all of the reasons for my feeling disconnected from the mostly white male and a few lesbian lawyers seeking social justice in the courts. So I can't blame anyone other than myself, or the external forces of oppression that define this society in general, for my past experiences of alienation. When I look back on those years, I see myself as a talented budding constitutional lawyer who was very immersed in a "white studies" mentality, not really feeling the need to be aware of her Latina consciousness, and not sufficiently surrounded by people in her profession who shared her identity as a latina/woman of color and lesbian, to make me seriously consider the need to explore intellectually my lack of consciousness of myself as a Latina lesbian. I remember for example, a gentle critique a friend offered of my manuscript for my first law review article article, which advocated a move in the direction of emphasizing more for legal strategy equality-based theorizing as opposed to the risky right to privacy. She said to me, "I think it would be even better if you talked more about class." I both understood her critique and at the same time I didn't. Some part of me knew that she was right, that by emphasizing class I could get at issues of race and sexual orientation, but even if she was right--at the time, 1985, I didn't feel confident of being able to put all of that into words in a world that was still struggling with just possibly recognizing that homosexuals were people and that sodomy laws effected unjust discrimination.

So when I say I've been disconnected, I get uncomfortable because I am taken back to the years of loss, that were still very recent, and then I have to access memories that painfully remind me that in my white studies mentality I might have once thought I could ignore in my work the linkages between race, class, gender and sexuality, but in my life experiences I could not. It has been powerful institutional settings within which the rules of white male supremacy have been played out that reminded me--while I might closet the sexual orientation part of my self and escape some discrimination that way, I can rarely, if ever, escape discrimination because of my race and and my ethnicity.4 Even more than the wonderful writings on"intersectionality,"5 it has been those painful experiences of mistreatment because of the multiplicity of factors that define who I am that have taught me that becoming comfortable with the idea of multiple consciousness6 is a learned process in itself. Thanks to my recent involvement in Lat/Crit theory I feel I have been able to come home to that part of myself, and to be resolved that I can never approach any subject, on gender or sexuality or whatever, without a relentless commitment to the ways in which those subjects intersect with race and class.

Of course, while it may be obvious that I as a Latina lesbian feel the need to embrace the perspective of multiple consciousness, one might legitimately ask for this panel today, why is it important to non-minority gay and lesbian scholars? Simply, it's a matter of statistics and social justice. Claims are being made that by the early part of the next century, this nation will be about forty percent minority. If those projections are accurate, our scholars of gender and sexuality need to be asking themselves---are the materials we use today, or the models of analysis we rely upon when we talk about sexuality, gender and sexual orientation, or the categorizations of history, theory and identity we have become comfortable with, adequate for preparing our future lawyers to handle the legal and social problems of a nation that is so racially defined? My sense is that some of you might be able to say "yes, I think I am preparing my students/future lawyers for that kind of world." But my guess is that most of us in this room cannot say yes. That is because the perspective of multiple consciousness, as I have stressed above, essentially requires that one get out of his/her comfort zone, meaning learning to juggle the discourse and the feelings surrounding the web of intersections that we are, that life is, that our identitites manifest in our relationships, in the classroom, our professional associations, and in our scholarship.

Well, quite obviously, this is not an easy task, although I do think that the more we explore the interconnections within our personal identities and some of our most significant relationships the task becomes easier. Multiple consciousness may mean ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 6--------------------------------------- accessing my /our experiences of interconnection to everything I see as being the parts/selves in me--for example, my class, my education, that of my parents, my religious/cultural/moral/spiritual values, my race/color/ethnicity, my current professional status, my privileges and disadvantages as a woman, of color, lesbian, professor, wage-earner, property owner, citizen, voter and so on. While potentially daunting, it can also be quite entertaining as one comes to terms with the consequence of accessing one's multiple selves--a more whole sense of one's self. Here I must offer the powerful words in Natashia López's poem Trying to be Dyke and Chicana7 when she says: Dyk-ana/Dyk-icana/what do i call myself/people want a name/a label a product/what's the first ingredient/the dominant ingredient/.... call me Chicana/walking with whiteness/ into more whiteness/feeling my darkness/ call me Chicana/annoyed with being called Spanish /wishing whiteness would understand/call me Chicana/call me Dyke/Chyk-ana. But as a matter of practice, for our teaching and our scholarship, what does it mean to commit oneself to a relentless view of sexuality as intimately connected to issues of race, class, gender, abilities, culture, and so on? What does it mean to present one's work with at least a modicum of sensitivity to that need for a relentless view of interconnectedness? How does this question affect my own identity? How does it affect how I relate to others in this profession, this academic community, this work I do as an activist lawyer, teacher and/or scholar? Let me offer the example of the classroom setting. These kinds of questions are always close by when I teach a seminar called gender, sexuality and the law. If my enrollment is higher on white than on women of color (as it is becoming so with the impact of Hopwood8 at the University of Texas), I know I'm going to have a really tough time when I am working with a syllabus that is stressing the importance of race. My students may manifest an unconsciousness resistance to the material and/or to my own identity. Whereas when I have a more racially and sexually diverse group of students the reading materials and the ability of students of color to identify with the issues help us all carry an easier load as we discuss the potentially divisive discourse of race and sexuality.

I think these questions also encourage us to look at the aspect of privilege. Ask yourself, what is the perspective that dominates the discourse on gender and sexuality now? It is a discourse that speaks to my experience and that of others who are gay, lesbian, transgendered people of color? I know that the question of privilege as applied to this subject is bound to trigger for many of us in this room uncomfortable feelings, possibly defensiveness. To speak the truth does engage those risky emotions. And yet this critique is not about trying to alienate those who have been so important to my professional development, or those whom I see as my coalitional allies. I am reminded here, for example, of the importance of this perspective when I was asked to prepare materials for a panel on race and sexual orientation for the 8th annual Critical Race Theory workshop. In that setting, a similar issue was being raised, but now it was about the heterosexual dominance of the race critique having to confront the ways in which "the queer question" kept being sidetracked, derailed, or subverted because race-crits needed to have their consciousness raised around sexuality and the cultural fear of public sex talk. 9 Well for us here today, the privilege we have to confront is about race, about whiteness, and although it too can trigger discomfort and defensiveness for people, we are fortunately not without tools and models of self-critical analysis--offered by scholars like Peggy McIntosh who introduced the grid of white privilege,10 or Fran Ansley's "whose above and below the line"11 as a teaching tool in the classroom, or the work of Stephanie Wildman on the importance of revealing privilege12 in the legal academy.

Because the subject of sexual orientation and the law has "made it" in recent years, we can celebrate the fact that we don't have to hide the subject behind titles like "human rights law." But the question for our future work centers on whether or not we are in our litigation, our writing and our teaching truly addressing the totality of the experience of those who do not have the privilege of being at the forefront of "queer theory and law." Does your work, for example, speak to the intelligent, well-read activist person of color who might be male or female and lesbian or transgender? And for this we have to ask, what is the starting point of analysis for those who are at the forefront of that kind of law?

If we look at this question from the perspective of privilege, we must know that the starting point of analysis of the lawyer, the academic and the lobbyist is vastly different from that of the activist, or the person on the streets, or the health care practitioner of color helping clients of color in a community clinic, even though there may be common grounds upon which the activist and the academic stand. Think of the critical activist saying to you, "As you write, please look at your privilege and the assumptions ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 7--------------------------------------- you make from your own perspective." If you cannot write or do not speak of their experience, at least adopt the scholarly convention of acknowledging that one's work may be limited by the choice of a narrow framework of experience, topic, or the perspective of the author's personal identity. What I am talking about here is confronting the cognitive dissonance that may resonate in our imagined person of color who is queer and activist and who then picks up our materials, or decides to visit our class one day. If they look at our materials and don't see themselves or their experiences, then our teaching materials are limited. If the assumptions a writer or teacher makes about any point on gender and sexuality does not create the possibility for their experience---if, for example, I cannot feel myself reflected in the writings as a Chicana lesbian, then those materials are limited; and our challenge is not to discover who is wrong and who to blame, but rather, how can we change that?

Our task is then, to ask ourselves how we should define our grids of analysis when we do our teaching and our writing about either race or sexual orientation. If the person of color would have to say, "you don't know my world," then that scholar is disadvantaged in the relevant, Latina/o studies, Asian-American studies, Transgender studies, African-American studies, Native-American studies, and so on, in order to fix that. And if you are writing about issues that do affect queer people of color, but the assumptions you make in your analysis don't speak to the person of color, then you are in no position for uttering the word "we" when talking about the "gay and lesbian or queer community."

I was recently urged to reconsider the critical sense of this problem when I learned of a recent case which is being battled by a mostly Latina lesbian- managed and organized arts center in the city of San Antonio, Texas, which was recently the subject of a homophobic campaign by members of the Christian Coalition to have the City Arts Department cut their funding. As a multicultural organization the Esperanza (Hope) Center dedicates the arts to empower youth, gays and lesbians and poor women of color, especially the working poor who are sometimes refugees of violence in conflict-ridden parts of Latin America. They were targeted for distributing "pornographic" literature as they promoted a gay and lesbian film festival which focused heavily on the productions by and for lesbians of color. Here's the intersection dilemma which arose: the homophobic campaign was led not only by the Christian Coalition but supported by significant members of the wealthy white gay male owners of the San Antonio gay newspaper, who have been trying to displace Esperanza from the prominent leadership role it has had in the gay and lesbian community for over ten years. How's that for a theoretical question on how to draft a First Amendment/Romer v. Evans 13type of complaint? It is a targeting that is not just about an unpopular political group because of its association with gay politics, but an intersectional problem based on race, class, gender and sexual orientation. It is a tragic example of the divisiveness that will be exacerbated as long we pretend that the discourse of sexuality can be separated from the discourse of race, class and gender.

So let us be leaders in the political struggles of oppression by tending to these questions about the intersections between race and sexual orientation, so that we aid in those scholarly inquiries that will produce healing, community and a commitment to coalition, not divisiveness in the politics of identity.

1 Translate: Breathing freely.

2 Elvia R. Arriola, Sexual Identity and the Constitution, Homosexual

Persons as a Discrete and

Insular Minority, 14 Women's Rts. L. Rep. 263 (1988, 1992).

3478 U.S. 186 (1986).

4See Elvia R. Arriola, Welcoming the Outsider to an Outside Conference: Law

and the ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 8---------------------------------------

Multiplicities of Self, 2 Harvard Latino L. Rev.397 (1997).

5Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A

Black Feminist

Critique of Antidiscrimination Doctriner, Feminist Theory and Antiracist

Politics, 1989 U. Chi.

Legal F. 139 (arguing against the notions that subordination can occur ,or can be analyzed, along

a single categorical axis such that legal theory erases the identity of

individuals who

experience discrimination at the intersection of race and sex, e.g., "black

woman." )

6 Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan.

L. Rev. 581 (1989)

(urging multiplicity as a way to enhance the essentialist voices in

feminist theory that tend to

silence the perspective of women of color).

7 in Carla Trujillo, ed., Chicana Lesbians: The Girls Our Mothers Warned Us

About (1991).

8 Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996) cert. denied ___

U.S. ___ (1996), 116

S.Ct. 2581 (1996).

9 Frank Valdes, [recent essay on public sex talk], 1 Univ. of Iowa J. of

Gender, Race and Justice

___ (1997).

10 Peggy McIntosh, White Privilege and Male Privilege: A Personal Account

of Coming to See

Correspondences Through Work in Women's Studies , in Leslie Bender and Daan ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 9---------------------------------------

Braveman,

Power Privilege and Law: A Civil Rights Reader 23 (1995).

11 This is a teaching tool Fran Ansley offered at a Society of American Law

Teachers'

Conference in the fall of 1993.

12 Stephanie Wildman, Privilege Revealed (1996).

13___ U.S. )___ (1996).


The Lack of Differences Between Gay/Lesbian and Heterosexual Parents: A Review of the Literature

Kevin F. McNeill

University of California, Riverside

Questions concerning this manuscript should be directed to the author via e-mail at: kevin-mcneill@worldnet.att.net.

Abstract

The (Lack of) Differences Between Gay/Lesbian and Heterosexual Parents: A Review of the Literature

A review of current demographics of families in the United States reveals that the traditional intact, two-parent family is yielding in prevalence to a myriad of other family forms (Flaks, Fischer, Masterpasqua, & Gregory, 1995). While impossible to portray accurately, it is estimated that somewhere between 3% and 10% of the adult male population in the United States identifies as exclusively homosexual (Patterson, 1995a; U.S. Bureau of the Census, 1983). If we extend these percentages to females, it can be estimated that there are between 7 and 15 million gays and lesbians in the United States today. Further extending these estimates to include the immediate family members (brothers, sisters, parents, and perhaps even children), reveals that at least 50 million Americans are either themselves homosexual, or have a close family member who is (Bozett, 1989; Miller, 1979) . While these estimates may be somewhat suspect, they do reveal that gays and lesbians are becoming significantly more prevalent in our society or, at least, more visible.

Lesbian Mothers

Lesbians have been bearing and raising children for a long time, and they choose to parent for many of the same reasons as heterosexual women (Pies, 1990). Yet, when a lesbian first expresses an interest in having a child, she is likely to encounter negative reactions ranging from confusion to outright hostility (Rohrbaugh, 1989). Institutionalized beliefs presume that childbearing is only to occur within the limited context of a heterosexual relationship. Homophobia and heterosexism are the institutional reflections of social values that create and maintain the status quo, and these also operate to present lesbian motherhood as an inherent contradiction (DiLapi, 1989). Although the American family is changing, it is clear that homophobia is still a widespread phenomena.
An examination of lesbian motherhood requires a look at the social context within which women as a group currently exist in the United States. It is important to recognize that, in addition to heterosexism, lesbians also face the oppression common to all women, particularly in the areas of employment and housing (DiLapi, 1989). Yet, research has indicated that both groups are still quite capable of raising their children in appropriate and healthy ways, and that significant differences do not generally e ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 10--------------------------------------- xist between them (Strong & Schinfeld, 1984). In fact, some findings suggest that there may be important and beneficial outcomes from being the product of a lesbian family, such as increased appreciations for diversity and expanded views of gender roles (Patterson, 1995b).
Previous research has also revealed that lesbian mothers are more similar than different from heterosexual mothers (Harris & Turner, 1986). This raises important sociocultural and psychological issues. Should continued research demonstrate the viability of these alternative family structures, it will necessitate the reformulation of currently accepted theories (e.g., social learning) which prescribe that healthy development requires opposite-sex parents for the tasks of identification and modeling (Flaks, Ficher, Masterpasqua, & Joseph, 1995).

Gay Fathers

The study of both homosexuality and fatherhood has increased dramatically in the recent past, yet the notion of "gay father" is a newly emergent figure in the culture and literature (Bigner & Bozett, 1989a; Bozett, 1989). Gay males who are also fathers are placed in a unique socio-cultural environment which is more complex than either that of the heterosexual or single homosexual male (Bigner & Bozett, 1989a). The process of identity development for the gay father requires the reconciliation of two seemingly polar extremes: that of the homosexual male and that of the father. Often, the attempt to combine these identities places gay fathers in a type of marginal existence between the two (Robinson & Skeen, 1982).
Often, the most difficult decision for gay males is not whether or not to disclose their homosexuality to society, but whether or not to do so to their children (Bozett, 1984). Their concerns center around the possibility that either their children will totally reject them, or will have diminished respect and affection for them (Bigner & Bozett, 1989a). In fact, there does seem to be some support for this (Bozett, 1988); however, other research has shown that disclosure of a homosexual identity may actually strengthen relationships between sons and their fathers (Miller, 1979).
Most research concerning gay fathers can be grouped according to whether or not a comparison group was used and, if so, the nature of that comparison group. Studies have been conducted where gay fathers were the sole focus of the study (e.g., Miller, 1979) and where they were compared to lesbian mothers (e.g., Wyers, 1987) or heterosexual fathers (e.g., Robinson & Skeen, 1982); additionally, one study (Harris & Turner, 1986) compared all four groups (gay and heterosexual fathers, as well as lesbian and heterosexual mothers). Few differences were found between groups in these studies, and no significant differences were found with regard to parental attitudes toward, or abilities in, child rearing and sexual orientation.

Children of Gay and Lesbian Parents

While most of the literature on child development has been based on those raised in heterosexual families, there is also a substantial amount of empirical literature regarding those raised by gay and lesbian parents (e.g., Gottman, 1990; Riddle, 1978). Much of this research is in response to the growing visibility of lesbian and gay families, much like the single parent family, as an alternative to the traditional heterosexual family. However, in contrast to the single-parent family, the increased visibility of the gay parent families has not lead to a corresponding increase of their acceptability (Steckel, 1987).
Negative stereotypes concerning homosexuals continue to abound, including fears that they will molest children and/or seduce them into their own "deviant" homosexual lifestyle (Riddle, 1978). Given this, it is not surprising that many heterosexuals, particularly heterosexual parents, are concerned about possible consequences of contact between homosexual adults and children. These fears continue even though the American Psychological Associations has declassified homosexuality as a psychiatric disorder, and provides clear evidence that the issue is far from resolved.
Research concerning the children of lesbian and gay parents has focused on such things as gender identity (Green, 1978), gender role development (Hoeffer, 1981), emotional development (Golombok, Spencer, & Rutter, 1983), intelligence (Kirkpatrick, Smith, & Roy, 1981), self-esteem (Huggins, 1989), and independence (Steckel, 1985). Much of this research is presented as a response to negative societal opinion, and sexual orientation of the parent continues to be a major issue in public policy formation (Patterson, 1992).

Sexual Orientation and Child Custody

Many gay parents are brought to the attention of authorities when a custody battle is being waged with an ex-spouse over their ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 11--------------------------------------- children. A gay parent seeking either custody, continuation of parental rights, or visitation privileges is generally at a legal disadvantage because of the subjective criteria used by many judges to serve the "best interests" of the child (Payne, 1978). It has been estimated that a lesbian mother's likelihood of obtaining custody of her biological children is less that 50% (Falk, 1989). The odds that a gay mother or father will lose or be denied privileges increases when the parent's sexual orientation is an issue in custody hearings (Hitchens, 1980). In fact, according to Polikoff (1986), a lesbian mother must portray herself as being as close to the All-American norm as possible -- the image of her ideal heterosexual counterpart -- and preferably asexual, if she is to have any chance of obtaining custody in a court dispute.
Few rights are as fundamental and accepted by society as the right of parents to raise children. Yet many courts have viewed the prospect of gays and lesbians as parents in such a negative fashion that they have refused custody to some parents based solely on their sexual orientation (Falk, 1989). Their reasons for doing this are varied, but generally center around the following alleged concerns: (a) that these parents are less mentally fit, (b) that they will molest their children, (c) that their children will be stigmatized by their peers, and (d) that their children are more likely to become gay or lesbian themselves (Falk, 1989; Kleber, Howell, & Tibbits-Kleber, 1986; Rivera, 1987). However, previous studies have revealed no significant association between sexual orientation and psychological characteristics relevant to parenting (Falk, 1989; Kleber, Howell, & Tibbits-Kleber, 1986; Knight, 1983; Patterson, 1994).

Themes

The available research seems to cluster into three areas: (a) studies focusing on parenting by lesbian versus heterosexual mothers, (b) studies focusing on parenting by gay versus heterosexual fathers, and (c) those investigating what consequences, if any, these alternative family units have for the offspring raised in them. This paper takes advantage of the apparent separation of these themes within the published literature, and focuses on each one separately. This trend is continued in the discussion, which focuses on and integrates each theme separately. A general discussion follows, which integrates the conclusions of studies across themes. Finally, implications for social policy and suggestions for future research are presented. Research Summaries

Parenting Styles of Homosexual Versus Heterosexual Mothers

Shavelson, Biaggio, Cross, & Lehman (1980). The researchers conducting this study expressed concern that there was no single, current, unifying theory in this area which has received overwhelming or even consistent support. As a consequence, Shavelson et al. (1993) sought to bring some cohesiveness to this area. An adjunct purpose was to explore heterosexual and homosexual women's(1) perceptions of themselves and of their parents in light of the relatively new concept of androgyny.
The sample used consisted of 26 self-identified lesbian women from the Idaho and Washington state areas, who were compared with a control group consisting of 26 self-identified heterosexual women from the same areas. All participants were administered the Schafer's Child Report of Behavior Inventory (CRBPI), and Bem's Sex Role Inventory (BSRI), as well as a structured interview. The resulting data were analyzed using multiple regression which computed a stepwise solution.
Although lesbian women tended to rate themselves higher on the masculinity scale, results indicated that no significant predictor or group of predictors could be isolated for lesbian women. Further, no set of parental behaviors or perceived sex-role characteristics differentiated lesbian from heterosexual participants. The researchers stated that this, especially when combined with the lack of agreement of previous research, can only lead one to conclude that the homosexual orientation in women does not have a singular etiology (Shavelson et al., 1980).

Pagelow (1980). Single mothers, regardless of sexual orientation, continue to have common concerns regarding child custody, housing, and employment (Pagelow, 1980). Using a phenomenological approach, the researchers sought to address and explore the attitudes, behaviors, and reported experiences of lesbian mothers, as compared to heterosexual mothers, especially as concerned the aforementioned areas.
The sample used in this study consisted of 23 self-identified single heterosexual mothers of 51 children, who were compared to 20 single lesbian mothers of 43 children. In depth interviews were conducted with each respondent, either face-to-face or over ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 12--------------------------------------- the telephone.
Results indicated that, compared to heterosexual mothers, lesbian mothers were awarded sole custody of their children less often. However, incidents of discrimination in housing, employment, and the collection of child support did not differ significantly between the two groups. It was found that lesbian and heterosexual mothers managed their lives and react to everyday stressors in very similar ways. Lesbian mothers did, however, tend to own their own homes and operate their own businesses at a higher rate than heterosexual mothers. The researchers explained this as a potential response to social pressure, whereby these mothers became more independent as a coping mechanism to their societal oppression.

Kweskin & Cook (1982). To measure the self-described sex role behaviors and ratings of ideal sex role behavior of children between lesbian and heterosexual mothers, Kweskin and Cook (1982) recruited 22 lesbian mothers and 22 heterosexual mothers to participate in their study. This group was further divided by sex of their child, resulting in 11 mothers of female children and 11 of male children for each group. All participants resided in a metropolitan area in the western United States, and no significant differences were noted between the groups on the variables of age, income, and educational level.
Each participant completed two Bem Sex Role Inventory (BSRI) questionnaires, one for self-description and one for description of ideal behavior in a child of a designated sex. The resulting data were then analyzed using chi-square tests.
Results revealed no significant differences between the mothers in descriptions of their own sex role behavior. Additionally, no significant differences were noted between groups in their rating of "ideal" child behavior. However, differences were noted when the mothers were divided by sex-role classification rather than sexual orientation. Classifications assigned to an "ideal" child tended to be consistent with the mother's self-ratings. That is, if the mother rated herself as masculine, then her ratings of ideal child behavior tended also toward masculine.
No differences were found in the way mothers rated females as opposed to males. The researchers concluded that their results do not support the notion suggesting that differences exist between homosexual and heterosexual mothers in terms of their sex-role behavior and perceptions. Self descriptive sex role classification (i.e., masculine, feminine, androgynous, or undifferentiated) were found to be a more accurate indicator of an "ideal" child's assigned ratings than was either the mother's sexual orientation or the child's biological sex.

Green, Mandel, Hotvedt, Gray, & Smith (1986). The focus of this study was to assess the psychosocial and psychosexual aspects of development of children of homosexual mothers, as compared to those of heterosexual mothers. Sexual identity and gender role behavior were evaluated utilizing a number of questionnaires.
The sample consisted of 50 homosexual women and their 56 children, who were matched with 40 heterosexual women and their 48 children on the variables of age, ethnicity, children's sex and age, marital status, income, and education. All children were between the ages of 3 and 11 at the time of the study, and all participants resided within one of 10 states located on the east coast and, whereas all homosexual mothers who met the criteria were accepted, the heterosexual participants were selected from a pool of approximately 900 respondents.
Each mother was given an attitude assessment covering issues of divorce, sex roles, sex education of children, and child discipline. Additionally, each was administered three measures of personality, the Bem Sex Role Inventory (BSRI), the Adjective Checklist, and the Jackson PRF-E, and asked to complete a son and/or daughter questionnaire for each child covering such areas as sexual identity, peer group popularity, and preferred play activities. Each child was tested for intelligence utilizing either the Weschler Preschool Scale of Intelligence (WPPSI), or the Weschler Intelligence Scale for Children, and each was also administered several tests of sexual identity and family relationships. Additionally, each child was interviewed concerning play preferences, friendships, television preferences, and thoughts about life as an adult.
Results indicated that lesbian mothers scored higher on self-confidence, dominance, and exhibition, whereas heterosexual mothers scored higher on abasement (expressing feelings of inferiority) and deference. Also, sons of heterosexual mothers were more likely to have experienced more than one period of separation from their father, while sons of lesbian mothers typically had experienced only one period of separation. Finally, lesbians reported having spent fewer daytime hours holding or touching their infant sons than heterosexual mothers.
With regard to the children's results, no significant differences were found in the areas of IQ, or in the results of any of the family relationship scales. Additionally, the groups did not differ on favorite types of TV programs, sex of favorite TV character, or favorite games or toys. Finally, no differences were found between the groups on peer group relations. However, with regard to sexual identity, girls of lesbian mothers were much more likely to express an interest in traditionally masculine occupations than their matched counterparts.
The researchers concluded that the daughters showed a wider range of gender role behaviors than the sons, but not beyond the ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 13--------------------------------------- normal range. Daughters of lesbian mothers were less traditionally feminine than those of heterosexual mothers, but no conflict in gender identity was found for any of the groups.

Peters & Cantrell (1991). After reviewing the empirical research, Peters and Cantrell (1991) concluded that sexual orientation cannot be explained in terms of a single factor. Based on this, they designed a study to assess what differences, if any, existed between lesbian and heterosexual women.
Their sample consisted of adult women volunteers from a university undergraduate course and a regional organization concerned with lesbian issues. Sexual orientation was determined by self report of the participants. Age matched pairs were randomly selected from a pool of 134 lesbian women and 105 heterosexual women, resulting in two groups of 46 women each. The test instrument used consisted of 100 questions encompassing four areas: family/demographic, attitudes, past sexual experiences, and current sexual experiences. There was no time limit allotted for completion.
Results indicated no significant differences between groups on past negative childhood experiences with males or positive experiences with females. Additionally, no differences were found on reported incidents of childhood sexual abuse or incest. Current attitudes toward homosexuality were also not significantly different between groups. Finally, lesbian responses with regard to distance in parental relationships did not differ from those of heterosexuals.
The researchers concluded that, excepting the sexual object of choice, these results indicate that there are very few differences regarding lesbian and heterosexual women, particularly with regard to parental relations and early sexual experience, as well as current attitudes and sexual experience.

Patterson (1995a). While it is generally recognized that, in heterosexual families, the allocation of household labor (cooking, laundry, etc.) and childcare still occurs along gendered lines, to what extent do lesbian families allocate the labor involved in household maintenance and child care? Further, what implications, if any, do these choices have for the children in their care? Patterson (1995a) sought to investigate and answer these questions, by assessing the division of household labor among biological and nonbiological lesbian mothers, and the degree of psychosocial adjustment among their children.
The sample used in this study consisted of 26 families headed by lesbian couples with at least one child between 4 and 9 years of age. All families resided in the greater San Francisco Bay area. The mothers were predominantly white, in their late 30s, well educated, and relatively affluent. The test instruments used for the parents consisted of a "Who Does What?" measure and a Marital Adjustment Test. All children completed a Child Behavior Questionnaire.
Results indicated that lesbian couples reported sharing household tasks and family decision making equally, but biological mothers reported greater involvement in child care, whereas nonbiological mother reported spending longer hours in paid employment. Most lesbian couples reported high satisfaction with their present relationships. Couples reported more satisfaction when child care was evenly shared between the two mothers. The researchers concluded that models of fairness in the division of labor at home are important influences on children's development, and that children who observe equal distributions of responsibilities may enjoy developmental advantages.

McNeill, Rienzi, & Kposowa (1998). Although lesbian mothers appear to far more similar to than different from heterosexual mothers with regard to their parenting styles and abilities, they are still awarded sole custody of their children at a rate far less than their heterosexual counterparts. To further explore this issue, McNeill, Rienzi, and Kposowa (1998) sought to assess if differences existed between these two groups on dimensions of family and relationship dysfunction, parent-child relationships, and knowledge of the parental role -- areas thought to be of importance to officials making custody decisions.
Their sample consisted of 59 women (24 lesbian and 35 heterosexual), who were all self-reported mothers of at least one child (average 1.38 for the lesbian sample, and 1.89 for the heterosexual sample). The test instruments administered were the Index of Family Relations, the Index of Parental Attitudes, the Family Awareness Scale, and the Dyadic Adjustment Scale.
Results indicated that, overall, lesbian and heterosexual mothers do not differ significantly on any of these dimensions assesses. However, although mean differences did not manifest between the two groups, the lesbian sample did exhibit more variation. The researchers stipulated that lesbians may represent a more diverse population with regard to their adjustment, stress, and competence in the parental role, a finding not support by previous research.

Parenting Styles of Homosexual Versus Heterosexual Fathers

Miller (1979). Miller (1979) sought to document the nature and quality of fathering abilities of homosexual men. Using a ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 14--------------------------------------- snowball sampling technique, 40 homosexual fathers and 14 of their children were gathered and depth interviews were conducted. All participants were white, college educated, and predominantly middle-class. Specifically, the researcher addressed the following issues: (a) Do gay fathers have children to cover their homosexuality? (b) Do they molest their children? (c) Do their children turn out to be disproportionately homosexual (these results are given in the section regarding children of homosexuals)? and (d) Do they expose their children to homophobic harassment?
Results did not substantiate any of the hypotheses. There was no evidence to support the notion that gay men father children to cover their homosexuality. Additionally, evidence was presented indicating that fears of child sexual abuse by gay fathers are not warranted. Finally, and contrary to prevailing judicial opinion, gay fathers do not expose their children to excessive homophobic harassment. However, the researcher did note that warm relationships with children may tend to offset the often lackluster positions of homosexuals in a heterosexual marriage, and that this may provide some form of compensation to them.

Mallen (1983). How do homosexual males perceive themselves in terms of their own sexuality? While it is certainly possible that they may see themselves in terms more typical of the opposite sex, the picture is far from clear. Mallen (1983), concerned that sex-role stereotypes held by homosexuals were being ignored in the literature, decided to investigate this phenomenon.
Her sample consisted of 60 participants assigned to two groups (n = 30 for each group) based on their self-ratings on the seven-point Kinsey scale. This scale ranged from 0 (exclusively heterosexual) to 6 (exclusively homosexual). Those rating themselves as 0-2 were considered heterosexual, while those rating themselves 4-6 were considered homosexual. Within this sample, no participant rated himself as 3. The two groups were matched as much as possible on the variables of age and level of education.
Each participant was administered a questionnaire designed to solicit attitudes with respect to aspects of masculinity, femininity, and sex-role stereotyping. Participants were given the questionnaire in groups of 10, and a standardized set of instructions was read to all groups. The resultant data were analyzed by principle components analyses, and the solution produced three factors accounting for 86% of the total variance (sex-role stereotypic behavior, ideal self, and expressiveness).
It was predicted that if sex-role stereotyping occurred, then female role figures would be attributed to stereotypic feminine characteristics and male role figures would be attributed to stereotypic male characteristics. It was also predicted that sex role stereotyping would be particularly characteristic of heterosexuals. Results indicated that there was a tendency for homosexual males to perceive less discrepancy between the sexes than heterosexual males. Of the two groups, only homosexual males considered androgynous traits desirable for both males and females. Both groups tended to reject extreme masculinity -- they did not see themselves as extremely masculine, nor did they wish to be so. Additionally, both groups depicted their fathers in extremely unfavorable terms. Both groups saw themselves as equally distant from their mothers.
The researcher concluded that these results indicate that sex-stereotyping was more prevalent in heterosexuals, while homosexuals tended to value expressive traits more highly. With regard to other perceptions of masculinity and femininity however, heterosexual and homosexual males tend to be much more similar than different.

Skeen & Robinson (1984). Noting that, to date, no empirical findings existed which focused on the backgrounds of gay fathers before they became involved in a heterosexual relationship and fathered a child, Skeen and Robinson (1984) sought to explore some of the data on the early family backgrounds and relationships between homosexual men who later became fathers and their parents.
Their sample consisted of 30 participants randomly selected from a larger population of 285 who had responded to a nationwide request distributed through a homosexual organization. Representation was evenly distributed from all regions of the United States, and the children of these fathers ranged in age from 1 to 34 years. All fathers were administered a questionnaire designed by the researchers to assess their current relationships, perceptions of their mother's and father's acceptance of their homosexuality, as well as perceptions of their family atmosphere during childhood. All responses were scored on a Likert-type scale ranging from 1 (extremely unsatisfactory) to 5 (extremely satisfactory).
Results indicated that the early family backgrounds of gay fathers were generally positive. Most fathers grew up in intact homes where heterosexual relationships were modeled, pleasant memories existed, and marital discord was not commonplace. Most fathers rated both their children and lovers as equally important.
Skeen and Robinson (1984) concluded that their findings question the contention that disturbed parental relationships are necessary or even contributory conditions for homosexuality. However, they acknowledged that it is difficult to determine what effect, if any, positive early family experiences have on subsequent decisions to father children. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 15---------------------------------------

Bigner & Jacobsen (1989a). In an attempt to bring some clarity to the neglected area concerning research with homosexual fathers, Bigner and Jacobson (1989a) selected 66 males (33 homosexual and 33 heterosexual), each of whom was the father of at least two children. The participants were asked to complete the Iowa Parent Behavior Inventory, a scale which consists of 36 questions within five factors (involvement, limit-setting, responsiveness, guidance, and intimacy). Total variance for these factors ranged from a low of .64 (intimacy) to a high of .86 (guidance). The collected data were analyzed using t-tests.
Analyses showed no significant differences between groups on factors of involvement or intimacy, but revealed that differences between groups on the factors of limit setting, responsiveness, and reasoning guidance were significant. Within these factors, significant differences were noted for 13 of the 36 items tested (each factor contained at least one item).
The researchers presented two possible explanations for these differences: (a) that gay parents may feel more guilt due to sensitivity about their own sexuality, and therefore strive to be better parents; and (b) that gay fathers may be more androgynous in their parenting orientation, providing them with more parenting options than heterosexual parents. They concluded that these results seem to indicate that sexual orientation has no appreciably harmful effects on a gay father's ability to parent. However, Bigner and Jacobson (1989a) urge caution in generalizing these results, due to the difficulty in accurately assessing the "gay lifestyle"(p. 184).

Bigner & Jacobsen (1989b). The enigma of gay fatherhood presents males in this group with a more unique and complex social-psychological environment than heterosexual males, particularly relative to identity concerns, acceptance of self, and parenting and custody issues (Bigner & Jacobsen, 1989b). The focus of this study was to provide empirically-based data with respect to parenting behaviors of self-identified gay and nongay men utilizing a standardized instrument. The researchers sought to explore the following issue: Are there specific dimensions of parenting behavior that differentiate gay from nongay fathers?
To answer this, the researchers selected 66 males (33 homosexual and 33 heterosexual), each of whom was the father of at least two children. The participants were administered the Value of Children (VOC) questionnaire, which consists of 21 questions within six factors (tradition-continuity-security, parenthood satisfaction, role motivations, happiness and affection, goals and incentives, and social status), all scored on a Likert-type scale and designed to address the positive values of children in adults' lives. The resulting data were analyzed using standard t-tests.
Significant differences were noted between the groups on the subscales of social status and tradition-continuity-security, with gay fathers scoring higher on the former and heterosexual fathers scoring higher on the latter. These were interpreted as indicative of a traditional attitude toward family life, a way to protect against societal rejection, and a desire to achieve some kind of social status and acceptability in the community. No differences were noted on the scales of parenthood satisfaction, role motivations, happiness and affection, and goals and incentives. Additionally, the two groups did not differ on the overall scale.
Bigner and Jacobsen (1989b) concluded that, overall, parenthood is experienced for similar reasons by both homosexual and heterosexual men, but urge caution in generalizing these results until replications can be done.

Bigner & Jacobsen (1992). The study examined parenting behaviors and attitudes toward the roles of fathering among gay and nongay fathers. Specifically, the study focused on the following questions: Are there differences in parenting styles as well as attitudes toward the fathering role of gay and nongay fathers?
There were 24 self-identified gay fathers and 29 non-gay fathers in the study. There were two test instruments used. The first was the Adult Responses to Child Behavior, which consisted of 15 slides with narration from which three types of responses were solicited -- Adult-Oriented (assertion of adult power over child), Child-Oriented (concern for child's development or learning), and Task-Oriented (emphasizing immediate problem resolution, independent of effect on parent or child). The second instrument was the Attitudes Towards Fathering Scale, consisting of 18 items measuring traditional father role attitudes, and 18 measuring developmental attitudes, all scored on a Likert-scale ranging from one (strongly agree) to five (strongly disagree). All participants completed both questionnaires.
Both groups tended to hold developmental attitudes toward their fathering role. Of the 36 items tested, seven were found to discriminate between gay and nongay fathers -- five of which measured traditional attitudes and two which measured developmental attitudes.
------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 16--------------------------------------- The overall finding was that gay and nongay fathers are much more similar than different with regard to their responsiveness and attitudes toward the fathering role. There were almost no differences with regard to degree of involvement with their children, degree of intimacy with children, problem solving, encouragement of autonomy, and the ways in which child rearing problems are handled. The researchers concluded that this firmly disallows the alleged negative impact of gay fathers on child growth and development. Sexual orientation has no overall pertinent bearing on the way fathers react to child behaviors, nor on the way they conceptualize the fathering role.

Crosbie-Burnett & Helmbrect (1993). There can be little doubt that gay fathers, as a group, have become more open about their combined gay and father identities, yet there seems to be very little in the literature documenting this phenomenon. In an effort to begin rectifying this, and to dispel, if applicable, negative myths associated with this group, Crosbie-Burnett and Helmbrecht (1993) designed a study to assess the family dynamics surrounding gay fathers and stepfathers.
Their sample consisted of 48 white gay males, each either the biological or stepfather of one child (male = 30, female = 18), and most lived with their biological mothers (74%) and visited the male household during the study. The test instruments included the Stepfamily Adjustment Scale (SAS), which measures the quality of relationships between family members and the various dynamics unique to stepfamilies (unresolved emotions from prior relationships, problems related to the child's movement between two households, quality of the steprelationship, quality of the biological parent-child relationship, happiness in the couple relationship, family cohesion, overall happiness with the family, and, for adolescents only, self-efficacy with respect to the attainment of needs). Scoring was accomplished on the basis of a four-point Likert scale.
Results indicated that the key family dynamics revolved around the integration of the stepfather into the family and his subsequent relationship with the child. Additionally, it was found that couple happiness between the two fathers was independent of their perceived relationships with their children, and negatively correlated with the perceived relationship between the biological mother and the biological father's male partner -- that is, the better the gay couple relationship, the worse the relationship between the gay "stepfather" and the biological mother.
The researchers concluded that these findings are consistent with the body of research concerning family dynamics of heterosexual stepfamily relationships, particularly those in which the children were male. It is common for strong and positive feelings between members of a stepfamily often lead to feelings of jealousy in prior spouses, especially during the early adjustment stages of family disintegration and reorganization. However, Crosbie-Burnett and Helmbrecht (1993) caution against implying causation, due to the correlational nature of their study. They urge replication with larger samples, using lesbian mothers in addition to gay fathers, and analyses utilizing qualitative methods.

Bailey, Bobrow, Wolfe, & Mikach (1995). A primary social and scientific concern with regard to gay and lesbian parenting surrounds the issues of whether or not children of these parents are especially likely to become gay themselves and, if so, why. This issue has arisen most vividly with the context of child custody cases. In an attempt to assess and clarify this issue, Bailey et al. (1995) interviewed gay fathers their adult sons, focusing particularly on the sexual orientation of the sons.
Their sample consisted of 55 gay or bisexual fathers and 43 of their adult sons. All participants resided in the areas of Chicago, St. Louis, Milwaukee, Dallas, Antonio, and Houston. Sexual orientation of fathers was determined by self-report, and each father was asked to report their perceived certainty of their son's sexual orientation on a Likert-type scale ranging from 1 (completely certain) to 4 (uncertain). Additionally, each son was asked to rate their own sexual orientation, on a Likert-type scale ranging from 0 (completely heterosexual) to 6 (completely heterosexual). The resulting data were analyzed using t-tests.
Results indicated that the fathers were amazingly accurate in predicting the sexual orientation of their sons (only one father was incorrect, for an accuracy rate of 98%), and that sexual orientation in the sons was not positively correlated with the length of time that the sons had lived with their fathers.
Bailey et al. (1995) concluded that, although they could not completely exclude the possibility of father-to-son environmental transmission, results of their study suggest that, even if such an influence exists, it is not large.

Development of Children of Homosexual Versus Heterosexual Parents

Weeks, Derdeyn, & Langman (1975). Concerned over the lack of attention which had been paid to children of homosexuals and the potential problems they might experience as a consequence, Weeks, Derdeyn, and Langman (1975) sought to explore ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 17--------------------------------------- what influence, if any, did the sexual orientation of the parent(s) play in the sexual and social development of the child? To do this, two children (one male and one female) of opposite-sex homosexual parents were administered projective tests common to psychotherapy. The parents of both children were divorced, and both children were currently living with their biological mothers.
While the researchers noted that it would be impossible, based on their very limited sample, to distinguish factors specifically related to parental homosexuality, they did conclude that the turmoil experienced by the children as a consequence of their parents' sexual orientation was not unique and did not differ significantly from that of heterosexual parents who have conflicts.
It is worth noting, however, that while the researchers concluded that the problems of children of homosexuals may not be related specifically to parental sexual orientation, there was evidence of maladaptive patterns of development in both children. Additionally, it is also worth noting that the sample used in this study was extremely small (n = 2), and therefore the conclusions reached should be interpreted with extreme caution.

Miller (1979). Miller (1979) sought to document the nature and quality of fathering abilities of homosexual men. Among the issues he sought to explore was a determination of whether or not children of homosexual fathers turn out to be disproportionately homosexual. A more extensive presentation of the sample, as well as the methodology, used in this study is given in the section on research regarding gay fathers.
Results did not support the notion that children, specifically sons, of homosexuals are more likely to be homosexual that their counterparts raised by heterosexual parents. The data suggested that second generation homosexuals are rare, and that homosexual fathers tended to show remarkably little anxiety about their children's eventual or actual orientation. However, Miller (1979) noted that stating that children of gay fathers were within the normal range of conventional development was not to say that their lives were problem free. The very nature of behavior outside of currently accepted social norms, as evidenced by their father's sexual orientation, invites consequent tension to which the children are also not immune.

Kirkpatrick, Smith, & Roy (1981). Realizing that current custody proceedings are hampered by a lack of judicial and clinical experience, as well as a lack of empirical data on the development of children of lesbian parents, Kirkpatrick, Smith, and Roy (1981) sought to explore the existence or nonexistence of distinguishing factors between children of heterosexual and lesbian parents.
The sample consisted of 40 children, aged 5 to 12, divided equally into two groups according to their mother's self-identified sexual orientation. Each child was administered the WISC, Holtzman Inkblot Technique, and Human Figure Drawing tests. Additionally, each was seen by a child psychologist for one 45-minute semistructured playroom session, which included questions about early memories, dreams, future plans, and gender related issues. The psychologist was not informed of the participant's group membership until all evaluations were completed.
Results indicated a remarkably even distribution between the two groups. Neither the child's responses nor the type or frequency of pathology differed as a function of their mother's sexual orientation. Results of behavior in the playroom revealed no indication of differences between the two groups. The researchers concluded that parental orientation is not a reliable predictor of either childhood behavior or subsequent gender-role preference.

Hoeffer (1981). Due to the prevalence of stereotypes and myths regarding lesbian-mother families, Hoeffer (1981) sought to develop research which would provide the public and professionals with a more reality-based understanding of lesbian mothers and their children. The study focused on the influence of lesbian versus heterosexual mothers' on the children's acquisition of sex role traits and behaviors.
Their sample consisted of 20 self-identified lesbian and 20 heterosexual single mothers from the San Francisco Bay area, as well as their only or oldest child. The two groups of mothers were matched on the variables of education and occupational category, and relationship status. Children ranged in ages from 6 through 9, and all had been separated from their fathers prior to 5 years of age. They were matched on the variables of gender and age, so that 10 boys and 10 girls of the same ages comprised the comparison groups. Each participant was administered the Block's Toy Preference Test, with the mothers being asked to rate the toys according to those that she most preferred, somewhat preferred, and least preferred for her child. Responses were analyzed using ANOVAs.
Results revealed no significant differences between the two groups of children as a function of the mother's sexual orientation. Irrespective of the mother's orientation, boys scored significantly higher on sex-typed masculine and lower on sex-typed feminine toy preferences than girls. Additionally, lesbian and heterosexual mothers did not differ significantly on ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 18--------------------------------------- encouragement of play behavior for boys and girls. However, while lesbian mothers did not differ significantly for sex-typed masculine or feminine toys, the heterosexual mother's means scores for sex-typed feminine toys was significantly higher for girls, and their mean preference scores for sex-typed masculine toys was significantly higher for boys. Both groups of mothers reported that the most frequent reason for selecting a particular toy was because the child had requested it, rather than to encourage play with a particular type of toy.
The researchers concluded that, irrespective of the mother's sexual orientation, both boys and girls preferred toys traditionally associated with their gender. Also irrespective of sexual orientation, mothers were more willing to encourage play with neutral toys than with sex-typed ones. The children seemed to have equal if not more influence on their mother's choices than the mothers had on the child's choices. In short, the most striking findings of this study surrounded the similarities, rather than the differences, between these two groups.

Miller, Jacobsen, & Bigner (1982). Concerned that research to date had neglected an analysis of the lesbian mother as parent, Miller et al. (1982) sought to compare the social settings provided to children by lesbian and heterosexual mothers. Specifically, they designed a study to assess the occupational, educational, and financial statuses of these two groups of women. Additionally, both group's functional conduct as caregivers, as observed through controlled settings involving children, were examined.
The sample used consisted of 34 lesbian and 47 heterosexual mothers who had custody of their children. The participants were obtained through a feminist recreation center and Parent-Teacher Association meetings in a large western mountain city. Each respondent was asked to complete a self-administered questionnaire and respond to a short slide presentation representing several parent-child situations.
The data revealed that the child in a lesbian home resided in a considerably less affluent setting than a child in a heterosexual household. Also, lesbian mothers appeared to be more child-oriented in their responses to children. Further, lesbian mothers tended to assume more of a principal role in child care responsibility regardless of whether or not this role was shared with a live-in partner.
The researchers concluded that these results cast doubt on the stereotypical notion that heterosexual mothers are more child oriented than lesbian mothers. On the contrary, proportionately more lesbian mothers reflected a child-oriented stance than their heterosexual counterparts. Clearly, the majority of lesbian mothers see themselves as intimately involved in parenting.

Golombok, Spencer, & Rutter (1983). Golombok et al. (1983) addressed the issue that neither the theories nor the empirical data allow a clear-cut expectation of the consequences for children being reared by a lesbian parent. Their investigation was designed to directly study what happens in these circumstances, and compared lesbian households to those of single-parent households where the parent was a heterosexual mother.
The sample was obtained through advertisements in a range of gay and single-parent publications, as well as through contacts with gay and single-parent organizations. There were 27 families in each group, with 37 children in the lesbian group and 38 children in the heterosexual group. The children ranged in ages from 5 to 17 years. The main source of data was collected through individual standardized interviews with both the mothers and their children. Additionally, each mother was also administered a malaise questionnaire of emotional disturbance.
Results indicated no significant differences between children raised in lesbian households and those brought up by a heterosexual parent, with respect to gender identity, sex role behavior, or sexual orientation. Additionally, it was noted that there was considerable overlap between both groups of children with regard to individual sex role behaviors. Both the findings on patterns of friendships and those on sexual feelings gave no suggestion that there was likely to be an increased rate of homosexuality among the children of lesbian mothers.
Golombok et al. (1983) concluded that the results of their study failed to show any differences between the groups of children, and that perhaps the quality of family relations, as well as the pattern of upbringing that is a more important consideration for psychosexual development.

Harris & Turner (1986). Noting that most gay/lesbian parents are concerned about their parenting and their children, Harris and Turner (1986) sought to provide insight using a more representative sample than had been used in previous studies. The sample included ten self-identified gay males, 13 lesbian families, two heterosexual male single parents, and 14 heterosexual female single parents. While the majority were white and educated, the sample used did display more diversity than had been utilized previously.
------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 19--------------------------------------- The test instrument was designed to solicit responses on a number of variables including sex roles, problems concerning single parenting, and their willingness to be interviewed, as well as general demographics such as age, ethnicity, occupation, etc. Additionally, questions asked only of gay/lesbian participants included their personal behavior and family history relevant to homosexuality (including self-identification), knowledge and reactions of spouses/children to their homosexuality, and problems and benefits their homosexuality had created for their children. The questionnaires were anonymous and color-coded, and both types were available to make it possible for gay/lesbian parents to participate without publicly identifying themselves.
The researchers concluded that there were surprisingly little differences between homosexual and heterosexual parents. With the exception that homosexual parents tended to make more of an effort to provide an opposite sex-role model for their children, there were no significant differences in the relationships of the parents with their children.
Results indicated that being gay is not incompatible with effective parenting, and it is certainly not the major issue of concern with regard to parents' relationships with their children.

Pennington (1987). Due to a fear of reprisals and the hostility or insensitivity of professionals, many lesbian families are reluctant to seek help for family or individual problems -- to do so could be tantamount to being declared unfit mothers. Pennington (1987) sought to address and discuss the major issues confronted by children living in lesbian mother households.
The sample included 32 children from 28 ethnically diverse families headed by lesbian mothers. These children were seen by the researcher on an outpatient basis at a psychotherapy clinic located in San Francisco over the course of 10 years. The typical length of therapy ranged from six months to one year. Her results are based on individual interviews conducted with both the mothers and their children.
Generally, the researcher found that the more open and relaxed the mother was with regard to her sexual orientation, the more accepting the child was of the idea of having a lesbian mother. The more realistic and understanding the mother was of the issues and potential problems surrounding her orientation, the more successful was the child's adjustment. Pennington (1987) found that there is no inherent pathology associated with lesbian mother families; rather, the central focus is the profound impact from a homophobic culture.
The researcher concluded that children in lesbian families experience problems and psychopathology at a rate not unlike that of children of heterosexual mother families, and that these problems are not necessarily correlated with the mother's sexual orientation. Rather, what appears most important is the quality of mothering, and the quality of the relationships in the household. The primary problem was not the mother's orientation but, rather, societal homophobia.

Bozett (1988). Noting that it is likely that there are between one and two million natural fathers who are also gay, Bozett (1988), realized that research in this substantive area is necessary in order to provide practitioners in helping disciplines with an accurate knowledge base so that they can be of benefit to members of this population who seek their assistance.
The data for this study were obtained through unstructured depth interviews of 19 children of gay fathers. These participants were gathered through advertisements in commercial, gay, and university newspapers in the San Francisco and Oklahoma City areas, as well as through referral by colleagues and friends known by the researcher. Information was gathered with regard to how the children found out about the fathers' homosexuality, how they felt about it, what their reactions were, and who they had told and not told and why. The goal of the research was to generate and suggest, rather than directly test, hypotheses about this phenomenon.
Results indicated that none of the children expressed any difficulty with their father in his parental role; rather, children's concerns focused primarily on the father's gay identity. In general, it was discovered that the more negatively the children perceived societal reaction to homosexuality to be, the more strongly they assumed society would react negatively to them on the basis of their implied social identity. Also, the children's acceptance of their father as gay was directly related to their own perceptions of society's attitudes toward homosexuality.
Bozett (1988) concluded that it is possible that children of gay fathers may experience much stress related to their fathers's gay identity, if they also perceive that society has a negative attitude toward homosexuality. However, they may need to be helped to realize that it may not be their father's homosexuality in itself, so much as it is society's, and thus their own, reactions toward it. They may need help recognizing that they have no control over society's viewpoint, and that they have power to control their own lives in relation to their father. Children need to be informed that the myths and stereotypes surrounding homosexuality are not representative of most gay men or gay fathers. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 20---------------------------------------

Huggins (1989). Concerned that children of lesbian mothers may suffer social stigma in peer group relations as a result, Huggins (1989) decided to investigate this issue. The study of the adolescent child is crucial because this stage of development is when stigmatization is most obvious and object choice and gender identity are easier to confirm. To facilitate this, the researcher designed a study comparing two group of adolescents on the basis of their mother's sexual orientation.
The sample consisted of 36 white participants residing in southern California, aged 13 to 19 years, and divided equally into two groups, each containing nine males and nine females. The test instrument used consisted of the Coopersmith Self-Esteem Inventory (SEI), which consists of 58 items divided into five subscales (general self, social self-peers, home-parents, lie scale, and school-academic), and designed specifically to measure self-esteem. In addition to completing the questionnaire, both the adolescents and mothers were interviewed by the researcher.
Results revealed no significant differences in self-esteem scores between children of lesbian mothers and those of heterosexual mothers. These scores were consistent with each other independent of the child's gender, indicating that self-esteem within a family unit is influenced by factors other than gender.
Huggins (1989) concluded these results suggest that the mother's sexual object choice does not appear to influence negatively the self-esteem of her adolescent children. The assumption that children of lesbian mothers are socially stigmatized by their mother's sexual orientation was not borne out by this study.

Bailey, Bobrow, Wolfe, & Mikach (1995). As stated previously, Bailey et al. (1995) have noted that a primary social and scientific concern with regard to gay and lesbian parenting surrounds the issues of whether or not children of these parents are especially likely to become gay themselves and, if so, why. The researchers developed a study to assess the validity of these concerns, and a description of their sample, as well as the methodology used, appears in the section concerning homosexual fathers.
Results indicated that 9% (n = 4) of the sons (N = 43) identified their sexual orientation as either homosexual or bisexual. Additionally, they found sexual orientation in the sons was not positively correlated with the length of time that the sons had lived with their fathers. The researchers noted that this is consistent with previous research (e.g., Patterson, 1992), and that this figure does not differ significantly from the incidence of homosexuality in the general population, which they stated ranges from 1% to 10%, depending on the stringency of the criterion. Bailey et al. (1995) concluded that, although they could not completely exclude the possibility of father-to-son environmental transmission, results of their study suggest that, even if such an influence exists, it is not large.

Flaks, Ficher, Masterpasqua, & Joseph (1995). Flaks et al. (1995) expressed concern that, to date, most studies in the area of gay and lesbian parenting examine the children of divorced lesbians, and that research surrounding planned lesbian families is quite scarce. The purpose of their research was to expand upon this limited research.
The sample used in this study consisted of lesbian couples (n = 15) raising children born to them through donor insemination. These couples were matched with heterosexual parent families on the variables of age, sex, ethnicity, income, and education. The researchers examined the families using a broad range of outcome measures, including intellectual and behavioral assessments, as well as evaluations of the parent's relationship quality and parenting skills.
The test instruments included the Child Behavior Checklist (CBC), the Teacher's Report Form (TRF), and the Spanier Dyadic Adjustment Scale (DAS). Additionally, the children were administered either the WPPSI-R (for those under six years of age) or the WISC-R (for those aged six or older) to assess cognitive functioning, while the parents were administered the Parent Awareness Skills Survey to assess the sensitivity and effectiveness with which the parent responded to typical child-care situations. The hypotheses were that there would be no significant differences between the groups.
Results supported the hypothesis that children of homosexual and heterosexual parents are remarkably similar, especially in the areas of cognitive functioning and behavioral development. No gender differences were found and scores for both boys and girls in the homosexual and heterosexual parent groups were very similar. Analysis using the PASS revealed that lesbian couples were more aware of the skills necessary for effective parenting than their heterosexual counterparts. Flaks et al. (1995) concluded that psychologically healthy children need not be raised by opposite-sex, heterosexual parents.

Patterson (1995c). Patterson (1995c) recognized that, in heterosexual families, the allocation of household labor (cooking, laundry, etc.) and childcare still occurs along gendered lines and investigated the extent to which these divisions occurred in lesbian families. Among her interests was a determination of what implications, if any, these choices had for the children in thei ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 21--------------------------------------- r care. A more extensive presentation of the samples and methodology were presented in the section concerning lesbian mothers.
Results indicated that children's adjustments were more favorable when child care was evenly distributed between the two women. Additionally, Patterson (1995a) concluded that models of fairness in the division of labor at home are important influences on children's development and that children who observe equal distributions of responsibilities may enjoy developmental advantages.

Tasker & Golombok (1995). A common practice within the judicial system is to deny lesbian women custody of their biological children, on the grounds that the children would develop atypical gender identities, manifest behavioral and emotional problems, and experience difficulties in peer relationships (Tasker & Golombok, 1995). In essence, there resides within the court system the belief that lesbian mothers are incapable of being or becoming effective parents. The goal of the researchers in this study was to provide insight into life in a lesbian family from the perspective of a group of young adults who grew up in one.
A longitudinal study was conducted utilizing two groups of single mothers, one lesbian and the other heterosexual, each consisting of 27 mothers and their 39 children. The groups were matched demographically on the variables of ethnicity, education, and social class. The main source of data collection consisted of individual interviews conducted in 1983, and again in 1991-1992.
Results indicated that all the children in the sample had functioned well throughout childhood and adolescence. Children from lesbian families were no more likely to experience peer stigma than their counterparts from heterosexual families, nor were they any more likely to experience anxiety or depression. Additionally, there was no difference between the groups concerning engagement in at least one instance of same-sex gender attraction. The researchers concluded that these results do not support the commonly held assumption concerning parental transmission of homosexuality, nor do they support the notion that lesbian parents are necessarily worse parents as a consequence of their sexual orientation.

Patterson & Mason (in press). Remarking that little is known about contacts of lesbian mothers and their children with regard to their extended family and friendship networks (e.g., grandparent relationships), or the potential impact(s) that these contacts might have on children's development, Patterson and Mason (in press) designed a study to evaluate the degree to which these individuals might be important members of the child's social network.
Data was collected from a group of families (n = 37) in which children had been born to or adopted early in life by women who identified as lesbian. Families were selected from the greater San Francisco area, and had to meet each of the following criteria: (a) at least one child between the ages of 4 and 9 had to be present in the home, and (b) the child had to be born to or adopted by a lesbian mother or mothers. In total, 66 mothers, who were predominantly white (92%) , in their late 30s (mean age 39.6 years), well educated (74% had received bachelors degrees of higher), and relatively affluent (92% reported annual incomes over $30,000, and 54% reported annual incomes over $60,000), took part in the study.
Assessment strategies consisted of a family interview, as well as the administration of the Achenbach and Edelbrock Child Behavior Checklist, and Elder's Children's Self-View Questionnaire. Results indicated that, on average, children were described as having monthly or more frequent contact with approximately six adults outside the household (four women and two men). Additionally, children had more contact with relatives of their biological mother than with relatives of their nonbiological mother. Finally, children who were described by their mothers as being in regular contact with more grandparents also were described as having fewer behavioral problems.
The researchers conclude that these results are not consistent with stereotypes of lesbian mothers and their child as being isolated from kinship networks, or as living in single-sex social worlds. Additionally, children of lesbian mothers do tend to have regular contact with both male and heterosexual adults. While noting the exploratory nature of the study, Patterson and Mason (in press) suggest that these results point to the durability and value of extended family networks in lesbian families.

Chan, Raboy, & Patterson (in press). The researchers noted that children's development has generally been examined within the context of families from via traditional conception methods. With this in mind, Chan, Raboy, and Patterson (in press) conducted a study to assess potential differences between lesbian and heterosexual mothers, taking into consideration the advances in ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 22--------------------------------------- reproductive technologies. By doing so, the researchers felt they could examine questions about psychosocial development that related both to family structure and family process.
Families (n = 80; 55 lesbian and 25 heterosexual) for this study were selected from the Sperm Bank of California. Mothers averaged 42 years of age (children averaged 7 years of age), were mostly well educated, were most were employed at least part-time. Additionally, the families were, on average, quite affluent, with annual incomes well above national averages. The test instruments administered included the Child Behavior Checklist, the Teacher Report Form, the Parenting Stress Index - Short From, the Center for Epidemiologic Studies Depression Scale, the Rosenberg Self-Esteem Scale, the Locke-Wallace Marital Adjustment Test, and the Braiker and Kelley Relationship Questionnaire.
Results indicated that no significant difference existed between lesbian and heterosexual mothers regarding relationship adjustment, or reports of well-being as a function of sexual orientation. Children of both groups were reported as being well adjusted - in fact, they tended to be rated as significantly higher on social competence and significantly lower on behavior problems than children in the clinical population. Structural factors such as household composition and parental sexual orientation were not associated with significant outcomes for either children or their parents.
It was found, though, that biological mother's reporting of parenting stress was significantly related to her own reporting of children's behavior problems. This was also found to be true for reports of non-biological parents, as well as those of teachers. However, these reports were not a function of the parent's sexual orientation, relationship status, or educational attainment. The researcher's concluded that children's development was not related to variables of family structure (i.e., sexual orientation of the parent); rather, children's well-being is more a function of parenting and relationship processes within the family (i.e., family interactions and processes). Discussion and Conclusion

Research Regarding Lesbian Mothers

Analysis of the studies in this area (n = 7) revealed that lesbian mothers did not differ from heterosexual mothers with regard to parenting behaviors and sex role characteristics (Kweskin & Cook, 1982; Pagelow, 1980; Shavelson et al., 1980). Additionally, no differences were noted on the incidences of negative childhood experiences with men or positive experiences with women (Peters & Cantrell, 1991). No differences were noted found in the way lesbian mothers rated "ideal" sons and daughters, with regard to their behavior (Kweskin & Cook, 1982), although there was a tendency toward the rating of ideal child behavior in a manner consistent with the mother's self-ratings. Further, attitudes toward homosexuality, as well as perceptions of distance in parental relationships, did not differ between lesbian and heterosexual mothers (Peters & Cantrell, 1991).
Results of one study (Shavelson et al., 1980) did indicate that lesbians tend to rate themselves higher on a masculinity scale, although a single predictor for this phenomena could not be isolated. Additionally, lesbian mothers tend to be more self-confident (Green et al., 1986), more equalitarian in the distribution of household responsibilities and family decision making (Patterson, 1995a), and report higher levels of satisfaction in their relationships (Pagelow, 1980; Patterson, 1995a). Yet, lesbian mothers are still awarded sole custody of children at a rate far less than that of heterosexual mothers (Pagelow, 1980).
Lesbian and heterosexual women did not differ with regard to discrimination in the areas of housing, employment, and problems in the collection of child support (Pagelow, 1980). This seems to suggest the over-riding presence of androsexism in this society -- regardless of sexual orientation, women are still discriminated against.
Particularly with regard to sex role behaviors and characteristics, as well as attitudes and perceptions toward parenting, very few differences exist between lesbian and heterosexual mothers. Lesbian women do seem to be more independent and satisfied, however. Perhaps this might be explained as a consequence of their assertive behavior in proclaiming their identities to society. Whereas heterosexual women may still be passively oppressed within a "traditional" family structure, lesbian women have distinguished themselves as a separate entity. In doing so, they may have subjected themselves to potential condemnation by society. However, by separating themselves from a system which oppresses them, they may benefit from a consequent boost in self-esteem in their (perceived) triumph over it.

Research Regarding Gay Fathers

Results of analysis of studies in this area of the literature (n = 8) seem to indicate that gay fathers do not differ significantly from heterosexual fathers on the dimensions of involvement or intimacy with their children (Bigner & Jacobsen, 1989a, 1989b, 1992); or on the dimensions of satisfaction, motivation, or goals and incentives (Bigner & Jacobsen, 1989b). Additionally, both ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 23--------------------------------------- groups tend to hold developmental attitudes toward the fathering role (Bigner & Jacobsen, 1992). Further, it does not appear that gay fathers subject their children to abuse or excessive harassment (Miller, 1979) and do not convey a disproportionate tendency toward homosexuality to their children (Bailey et al., 1995; Miller, 1979; Skeen & Robinson, 1984) as compared to their heterosexual counterparts. Early family backgrounds of gay fathers are generally positive, and do not differ significantly from those of heterosexual fathers (Skeen & Robinson, 1984). Finally, gay step-families do not differ significantly from heterosexual step-families (Crosbie-Burnett & Helmbrect, 1993), with both focused primarily on reintegration of the fractured family structure.
There does seems to be a tendency for gay fathers to be more androgynous in their perceptions and value expressive traits more highly (Mallen, 1983). Heterosexual fathers tend to hold more traditional attitudes toward family life (Bigner & Jacobsen, 1989b) and are more likely to perceive the sexes in stereotypical ways (Mallen, 1983). However, the two groups do not seem to differ with regard to their overall happiness with the parenting role.
Overall, the similarities between gay and heterosexual fathers seem to vastly outweigh the differences. There seems to be no evidence suggesting that gay fathers are any less capable of raising well-adjusted children than are heterosexual parents and both experience parenting for similar reasons. Sexual orientation seems to have no appreciable effect on how gay fathers react to, or conceptualize, the fathering role.

Research Regarding Children of Homosexual Parents

Sixteen of the studies analyzed addressed issues concerning the possible effects of gay and lesbian parents on their children. Results indicate that children of gay/lesbian parents do not differ significantly from those raised in heterosexual families in the areas of intellectual development (Flaks et al., 1995; Green et al., 1986; Kirkpatrick et al., 1981), gender identity (Golombok et al., 1983), sexual orientation (Bailey et al., 1995; Golombok et al., 1983; Miller, 1979), peer group relations (Green et al., 1986), or self-esteem (Huggins, 1989).
Additionally, sexual orientation of the parent failed to have significant influences on either gender identity (Green, 1978) or independence (Steckel, 1985) of the child. Irrespective of the parent's sexual orientation, children prefer sex-typed toys consistent with their biological gender (Hoeffer, 1981) and do not suffer disproportionate amounts of turmoil (Flaks et al., 1995; Weeks, 1975) or depression (Tasker & Golombok, 1995; Pennington, 1987).
Children raised in a lesbian home do tend to reside in a considerably less affluent setting than those raised by heterosexual mothers (Miller et al., 1982) and lesbian mothers tend to strive harder to provide opposite-sex role models for their children (Harris & Turner, 1986). Perhaps this represents a type of "double discrimination" whereby lesbians suffer discrimination both from being female and lesbian. It is plausible that they may attempt to minimize this discrimination for their children by providing "socially acceptable" models for their children.
Lesbian mothers tend to be more child oriented in their response to children (Miller et al., 1982) and their tendency toward equal distribution of household responsibilities represents positive influences on the development of their children (Patterson, 1995c). Additionally, there is extensive evidence that children of homosexuals are no more likely to become homosexual themselves as a consequence of the parent's sexual orientation (Bailey et al., 1995; Flaks et al., 1995; Miller, 1979; Tasker & Golombok, 1995). Gay/lesbian parents show remarkably little anxiety concerning their children's eventual sexual orientation (Miller, 1979; Miller et al., 1982).
Males raised by gay fathers expressed no difficulty with their father in his parental role, but their concern regarding his sexual orientation was consistent with their perceptions regarding society's attitude (Bozett, 1988). As such, it is not their father's sexual orientation, per se, which causes their discomfort; rather, it is their reaction to society's attitude toward homosexuality.
The lives of children of gay/lesbian parents are not problem free. They are subject to the same tensions and pressures of all children, and society's reaction to the sexual orientation of their parents may even tend to magnify this somewhat. These results have not led to any significant changes in societal opinion, and sexual orientation of the parent continues to be a major issue in public policy formation (Patterson, 1992). However, results of these studies indicate that, on the whole, their lives do not differ appreciably from those raised by heterosexual parents.

General Discussion ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 24---------------------------------------

The majority of these studies are plagued by problems in sampling. Only one study (Skeen & Robinson, 1984) used anything even approaching a random sample, and only one study (Tasker & Golombok, 1995) was longitudinal in nature. Additionally, nearly one-half of the studies analyzed used samples either totally (n = 8) or disproportionately (n = 4) Caucasian. Of the remainder, 13 did not give ethnic demographics (although four of these did state that the participants were matched on the variable of ethnicity), thereby making it difficult to judge their diversity. These problems tend to severely restrict the external validity of any pertinent results. While mindful of the inherent difficulties in obtaining truly random samples, particularly due to the current social stigma attached to homosexuality, the importance of generalizable conclusions would seem to warrant more diverse sampling techniques.
Nevertheless, there seems to be support for the notion that homosexual parents are at least as capable of raising healthy, well adapted children as heterosexual parents. Homosexual parents who become parents outside the context of a heterosexual relationship may, in fact, be better parents, due to the conscious nature of their choosing to be parents. Homosexual parents tend to display more nurturing behaviors toward their children. They also tend to be more knowledgeable about the parenting skills necessary and more involved in the raising of their children. Lesbian relationships tend to be more stable than heterosexual relationships and gay (male) relationships are as stable as heterosexual relationships. However, these conclusions are based on implications, rather than direct evidence (i.e., intuitively, it makes sense to conclude that more nuturance in parents leads to "better" outcomes for children; but there is no direct evidence for this).
Although it is difficult to accurately assess the factors that contribute to the best interests of the child, results from these studies indicate that sexual orientation of the parent is a poor predictor of/is not a good indicator of sexual orientation of the child. Incidence of homosexuality in children of homosexual parents does not differ significantly from that of the general population. However, the additional social pressures of being the product of a "deviant" family must also be considered.
The legal/court system is still very biased in favor of heterosexuality. These results have not led to any significant changes in societal opinion, and sexual orientation of the parent continues to be a major issue in public policy formation (Patterson, 1992). A gay parent seeking either custody, continuation of parental rights, or visitation privileges is generally at a legal disadvantage because of the subjective criteria used by many judges to serve the "best interests" of the child. Currently, the best way that a gay/lesbian parent can increase his/her chance of obtaining custody and/or visitation is by portraying his/herself as being as close to the All-American norm as possible .. and heterosexual, if not in actuality, then surely in appearance before the court and behavior toward his/her children.
Yet, results of this study show that the bias displayed by the court system is without empirical support. Significant differences with regard to parenting knowledge and attitudes, simply so not exist between gay/lesbian parents and their heterosexual counterparts. Additionally, these results also failed to find any significant differences between children raised by homosexual versus heterosexual parents.

Implications for Future Research

The published literature does not say much about what homosexual parents are; rather, it attempts to describe what they are not in relation to heterosexual parents: they are not significantly different from them. And, it should be acknowledged that research on lesbian and gay families with children is still relatively new (Patterson and Redding, 1996). Heterosexual parents are currently the norm against which homosexual parents are compared. Although gay and lesbian parents are becoming more open in society, their presence still has not been truly acknowledged, much less accepted, by our heterosexist culture. If lesbian and gay parents are ever to be afforded fair and equal treatment by our social institutions, research needs to be done which will affirm these alternative families as legitimate in their own right.
Another important consideration for future research is an acceptance of standard operational definitions. What is a "healthy, well-adjusted person?" The definition of homosexuality as "deviant" implies that persons of this sexual orientation are somehow "lacking" as compared to heterosexuals. Is this a valid conclusion? Homosexuals have been having and raising children for a long time, without any apparent detrimental effects to society. Perhaps it is time that our society realize and accept as "normal" lifestyles which are functional, and not simply "white, middle-class, and heterosexual."
------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 25--------------------------------------- There does seem to be abundant and convincing evidence that sexual orientation is not a valid consideration with regard to parenting abilities. Yet, bias and discrimination continues to flourish in society. However, in agreement with Patterson and Redding (1996), "the findings (thus far) have been regarded as sufficiently clear to warrant policy statements by major professional organizations" (p. 44). Perhaps the problem is not a lack of research, but one of dissemination. Results of studies such as these need to be circulated such that those in positions of decision-making can make informed decisions with access to all available information.

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Bozett, F. W. (1988). Social control of identity by children of gay fathers. Western Journal of Nursing Research, 10, 550-565.
Bozett, F. W. (1984, Oct). Parenting concerns of gay fathers. Topics in Clinical Nursing, 60-71.
Chan, R. W., Raboy, B., & Patterson, C. J. (in press). Psychosocial adjustment among children conceived via donor insemination by lesbian and heterosexual mothers. Forthcoming in Child Development.
Crosbie-Burnett, M. & Helmbrecht, L. (1993). A descriptive empirical study of gay male stepfamilies. Family Relations, 42, 256-262.
DiLapi, E. M. (1989). Lesbian mothers and the motherhood hierarchy. In F. W. Bozett (Ed.) Homosexuality and the family (pp. 101-121). New York: Hawthorn.
Falk, P. J. (1989). Lesbian mothers: Psychosocial assumptions in family law. American Psychologist, 44, 941-947.
Flaks, D. K., Ficher, I., Masterpasqua, F. & Joseph, G. (1995). Lesbians choosing motherhood: A comparative study of lesbian and heterosexual parents and their children. Developmental Psychology, 31, 105-114.
Golombok, S., Spencer, A., & Rutter, M. (1983). Children in lesbian and single-parent households: Psychosexual and psychiatric appraisal. Journal of Child Psychology and Psychiatry, 24, 551-572.
Gottman, J. S. (1990). Children of gay and lesbian parents. In F. W. Bozett and M. B. Sussman (Eds.), Homosexuality and family relations (pp. 177-196). New York: Harrington Park.
Green, R., Mandel, J. B., Hotvedt, M. E., Gray, J., & Smith, L. (1986). Lesbian mothers and their children: A comparison with solo parent heterosexual mothers and their children. Archives of Sexual Behavior, 15(2), 167-184.
Green, R. (1978). Sexual orientation of 37 children raised by homosexual or transsexual parents. American Journal of Psychiatry, 135, 692-697.
Harris, M. B. & Turner, P. H. (1986). Gay and lesbian parents. Journal of Homosexuality, 12(2), 101-113.
Hitchens, D. (1980). Social attitudes, legal standards, and personal trauma in child custody cases. Journal of Homosexuality, 5(1), 89-95.
Hoeffer, B. (1981). Children's acquisition of sex-role behavior in lesbian-mother families. American Journal of Orthopsychiatry, 51, 536-544.
Huggins, S. L. (1989). A comparative study of self-esteem of adolescent children of divorced mothers and divorced heterosexual mothers. In F. W. Bozett (Ed.) Homosexuality and the family (pp. 123-135). New York: Hawthorn.
Kirkpatrick, M., Smith, C., & Roy, R. (1981). Lesbian mothers and their children: A comparative study. American Journal of Orthopsychiatry, 51, 545-551.
Kleber, D. J., Howell, R. J., & Tibbits-Kleber, A. L. (1986). The impact of parental homosexuality in child custody cases: A review of the literature. Bulletin of the American Academy of Psychiatry and the Law, 14, 81-87.
Knight, R. G. (1983). Female homosexuality and the custody of children. New Zealand Journal of Psychology, 12, 23-27.
Kweskin, S. L. & Cook, A. S. (1982). Heterosexual and homosexual mothers' self-described sex-role behavior and ideal ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 26--------------------------------------- sex-role behavior in children. Sex Roles, 8, 967-975.
Mallen, C. A. (1983). Sex role stereotypes, gender identity and parental relationships in male homosexuals and heterosexuals. Journal of Homosexuality, 9(1), 55-74.
McNeill, K. F., Rienzi, B. M., & Kposowa, A. (1998). Families and parenting: A comparison of lesbian and heterosexual mothers. Psychological Reports, 82, 59-62.
Miller, J. A., Jacobsen, R. B., & Bigner, J. J. (1982). The child's home environment for lesbian vs. heterosexual mothers: A neglected area of research. Journal of Homosexuality, 7(1), 49-56.
Miller, B. (1979, Oct). Gay fathers and their children. The Family Coordinator, 545-552.
Pagelow, M. D. (1980). Heterosexual and lesbian single mothers: A comparison of problems, coping, and solutions. Journal of Homosexuality, 5(3), 189-204.
Patterson, C. J., Hurt, S.. & Mason, C. (in press). Families of the lesbian baby boom: Children's contacts with grandparents and other adults. Forthcoming in American Journal of Orthopsychiatry.
Patterson, C. J. & Redding, R. E. (1996). Lesbian and gay families with children: Implications of social science research for policy. Journal of Social Issues, 52 (3), 29-50.
Patterson, C. J. (1995a). Sexual orientation and human development: An overview. Developmental Psychology, 31, 3-11.
Patterson, C. J. (1995b). Adoption of minor children by lesbian and gay adults: A social science perspective. Duke Journal of Gender Law & Policy, 2, 191-205.
Patterson, C. J. (1995c). Families of the lesbian baby boom: Parents' division of labor and children's adjustment. Developmental Psychology, 31, 115-123.
Patterson, C. J. (1994). Lesbian and gay families. Current Directions in Psychological Science: A Journal of the American Psychological Society, 3, 62-64.
Patterson, C. J. (1992). Children of lesbian and gay parents. Child Development, 63, 1025-1042.
Payne, A. (1978). Law and the problem patient: Custody and parental rights of homosexual, mentally retarded, mentally ill and incarcerated patients. Journal of Family Law, 16, 797-818.
Pennington, S. B. (1987). Children of lesbian mothers. In F. W. Bozett (Ed.) Gay and lesbian parents (pp. 58-74). New York: Praeger.
Peters, D. K. & Cantrell, P. J. (1991). Factors distinguishing samples of lesbian and heterosexual women. Journal of Homosexuality, 21(4), 1-15.
Pies, C. A. (1990). Lesbians and the choice to parent. Marriage and Family Review, 14(3-4), 137-154.
Polikoff, N. (1986). Lesbian mothers, lesbian families: Legal obstacles, legal challenges. Review of Law and Social Change, 14, 907-914.
Riddle, D. I. (1978). Relating to children: Gays as role models. Journal of Social Issues, 34(3), 38-58.
Rivera, R. R. (1987). Legal issues in gay and lesbian parenting. In F. W. Bozett (Ed.) Gay and lesbian parents (pp. 199-227). New York: Praeger.
Robinson, B. & Skeen, P. (1982). Sex-role orientation of gay fathers versus gay nonfathers. Perceptual and Motor Skills, 55, 1055-1059.
Rohrbaugh, J. B. (1989). Choosing children: Psychological issues in lesbian parenting. Women and Therapy, 8(1-2), 51-64.
Shavelson, E. S., Biaggio, M. K., Cross, H. H., & Lehman, R. E. (1980). Lesbian women's perceptions of their parent-child relationships. Journal of Homosexuality, 5(3), 205-215.
Skeen, P. & Robinson, B. E. (1984). Family backgrounds of gay fathers: A descriptive study. Psychological Reports, 54, 999-1005.
Steckel, A. (1987). Psychosocial development of children of lesbian mothers. In F. W. Bozett (Ed.) Gay and lesbian parents (pp. 75-85). New York: Praeger.
Strong, C. & Schinfeld, J. S. (1984). The single woman and artificial insemination. Journal of Reproductive Medicine, 29, 293-299.
Tasker, F. & Golombok, S. (1995). Adults raised as children in lesbian families. American Journal of Orthopsychiatry, 65, 203-215.
U.S. Bureau of the Census. (1983). Statistical abstracts of the United States: 1984 (104th ed.). Washington, D.C.:U.S. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 27--------------------------------------- Government Printing Office.
Weeks, R. B., Derdeyn, A. P., & Langman, M. (1975). Two cases of children of homosexuals. Child Psychiatry and Human Development, 6, 26-32.
Wyers, N. L. (1987, Mar-Apr). Homosexuality in the family: Lesbian and gay spouses. Social Work, 143-148.

1. A consistent focus throughout these studies is a comparison of gay and heterosexual parents on some third variable (parenting attitudes, personality scores, etc.). Many of the researchers state as their criteria for these studies the lack of empirical research "to date." However, as this literature review will reveal, the research is available and, in some cases, is quite substantial

Editor's Preface

The following Report was submitted for adoption to the Section on Gay and Lesbian Legal Issues (Section), which on August 31, 1998 adopted it with only minor stylistic modifications. The original draft of the Report was authored by Professor Francisco Valdes, the 1997 Section chair, with the assistance of Professor Sharon Rush, the 1998 Section chair. After its preliminary approval by the Section Executive Committee it was distributed to all Section members for comments and additional feedback. After incorporating all timely-received comments it was distributed to law schools all around the country. It is reproduced here as adopted.

The Report addresses the impact of the "Solomon II" amendment on the recent and ongoing efforts of American law schools, and of the American Association of Law Schools (AALS), to eradicate sexual orientation discrimination in legal education--an effort that represents a continuation of prior, similar efforts to eradicate race and sex discrimination. These efforts are codified in AALS and law school policies that prohibit employers who discriminate on any of these (and other bases) from using on-campus facilities to recruit law students as potential employees. Because the ultimate goal is to secure a bias-free environment for legal education, these antidiscrimination policies, and Solomon II's detrimental impact on them, is important to the nation's law schools, law faculties and law students.

The Solomon II amendment denies certain types of federal student-loan funds to schools that enforce antidiscrimination policies against the United States military, an employer that openly and formally discriminates on the basis of sexual orientation. This legislation's coercive effects therefore threaten directly the bias-free environment that is the ideal in legal education. If legal educators are not careful, this legislation will foster a climate of homophobia in the nation's law schools.

Accordingly, the Report culminates a year-long effort to assess the impact of this legislation on law schools around the country, and is the most comprehensive compilation of current information presently available on the topic. Because this issue is vital both to the institutions and students affected by it, we hope that it will be widely disseminated within each law schools' community, and used by faculties and administrators to help guide law school responses to the legislation. To help assure easy access to this Report, it also has been made available on the Section website; please refer to note 1 of the Report for website information to download additional copies.

If you have any questions about this Report, please contact the 1998 Section Chair, Sharon Rush (U. Florida) or the 1997 Section Chair, Frank Valdes (U. Miami).

August 30, 1998

TO: Section on Gay and Lesbian Legal Issues

FR: Frank Valdes, 1997 Chair ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 28---------------------------------------

AALS Section on Gay and Lesbian Legal Issues

RE: "Solomon II" -- Amelioration Report & Recommendations

-----------------------------------------------------------------------------------------------------------------------

This Amelioration Report (Report) presents the analysis of the author with respect to recent federal legislation affecting certain federal funds for schools that do not permit military recruiters to use on-campus facilities for their recruitment activities.

The Report opens with an executive summary, followed by analysis and recommendations.

To communicate with the Section on this matter, contact the 1998 Section Chair, Professor Sharon Rush (U. of Florida) or the 1997 Section Chair, Professor Francisco Valdes (U. of Miami).

This Report has not been submitted for prior review to the Executive Committee or Membership Review Committee of the American Association of Law Schools (AALS); interested parties should feel free to communicate directly with the AALS by contacting AALS Executive Director Carl Monk (202-296-8851).

cc. Deborah Rhode, President, AALS

Carl Monk, Executive Director, AALS

Members, AALS Executive Committee

Members, AALS Membership Review Committee

Table of Contents

I. Executive Summary -- General Principles

II. Introduction -- A Brief Overview

III. Basic Background -- Solomon II and AALS Policy

IV. Threshold Determinations -- Importance of Federal Funds

V. Access -- Issues and Suggestions

VI. Amelioration -- Access and Suggestions

VII. Conclusion -- A Recap

I.

Executive Summary -- General Principles

This executive summary distills to the following general principles the substance of this Report. However, the issues addressed through this Report are complex. The author therefore urges anyone who wishes to be fully informed to review the Report in its entirety. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 29---------------------------------------

1. Solomon II Affects Only Three Specific Types of Federal Funds, and Law Schools Should First Determine the Actual Amount and Relative Importance of Those Specific Funds.

2. The Solomon II Regulations Call for "Reasonable" Physical Access to the Law School Itself AND ALSO Impose on the Military a Mandatory Duty to Accommodate Schools' "Reasonable Preferences" as to "Times and Places": Reasonable Access Should be Satisfied With a Suitable Interviewing Room Separate from the Career Services Facility.

3. Reasonable Access is not Equal or Unrestricted Access: Equal Access is Gratuitous.

4. Gratuitous Access is Excessive Access, Incompatible Both with AALS and/or Other Applicable NonDiscrimination Policies AND the with Positive Duty to Ameliorate.

5. Ancillary Services are Courtesies Apart from Physical "Access" that Should be Prohibited or Minimized to Avoid Entanglement or Complicity.

6. To Avoid Entanglement/Complicity, Focus on Amelioration, a Positive Duty Encompassing Four Kinds of Action; Involve Students, Faculty, Alumni and Community in Each.

7. "Specific" Amelioration, Tailored Specifically to Provide More Placement Opportunities for Gay Students, Should be Prioritized and Properly Funded and Supported.

8. Circumstance Indicates that Both Access and Amelioration Policies Enacted Now Will Need to be Institutionalized and Monitored for the Long Term; Plan for the Long Term.

9. Though Advance Planning is Prudent, NO Action is Required Until a Law School Receives a Formal "Letter of Inquiry" from the Military, and Then No Hasty Reaction is Necessary: The Simple Administrative Process Initiated by the Letter Ensures that No School will have Funds Cut Off Suddenly.

10. Issues of Access, Treatment and Amelioration Aside, Law Schools Need to Collaborate with Each Other and with the AALS to Devise Legislative and Litigative Strategies to Overturn Solomon II in the Longer Term.

II.

Introduction -- A Brief Overview

During the past year1 the AALS Section on Gay & Lesbian Issues (Section) has been updating you on the effects of the "Solomon II" amendment, which also is sometimes referred to as the "Solomon-Pombo" amendment.2 This amendment cuts off three types of funds under federal education programs that the United States Department of Education has determined constitute "grants or contracts to institutions," and which those institutions then disburse to students in the form of financial aid, mostly loans.3 It bears emphasis, however, that "the Department of Education has determined that most of the Title IV student financial aid assistance programs are not affected by the Solomon-Pombo Amendment."4 This administrative determination is important to note at the outset because it means that, depending on economic circumstance, some schools may not be vitally affected by this legislation.5

This cut-off of three specific types of affected funds applies to law schools that "prohibit or in ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 30--------------------------------------- effect deny" on-campus access to military recruiters, but only after the conclusion of a simple administrative process initiated by the law school's receipt of a formal letter of inquiry from the Department of Defense.6 Thus, law schools need not act at all until they receive the letter of inquiry. Even then, they need not act in haste or panic because the simple administrative process initiated by the letter's receipt ensures that funds will not be suddenly terminated.

In brief, the letter of inquiry is supposed to recite any information that causes the Department of Defense to believe that a school "prohibits or in effect denies" on-campus access to the military; the law school then is allowed 30 days to respond in writing.7 After this initial exchange, the military and the law school can informally or formally exchange additional information to further clarify or modify law school access issues. If the Department of Defense remains unsatisfied,8 it notifies the Department of Education, which then places the school on a list of institutions ineligible to receive the three types of affected funds.9 The execution of the amendment and its implementing regulations thus depends on the interaction of Department of Defense and Department of Education personnel, but the crucial initial determination of ineligibility resides with the Department of Defense.

It appears from prevailing but non-authoritative interpretations10 of the implementing regulations that the statute requires physical access specifically to the law school, or to its portion of a main campus. And because the statute contemplates both formal and functional "denial" or "prohibition" of access to law school facilities, the regulations may be interpreted as requiring schools to modify formally their written nondiscrimination policies to include an express exception for the military; if so, such exception should reflect the narrowness of the AALS policy and the overall sense of narrowness this Report urges throughout. However, the Solomon regulations apparently do not mandate that this access be integrated into a law school's general career services operation: the regulations nowhere refer to "equal" access or treatment, nor demand a wholly undifferentiated inclusion of the military in a law school's general placement activities.

The uncritical granting of "equal" access or treatment by any law school to the military is wrong for three reasons:

1. As elaborated more fully below, the Solomon II regulations refer to "reasonable access" and specify that military recruiters "shall accommodate a covered school's reasonable preferences as to times and places for scheduling on-campus recruiting. The first reason therefore is that "equal" access or treatment is not mentioned in the statute or the regulations. Under these circumstances, the author views more access than is required by law to be gratuitous, and hence incompatible on principle with AALS nondiscrimination policies that remain in place despite, and alongside, Solomon II.11 And among schools that have similar nondiscrimination policies, the grant of gratuitously "equal" access or treatment also would be contrary to that school's and/or university's policies.12 Likewise, some schools are located in cities, counties or states with local or regional nondiscrimination policies that ban sexual orientation bias. In light of these institutional and/or governmental policies, equal access and treatment are wrong because their gratuitous overinclusiveness necessarily violates these policies. In effect, then, the co-existence of Solomon II with AALS, university, school, and state or local nondiscrimination policies puts schools in the position of devising ways of complying with both types of directive at once.

Solomon II's primary effect ought to be to prompt law schools to think carefully about how to satisfy both Solomon II as well as these various institutional and/or governmental antidiscrimination mandates. Law schools therefore need to plan and tailor their adjustments to Solomon II carefully, keeping in mind the continuing need to comply with, and actually adhere to, their continuing substantive commitment to nondiscrimination. To do so, they should meet the requirements of the Solomon law and no more.

2. Apart from this basic reason, a second reason to tailor carefully any new grant of campus access to the military, is that equal or excess access also unnecessarily violates, in symbolic terms, the law school's antidiscrimination integrity. More specifically, ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 31--------------------------------------- excess or equal access conveys the (at least) symbolic message that the law school's commitment to its antidiscrimination policies is less than earnest, and perhaps merely formal. Specifically, excess or equal access belies the assertion oftentimes made in "disclaimer notices" that law schools are being compelled or coerced by federal law to become complicit in the military's policy and practice of discrimination.13 Law schools therefore need to craft responses to Solomon II that do not signal (whether intentionally or otherwise) a willing, excessive or gratuitous complicity in the military's discrimination.

3. Third, and in addition to the above, the AALS response to Solomon II included a "duty to ameliorate" the "detrimental effects" of this newly-provided access.14 This duty to ameliorate is not carefully defined in the AALS guidelines but logic dictates that no greater access than is required by law need be, or should be, granted; as a matter of principle, providing more access than is necessary under the terms of the law would magnify correspondingly the detrimental effects of such access, spiraling the need for amelioration. Because excess or gratuitous access unavoidably undercuts amelioration, the negative impact of excess access on the substantive duty to ameliorate provides a third reason for careful tailoring of any new military access.

The main point of this Report therefore is that reasonable access does not dictate equal access. Though schools should conduct themselves professionally regarding the military on this issue, the language of the law does not obligate schools to do anything else beyond providing reasonable access; within the bounds of professional conduct, reasonable access does not in the author's view imply that schools are obligated to provide other free services or amenities (such as, perhaps, scheduling appointment times, collecting and transmitting resumes, free parking, endless supplies of coffee, snacks or lunches and the like). Beyond providing the "reasonable access" mentioned in the law, schools should avoid entanglement with military on-campus activities and devote their energies and resources to maximizing amelioration.15

With this overview in mind, the remainder of this Report outlines basic background information to provide context, turning next to threshold considerations regarding the amount and significance of the affected funds, and concluding with a discussion of access issues and amelioration issues, respectively.

III.

Basic Background -- Solomon II and AALS Policy

Last year, in response to the Solomon II legislation, the AALS took three steps in tandem: 1) it voted to "excuse" noncompliance with its nondiscrimination policy so long as schools satisfied a positive duty to ameliorate the detrimental effects of such noncompliance; 2) it voted to limit recognition of this excused noncompliance only for so long as Solomon II remains law and only for so long as this noncompliance extends exclusively to the military; 3) it requested all law school deans to report their law school's reactions to Solomon II as part of a fact-gathering process designed to produce information that could be widely disseminated.16 Shortly after these steps were taken, the Section and the AALS additionally decided jointly to solicit experiential reports, and then to issue an amelioration packet of information. During the past year the Section therefore has elicited from you accounts of local experiences so that we could compile and send out this information to all law schools. Since then the Section has received only sporadic reports. In addition, the Section has received copies of the reports provided by deans to the AALS. This Report synthesizes this presently-available information from the author's perspective.17

These experiential reports suggest two waves of scenarios and reactions. The first wave, roughly taking place in 1997, appears to reflect a rather simple tendency to backslide. The second wave, roughly taking place now, reflects a considerably more careful and nuanced adjustment in law school practices to balance Solomon II against extant nondiscrimination policies. The trajectory of law school reaction therefore is good, but not guaranteed. Below we summarize both waves and then address the prospects for a third wave of encounters and reports.

First-Wave Reports: ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 32---------------------------------------

Of course, the Section appreciates every effort of amelioration and resistance. However, early law school reports indicate a first-wave tendency toward excess or gratuitous access accompanied by minimal amelioration: with some instructive exceptions, early law school responses to Solomon II generally may be described as providing equal access accompanied by a simple notice of disclaimer proclaiming the law school's continuing substantive commitment to its nondiscrimination policy and declaring that the new access is "compelled" by federal law. The latter half of the statement is overbroad and inaccurate because equal access and/or equal treatment simply are not "compelled" by the applicable federal regulations. Moreover, granting equal or excess access and treatment necessarily negates the first half of the statement because such access and/or treatment creates at least the appearance of belying the professed continuing commitment to nondiscrimination.

In sum, if your law school in fact is engaging uncritically in excess or equal access accompanied by the half-hearted and minimalist sort of amelioration represented by a simple disclaimer notice, your law school is doing more than Solomon II mandates and less than the AALS guidelines invite (while also violating the school's own antidiscrimination commitment, assuming it has one).

This early tendency may be explained in part as a default reaction in the absence of helpful information, such as the sort that this Report endeavors to provide. We thus hope that this Amelioration Report will help check that tendency. In particular, we urge schools that already have acted to reconsider promptly their actions in light of this Report, and in addition we hope that remaining schools will use this Report to help them devise appropriate and effective reactions. To this end, we urge individual faculty members to bring this Report and its contents to the attention of their deans, career services offices, faculty and students so that all interested parties may become more fully informed.

Second-Wave Reports:

The second, and current, wave of reports indicates that law schools have begun to read the regulations carefully and to tailor their responses in light of their contents. This more careful approach is necessary to avoid the backsliding that occurred in the first wave. This information therefore is useful both to schools that have not yet reacted, as well as to schools who overreacted in the first wave; in particular, we urge first-wave schools to revisit their decisions if they fall short of the lessons to be drawn from the second-wave reports.

The second-wave reports include instances of schools that decided to forego the affected federal funds because those funds were not significant enough for those schools to compromise their nondiscrimination policies and principles. More often, these reports indicate that schools have decided to continue receiving the affected funds but have sought to tailor access to the minimum that is reasonable by providing a suitable interviewing room that is separate from the career services facility. This tempered adjustment, though urged in this Report as the best route to balancing all interests because it is within the apparent ambit of the regulations,18 presently is being negotiated in the context of ongoing discussions between several schools and field-level military representatives. 19

Second-wave reports also indicate that schools have revisited the design of the services they generally provide to all prospective employers, thereby identifying reforms that are applicable to all employers and which, under the regulations, the military has no grounds to oppose when also applied to them. In addition to revising employer access to student directory information,20 schools have discussed or experimented with the following types of general revamping: limiting on-campus visits to one per year (most employers, but not the military, limit their visits to once per year anyway); moving all interviewing activities away from the law school and to the main campus of the university; limiting access only to employers with 500 or less fulltime employees; ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 33--------------------------------------- limiting access only to employers with no local office; limiting access only to employers who in the past three years have hired a certain minimum number of students. Similarly, it has been suggested that schools might charge a nominal fee to all employers for the use of on-campus facilities, which would be unproblematic for most employers but perhaps a problem for the bureaucratized military. Each of these options of course represents a different mix of "pros" and "cons" that every law school must assess for itself in light of its particular situation. These general revamping efforts, however, indicate a rising level of imagination and creativity in law school adjustments to the requirements of Solomon II and the regulations implementing it.

In addition, second-wave reports include instances of creative resistance strategies engaged in directly by students, deans, faculty and administrators. For instance, recent law school accounts report that students and/or deans and/or faculty and/or administrators have picketed the military when it has come on campus. Current reports indicate that these pickets have been peaceful informational "vigils" expressing a sense of social conscience; they concentrate on distributing informational leaflets to students interviewing with the military, as well as to others, that raise awareness of the human consequences effected through the discrimination that the military practices as a matter of policy. Recent reports likewise indicate that students who are gay, sometimes with the aid of gay-friendly students, have signed up for interviewing slots with the military despite the discriminatory policy that bans their employment (at least if they are identified as gay). In this way, gay students and their student allies occupy the military's on-campus time with interviews that, under its policy, will be fruitless for it. These direct-action strategies underscore the substantive irrationality of the policy in everyday operation, and therefore may be viable in a number of institutions, but they are not further discussed below in this Report because these activities do not represent law school or institutional actions.

Third-Wave Prospects:

As the foregoing summaries indicate, the effects of Solomon II and schools' responses to those effects continue to unfold, and probably will continue to do so for the foreseeable future: unless Congress rescinds or modifies this legislation,21 or unless a court invalidates it,22 or unless the AALS and other institutions repeal existing nondiscrimination policies,23 law schools will be confronted with both Solomon II and nondiscrimination policies indefinitely. Because law schools have no reason to suppose that any of these contingencies are imminent, the continued unfolding of these issues in a prospective third wave is probable. Thus, the trajectory of a prospective third wave will depend both on what law schools decide and on how they implement those decisions in everyday circumstances from year to year.

In brief, a prospective third wave either can continue the sort of momentum evinced in the shift from the first to the second wave or it can yield a sense of acquiescence, stagnation and even regression. The difference depends not only on what we decide now, but on how we act from now on. Therefore, law schools should not inadvertently approach these issues as if they represent an isolated or short-term situation. On the contrary, law schools consciously should incorporate into their initial discussions and decisions the need to sustain the actual implementation of their adjustments on both access and amelioration issues.

As the remainder of this Report demonstrates, the issues raised by Solomon II generate various categories of school decisions and re/actions, and each type of decision and re/action will require some sort of monitoring on an ongoing basis to ensure that law school adjustments to Solomon II do not gradually degrade into generalized backsliding. In particular, law schools need to monitor their actions with respect to each of the three types of access/treatment issues and the four types of amelioration issues discussed below to ensure effective, long-term amelioration. Consequently, law schools need to consider and determine as part of their initial decision-making process how to regularize and institutionalize the monitoring of the law school's actions in this matter for the long term.24 To help law schools manage successfully this ongoing issue, the remainder of this Report provides information needed by law school deans, career services offices and faculties to satisfy both the Solomon amendments and the applicable nondiscrimination policies of law schools and/or universities in both the short term as well as the long term. < ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 34--------------------------------------- /P>

Combining the information provided via the various law school accounts received thus far by the Section or the AALS, this Report first addresses a "Threshold Determination" and then turns to "Access Issues and Suggestions" and to "Amelioration Issues and Suggestions." Each part synthesizes the presently-available information to help schools craft adjustments that protect their students' continued receipt of federal funds as well as every student's right to a discrimination-free educational environment. Because these issues appear likely to remain active for the foreseeable future, the discussion that follows encourages law schools to take a long-term view of these issues and of our response to them.

IV.

Threshold Determinations -- Importance of Federal Funds

Before considering access and amelioration, a threshold consideration is whether a particular law school actually receives a significant amount of affected funds. For some schools, the answer may be no, in which case the school can simply forego the federal funds and continue banning the military from its campus. In fact, we have received reports that at least three schools already have taken this route; in these three instances, the military has not proceeded with administrative action, though initiation of such action likely is forthcoming.25 Among the reasons for schools to come to this conclusion are: the availability of alternative funds (especially among well-endowed private institutions), the actual amount of affected federal funds26 in relationship to the school's total financial resources, or a combination of the two. Therefore, the first step for all schools is to ascertain how much federal funding is actually at issue and then to decide whether that amount warrants nondiscrimination retrenchment in light of the school's values and its overall financial status.27

Related to this threshold consideration is the suggestion that a law school could undertake arrangements with a local lending institution as a substitute for federal loans. Because most of the affected funds are loans, this alternative would be geared to providing loans to students on terms similar or equivalent to federal loans offered through the three affected programs. This idea's feasibility of course depends on numerous factors, but in principle it could be explored at local, regional or even national levels: law schools could act singlehandedly, but they also could form local or regional consortia to provide viable substitute loan sources that substantially compensate for the loss of the affected federal funds. At a national level, the AALS could spearhead a like effort, perhaps in conjunction with other national educational associations. Though none of these variations on the basic idea have yet been tested, they illustrate how this threshold consideration can be approached with a high degree of creativity that goes beyond the status quo ante.

The remainder of this Report assumes that schools have gathered the relevant economic data to analyze their position vis a vis this threshold determination. The remainder of this Report further assumes that schools have concluded that they must provide some sort of access in order to retain vital federal funds. The remainder of this Report therefore focuses on access and amelioration, and, most importantly, on their interrelationship both in the short and long term.

V.

Access -- Issues and Suggestions

After making the threshold determination discussed immediately above, the first step in every law school's reaction to the Solomon amendments is to figure out precisely what sorts of access are mandated, and to what extent. This precision is imperative because any access in excess of the statutory requirements is gratuitous.28 The basic principle is to keep access, as well as a law school's overall interface or entanglement with the military, calibrated to the minimum required by the Solomon amendments in order both to retain federal funds and to keep the law school campus as discrimination-free as possible.

I. ACCESS:

Two types of access are contemplated by the federal regulations implementing the Solomon II amendment. These two are physical and informational access. In addition, this Report considers a third set of issues that relate to, but are apart from, "access" as such -- issues that address additional forms of interface and support. In each instance, the Report summarizes the presently-available information under each category of "access" and provides (in boldface) one or more recommendation(s) for proper law school action(s). As noted above,29 this discussion of access takes into consideration the likelihood that law schools will face these issues for the foreseeable future.

1. Physical Access:

To comply with the new regulations, law schools must provide physical access to the law campus (assuming they provide such access to other employers). According to the sample form letter included in the federal regulations, this access must be "reasonable" but the sample letter also contains language that might qualify this point.30 However, the actual regulations also impose a mandatory duty of "reasonable" accommodation upon the military: "military recruiting personnel shall (emphasis supplied) accommodate a covered school's reasonable preferences as to times and places (emphasis supplied) for scheduling on-campus recruiting."31 Thus, so long as schools are being "reasonable" in their "preferences" about "times and places" for "on-campus recruiting," the military is obligated by the regulations to "accommodate" the schools. The regulations thereby negate any inference that the military's unilateral preferences can dictate which precise room or location in the law school campus will be provided for military use. Under these circumstances, law schools that cannot forego federal funds or make alternative loan arrangements should make available a location for the military's use somewhere specifically on the law school campus, and this location must be reasonably suitable for the purpose of interviewing students.

Given the overall tenor of the regulations, and the conflicting mandates of Solomon II and applicable antidiscrimination policies, the author recommends that schools identify a location within the law campus physically distant from the career services center to minimize the harmful effects of the military's physical presence. If the military objects, the law school will have informal and formal opportunities during the administrative process to explain the good faith reasons underlying this action.32 This dialog is important, and should be undertaken earnestly by every school, to persuade the military that its demands beyond this access are unwarranted by the regulations and inconsistent with the military's mandatory duty to accommodate. Additionally, this dialog can help to demonstrate our profession's continuing commitment to existing nondiscrimination policies and their underlying values.

More specifically, this distancing is counseled in good faith by a confluence of five substantive factors, which should be explained to the involved military personnel: 1) the military does not in fact require a site specifically in the career services center to conduct its on-campus interviewing -- it simply needs a suitable or "reasonable" site; 2) on the other hand, all students literally do require physical use of the career services center because most placement business is transacted there; 3) when students generally avail themselves of the career services center they should not be forcibly subjected to the immediate physical presence of military personnel, precisely because those personnel are there on behalf of an employer with a formal policy of discrimination and they therefore are on campus both as the instruments and the symbols of their employer's de jure discrimination; 4) because the military in fact can perform its interviewing functions at another "reasonable" on-campus site, providing access to the career services center represents gratuitous and excessive access, undermining substantively the applicable nondiscrimination policies and conflicting with the positive duty to ameliorate;33 5) because the regulations reserve to the school a right of reasonable preference, and this preference is reasonable in light of the prior four factors. In sum, by providing a suitable but distant site for the military, all interests are balanced: the military can conduct its interviews with students electing to do so, all other students can go about their placement business without being confronted by the practice of discrimination in the core placement site of the law school, and the law school can help to minimize the detrimental effects of the ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 36--------------------------------------- military's on-campus discrimination while also preserving as much as possible its substantive commitment to nondiscrimination policies and principles.

2. Informational Access:

In addition to this physical access, the regulations also require that the military be provided access to student directory information, but only if the law school already "collects" that information, presumably for dissemination to prospective employers.34 However, many law schools do not "collect" such information for transmittal to employers. In this case, it seems that this form of access need not be granted to the military, either.

For those schools that presently do collect and provide to employers such information, Solomon II provides an opportunity to revisit and perhaps revamp that practice.35 Regardless of the original reason(s) for deciding to provide generally this type of service, informational access may or may not be a significant project from the law school's current perspective. Depending on this reassessment, this particular service may be discontinued without significant inconvenience to the school, its students or its other employers.

Therefore, the author recommends that law schools reconsider specifically the sort of informational access presently provided to nondiscriminating employers to determine whether any adjustments to such access are warranted. This reconsideration may be useful because it permits law schools to rethink the benefit that accrues to students or to the school from the provision of such information to prospective employers. It may be that the value of such access is so marginal for the students and/or the school as to be not worthwhile. If discontinued for other employers, such access probably need not be provided to the military either.

3. Additional Access and/or Additional Interface or Support:

Apart from providing a suitable or "reasonable" room on campus and, if applicable, access to directory information, the regulations do not require any further action to accommodate, support or promote the military's recruitment activities. In light of the summary discussion presented above, noting the need for limited complicity in the military's discriminatory practices,36 law schools should not provide any additional form of access, nor should schools take any additional actions to facilitate the military's physical or informational access. Because any further access and interface or support are substantively in tension with applicable nondiscrimination policies and the duty to ameliorate,37 law schools should limit their grants of new access to, and their interface with, the military to the actual requirements of the federal regulations, which specify only physical and informational access as described immediately above.38 To effectuate and communicate the compelled nature of this access, schools should avoid entanglement with, and instead aim for disassociation from, military on-campus activities.

Therefore, the author recommends that law schools specifically prohibit their career services centers from providing free amenities or support services for military on-campus activities. These courtesies might include collecting and transmitting resumes, scheduling appointment times for employers and students, reserving free preferred parking, providing escort/valet services for recruiters, supplying endless coffee service, free snacks or lunches, and the like.39 At most schools, these ancillary services are a simple courtesy that involve voluntary transfers of private property and, as such, cannot be demanded as a matter of right by any particular employer -- including the military. Moreover, these amenities are not necessary to the actual accomplishment of the interviews. Though each school is in a different position vis a vis these ancillary or courtesy services, the basic principle urged is that these "treatment" details in fact are apart from the "physical access" required by the regulations, and these services or interface also should be kept to a minimum.40 Again, disassociation should be the norm. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 37---------------------------------------

In addition, schools may instruct their employees not to provide advice about military employment. On this point, a range of policy options also exist: a school may instruct its employees not to initiate counseling conversations that include references to the military but only to respond to specific questions about the military; a school may go further and instruct its employees that the standard response to such questions always should be that the military discriminates against gays (and women);41 or a school may go even further and instruct its employees to say nothing at all about the military, except to refer students to the military. In sum, the overall interface between the law school and its career services center on the one hand, and the military on the other, should be kept to a minimum in every possible respect to avoid entanglement and to best comply both with Solomon II and with existing nondiscrimination policies.

VI.

Amelioration -- Issues and Suggestions

The access coerced by the Solomon amendments inevitably violates AALS nondiscrimination policies, but this violation is excused if accompanied by proactive steps of amelioration. Under this scheme, amelioration accompanies access precisely because it is what excuses noncompliance with AALS policy. Therefore, law schools should not permit any decoupling of the two, either in time or substance: to counteract detrimental effects, amelioration must be implemented simultaneously with and proportionately to the new access.

II. AMELIORATION

Amelioration, like access, spans several categories. This report addresses four types of possible amelioration: minimum, general, specific and social. To minimize the detrimental effects of new military access, and to maximize this occasion as an opportunity to promote substantively antidiscrimination ideals, every law school should take some action with respect to each of these four types of amelioration. As above, in each category this Report summarizes the presently-available information and then provides (in boldface) one or more recommendation(s) for law school action(s) with respect to each. As noted above,42 this discussion of amelioration takes into consideration the likelihood that law schools will face these issues for the foreseeable future.

1. Minimum Amelioration:

Notices that explain the government's coercion and that disclaim the law school's complicity in military discrimination is the basic and initial ameliorative step. It is the one step that all schools so far reporting have stated that they have taken. Law schools therefore should compose and post a disclaimer/notice explaining this matter to all students. A copy of a sample disclaimer notice is attached for ready adaptation and use.

This notice should be displayed in conspicuous places and in a pervasive manner. To be conspicuous and pervasive, three actions should be undertaken: 1) the notice should be published annually at the beginning of the fall hiring season in the law school newspaper and in similar law school publications; 2) the notice should be posted permanently and prominently within the career services center; and 3) the notice should accompany every instance where the military's presence will occur on the law school campus, including its posting on the door outside the interviewing room and on a wall inside the interviewing room. These postings of course could be supplemented with additional ones. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 38---------------------------------------

Although the law school accounts thus far received typically describe these notices as both conspicuous and pervasive, anecdotal experience suggests that these characteristics might dissipate in practice, and particularly with the passage of time. For instance, recent accounts include reports of students posting unauthorized notices for the military, which invariably are unaccompanied by the disclaimer. Similarly, recent accounts report that representatives of the military unilaterally have entered campuses to distribute information that of course is unaccompanied by the notice. Finally, a few accounts also report disclaimers being torn down, leaving the military's advertisement standing alone. These actions seriously negate the purpose of the disclaimer notice; if not counteracted continually by the law school, these actions likewise vitiate the amelioration that these disclaimers supposedly provide.

Therefore, the author recommends that law schools formally adopt an efficient and effective mechanism to ensure the conspicuous and pervasive nature of these disclaimers on a continuing and long-term basis. Depending on the particularities of a school's situation, and reflecting more general concerns about the long term discussed previously,43 one option to uphold the integrity of the disclaimer notices might be to designate a staffmember of the career services center as an official "Solomon monitor." This person would be charged with the continuing responsibility of ensuring that military notices are not posted without the disclaimer, and this monitor should be authorized to take prompt appropriate action to rectify any lapses regarding the disclaimer. Through this monitor or some other means, law schools similarly should arrange to conduct continuing inspections of all law school bulletin boards and facilities, and the administration and faculty should receive periodic reports based on these inspections, to keep everyone abreast of the law school's actual record on this minimal type of amelioration.44

2. General Amelioration:

The next ameliorative step is law school sponsorship of on-campus extracurricular programs devoted to education on sexual orientation and gender discrimination.45 The law school and its career services center therefore should sponsor, and provide financial support for, at least one such educational program every year. To best capture their ameliorative potential, these annual on-campus programs should be timed to coincide with the beginning of the fall hiring season. Moreover, these programs should commence at the same time as the new access is provided, and should not be delayed until some indefinite time or year in the future.

To design the most well-received programs, law schools should involve students proactively in this type of amelioration. In particular, law schools should ensure the involvement of relevant student groups in the conception, planning and execution of these programs: though all student groups ought to be allowed the opportunity to participate constructively in general amelioration, law schools proactively should elicit the involvement of the gay and lesbian student group (and the women's group) in particular. Because the military's current discriminatory policies and/or practices seems to most affect these two groups,46 they and their memberships should be invited to lead the planning of these annual programs.

Therefore, the author recommends that law schools commence this general type of amelioration with an invitation to these (and other) student groups to join the career services staff in a brainstorming session about programs or interventions that the most-affected students think may be most helpful to them. In addition, law schools should consider inviting to this brainstorming session local attorneys who are gay, or who have an interest in nondiscrimination issues, to involve the local legal community in the design and execution of these educational programs. Among these community representatives ought to be law school alumni, if possible. Similarly, interested faculty should be invited to participate in this brainstorming session. From this initial brainstorming session, the career services center, the student groups, the community representatives and the interested faculty can assemble a joint agenda of effective programs designed to educate the on-campus law school community of the "detrimental effects" that current sexual orientation and gender discrimination have on them, on their colleagues, on the legal profession, and on society. In like vein, students, community and alumni representatives, and interested faculty should be included in the planning and execution of all ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 39--------------------------------------- general amelioration programs from year to year.

3. Specific Amelioration:

The most important ameliorative step, in the author's view, is the identification and provision of employment opportunities for sexual minority students specifically. This step is crucial because amelioration, to be truly meaningful, should be tailored to the specific harm as much as circumstances permit. Though the harms caused by on-campus military discrimination can range widely, the most direct and likely specific harm is the deprivation of on-campus interviewing opportunities for a specific subset of students: while sexual majority students may receive additional interviewing and placement opportunities from the military's new access, sexual minority students will be completely and formally shut out of these new opportunities.47 Specific amelioration accordingly refers to the development and facilitation of new, and imaginative, gay-specific placement opportunities.

As with general amelioration, these initiatives, to be as meaningful as possible, should include the involvement of the most affected students, as well as community leaders, alumni representatives and interested faculty. Their involvement should range from conception and design to participation and execution. Finally, this involvement should be continued from year to year with consistency. The first step, as with general amelioration, thus might be to organize a brainstorming session, or to include "specific amelioration" issues in the brainstorming session discussed above under "general amelioration."

Therefore, the author recommends that the career services center of each law school work with students, attorneys, alumni and faculty to identify appropriate alternative services specifically tailored to the needs of its lesbian and gay students that presently are not provided, and that such services then be promptly funded and consistently provided. And because this sort of "specific amelioration" is the most targeted type of amelioration, the author further recommends that law schools instruct their career services centers to prioritize this part of the ameliorative process. These gay-specific, ongoing opportunities include sending students to the Lavender Law Conference, which takes place annually in different cities and which includes networking and interviewing possibilities. Likewise, sending students to other local, regional or national gatherings of gay and lesbian attorneys also would be appropriate. Similar types of specific amelioration include: working with local sexual minority bar associations to conduct local job fairs; working with local or state bars, or sections of these organizations, to identify potential employers; highlighting gay-friendly employers among existing interviewers, etc. To make these initiatives meaningful, these programs should include staff support for logistical arrangements, as well as law school funding to enable students to actually take advantage of these opportunities.

4. Social Amelioration:

In addition to the three types of amelioration noted above, law schools also will encounter opportunities to engage in additional ameliorative actions. These opportunities most likely will arise in the context of local or regional events. For instance, law schools may encounter opportunities to support local domestic partner and/or nondiscrimination initiatives. These and other examples of local issues most likely will implicate the same equality concerns as other ameliorative opportunities noted above because they help to foster (or impede) a local environment free of discrimination.

The author therefore recommends that law schools be alert at all times to opportunities for additional ameliorative steps, and that they proactively engage such opportunities as often as possible. In many localities the law school may be in a unique or strategic position to offer support of different types to local or state nondiscrimination initiatives. Such support can range from allowing community groups to use law school facilities to faculty resolutions in favor of such or similar initiatives. Whenever feasible, support of all types should be offered to help promote a discrimination-free profession and community. These opportunities can be managed on a case-by-case basis but, as a basic principle, law school policy should embrace this final type of amelioration to ensure maximum fulfillment of the duty to ameliorate. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 40---------------------------------------

VII.

Conclusion -- A Recap

Solomon II affects only three types of federal education funds -- mostly loans -- that may or may not be significant to particular schools depending on their overall economic resources. However, this legislation does not require law schools to act at all until they receive a formal letter of inquiry from the military. After receiving that letter, a simple administrative process begins that guards against any sudden termination of affected funds. Thus, hasty or panicky action is never necessary, although schools are well-advised to commence advance planning as soon as practicable.

Assuming that federal funds are indispensable to a law school's financial viability and that no loan substitutes exist, the AALS response to Solomon II presents to law schools a two-sided decision. The first side is how to tailor the new access carefully to avoid excess or gratuitous access, which logically is necessitated by the second side of the AALS' decision. These "access" issues are apart from additional support or interface, but ancillary services or contacts similarly should be kept to a minimum to avoid law school entanglement with military bias. The second side is how to fulfill positively the duty to ameliorate -- a duty that incidentally also provides every law school the opportunity to demonstrate and reaffirm beyond the bare minimum its continuing substantive commitment to nondiscrimination. Law schools are presented with four different types of amelioration, and should make some proactive and continuing effort regarding each. Thus, it bears emphasis that every law school's professional responsibility is to apply in good faith both aspects of new AALS policy -- carefully tailored access accompanied by proactive and effective amelioration. To do so, law schools should provide reasonable access, as required by the federal regulations, and focus their resources on attaining maximum amelioration while minimizing any additional or unnecessary interface with the military.

As this Report makes clear, this issue is not likely to disappear next year. Law schools therefore must respond to this issue with a recognition that it likely will require careful attention indefinitely. All decisions made now should include a careful consideration of their long-term effects and sustainability. In particular, schools need to devise and then institutionalize the means and mechanisms by which access will in fact be regulated and by which amelioration will in fact be maximized from year to year.

Finally, and aside from the issues of access, treatment/interface, and amelioration discussed above, law schools need to collaborate with each other and with the AALS to develop alternative strategies to overturn Solomon II. These strategies range from the legislative to the litigative, but the bottom-line point is that the current situation is likely to remain in place until and unless Solomon II is modified or rescinded. Therefore, law schools should urge the AALS to act promptly and resolutely in opposing this statute, increasing its efforts continually until some modification of Solomon II is achieved either through legislative or judicial action.

Endnotes

1 The Section Newsletter last year published three informational reports on this topic. See Section Newsletters, Spring 1997, Fall 1997 and Special Edition, December 5, 1997. Copies of these newsletters may be obtained from the Section Newsletter Editor, Professor Art Leonard at New York Law School (email: aleonard@nyls.edu; phone: 212-431-2156; fax: 212-219-3752). The contents of these (and other) Section newsletters also are available on the Section website, which is located at: "www.cwsl.edu/aalsqueer". For website information, please contact Professor Scott Ehrlich at California Western School of Law (email: SBE@cwsl.edu; phone: 619-525-1410; fax: 619-696-9999).

Additional information on this and related topics may be available from time to time on the Sectio ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 41--------------------------------------- n's listserv, "AALSQueerSection". This listserv is "closed" -- available for subscription only to section members in order to provide a relatively safe forum for discussion of Section issues. If you are a Section member, to subscribe send an email message to "majordomo@cwsl.edu" and include the following message in the body of the email (not in the "re" part but in the "message" part of the email): "subscribeAALSQueerSection". Upon receiving your subscription request, Scott will confirm your membership status with Art and then activate your subscription. If you are not presently a Section member and wish to subscribe, contact Art Leonard directly to first become a member.

2 "Solomon II" -- sometimes also called "Solomon-Pombo" -- refers to the most recent amendment in this ongoing saga. This amendment targets for cut-off three types of Department of Education funds whenever the Department of Defense finds a particular school in non-compliance with its terms. See infra note 3. Prior to this amendment, the "Solomon I" amendment enacted similar restrictions with respect to Department of Defense funds. However, the Solomon I amendment failed to have much effect because most law schools do not receive significant federal funds from the Department of Defense. Solomon I's failure prompted Solomon II. For more detailed information on this history, see sources cited in supra note 1.

3 These three programs are: the Federal Perkins Loan Program; the Federal Supplemental Educational Opportunity Grant (FSEOG) Program; the Federal Work-Study (FWS) Program. However, the Department of Education also has determined that most federal education program remain unaffected by Solomon II. Programs NOT affected include: the Federal Pell Grant Program; the William D. Ford Federal Direct Loan (Direct Loan) Program; the Federal Family Educational Loan (FFEL) Program; the State Student Incentive Grant (SSIG) Program, the Robert C. Byrd Honors Scholarship (Byrd) Program,; and the National Early Intervention Scholarship and Partnership (NEISP) Program. These latter programs are unaffected by Solomon II because they are not considered "grants or contracts to an institution." See Memorandum Gen-98-3, United States Department of Defense, Office of Postsecondary Education, January 1998.

4 Id. at 2.

5 See infra notes 25-27 and accompanying text (addressing this question as a threshold determination in every law school's response to this legislation).

6 A sample letter of inquiry is provided in Appendix B of the federal regulations. 32 CFR 216.6 (1997) This sample letter is important to the interpretation of the regulations because it is the only portion of the regulations that specify the level or type of access that the regulations contemplate. In its concluding paragraph, this sample letter states that "Successful recruiting requires that Department of Defense recruiters have reasonable access to students on the campuses and universities." However, this letter also is mixed because in its second paragraph it specifically requests that a law school's response to the inquiry "should highlight any difference between access for military recruiters and access for recruiting by other potential employers." This generalized request does not signify that difference is disallowed, and under general rules of construction it should not prevail over the more specific description of the required access as "reasonable access."

Apart from the sample letter in Appendix B, the body of the regulations contain further indicants important to this particular question of interpretation. The regulations themselves state that "military recruiting personnel shall (emphasis supplied) accommodate a covered school's reasonable preferences as to times and places for scheduling on-campus recruiting." 32 CFR 216.4(e)(1) (1997) This mandatory duty of accommodation in effect tracks the "reasonable access" framework of the sample letter. This mandatory provision, coupled with the specific "access" language in the sample letter, thus indicates that "reasonableness" and not "equality" is the applicable standard, notwithstanding the generalized request for "highlighting" difference that also is contained in the sample letter. See also infra note 19 and notes 30-33 and accompanying text.

Nonetheless, as noted below, the military at times has taken the position in their discussions with various law schools that the statute mandates "equal" access. The foundation of that position is not known. If it adheres to that position formally and finally, the time for a lawsuit challenge the statute "as applied" may have arrived. In this regard, the ACLU Lesbian and Gay Rights Projects announced by memo dated May 20, 1998 that the Project is "convinced at this point that the best strategy is to first challenge the way the Department of Defense is administering the amendment" and that the Project is "ready to represent schools" in a declaratory action to establish that the statute requires "reasonable" but not "equal" access. The Project executive director, Matt Coles, is interested in hearing from any person or institution with an interest in such a lawsuit. Contact the Project at 212-549-2627.

7 For more detailed information, see prior Section reports in sources provided in supra note 1.

8 As noted above, the regulations appear to vest in the Secretary of Defense (or the Secretary's designee) the authority to determine initially whether the regulations have been satisfied as applied to any particular school, and this administrative determination then is subject to judicial review. For more discussion of this point and its possible ramifications during the administrative process, see infra note 19.

9 For a more complete account, see 32 CFR 216 (1997). A copy of these regulations were previously provided as an attachment to the Spring 1997 Section newsletter.

10 To our knowledge, no court has interpreted these regulations. The interpretation provided here therefore is one read, and it is not intended, nor should it be taken, to constitute legal advice. Every law school should use its faculty's expertise or counsel's office to confirm or modify the interpretation offered here.

However, as noted in the text of the Report immediately above, the regulations vest in the Secretary of Defense an initial authority to determine whether a "school has a policy or practice that either prohibits or in effect prevents" the military from interviewing on campus; in practice, the regulations grant to the Secretary of Defense (or the Secretary's designee) an initial authority to interpret the regulations as applied to any particular school. This initial administrative interpretation of course is subject to judicial review, but the power of initial interpretation may affect the military's bargaining position and power with a particular school over the details of access.

Due to the foregoing, this Report attempts a "fair" rather than "aggressive" interpretation of the regulations: this Report eschews aggressive interpretation to avoid unproductive confrontation with the military over the meaning of the regulations. The idea behind this Report's measured interpretation of the regulations is to identify positions that are reasonable and sustainable, and that therefore require the military to take an aggressive position to support any demand by it for greater concessions from schools. At bottom, the aim of this Report is to delineate positions that are substantively in accord with the demands of Solomon II but that simultaneously ensure that law schools' adjustments to Solomon II do not occasion generalized backsliding from antidiscrimination gains or principles.

11 In 1990 the AALS House of Representatives voted unanimously to amend ByLaw 6-4 to add "sexual orientation" to the list of protected categories under the AALS' nondiscrimination provisions. Subsequently, the AALS Executive Committee enacted Regulation 6.19, which mandates that law schools receive from employers written assurance of nondiscrimination based upon ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 43--------------------------------------- any of the protected categories, including but not limited to, sexual orientation. Because the military refuses to provide such written assurances, and in fact cannot due to its policy of de jure discrimination, it has until now been barred from access to most law school campuses under ByLaw 6-4 and Regulation 6.19. Thus, Solomon II is designed to force either a change in AALS nondiscrimination policy or noncompliance with the AALS policies currently embodied in this ByLaw and Regulation. The AALS has not repealed in whole or in part its nondiscrimination policies, but it has decided to "excuse" noncompliance when noncompliance is accompanied with "amelioration." The AALS response to this legislation is discussed further below. See infra notes 16-17 and accompanying text.

12 During the past decade, and especially since the AALS ByLaw was adopted, many law schools and/or their universities have enacted nondiscrimination policies that include "sexual orientation" or its equivalent as a protected category. See generally Gene P. Shultz, The Inclusion of Sexual Orientation in Non-Discrimination Policies: A Survey of American Law Schools, 2 L. & Sexuality 131, 136-37 (1992). The Section is processing data collected more recently through a survey on current law school antidiscrimination policies regarding sexual orientation. For more information about the status of this survey, please contact Professor Marc Fajer (U. Miami). Additionally, law schools may be affected by state laws or local ordinances that similarly prohibit sexual orientation discrimination. See generally Developments in the Law--Sexual Orientation, 102 Harv. L. Rev. 1508 (1989) (broadly surveying social and legal conditions affecting sexual orientation discrimination). Thus, the Solomon legislation requires law schools to tread with care among the conflicting imperatives of nondiscrimination policies enacted by themselves, their universities or their local and state governments.

13 As discussed further below, these disclaimer notices represent the minimal type of amelioration that law schools have undertaken thus far. See infra notes 41-43 and accompanying text.

14 For a complete discussion see supra note 1 and Section newsletter issues cited therein.

15 For more discussion of ancillary or courtesy services, see infra notes 36-40 and accompanying text.

16 These actions are reported in Memorandum 97-46 of the AALS, which was sent to all deans of member and fee-paid schools on August 13, 1997. See Carl C. Monk, Memorandum 97-46, Military Recruiting at Law School Career Services Offices: Update on Actions Regarding Executive Committee Regulation 6.19, the Obligation to Provide Equal Opportunity to Obtain Employment without Discrimination, August 13, 1997. A copy of this memorandum was previously distributed as an attachment to the Spring 1997 Section newsletter.

17 It bears emphasis that this Report is from the author, and therefore provides only the author's views. The AALS plans to issue an amelioration report or informational packet during the summer of 1998, and may issue reports expressing varying views in the future. In addition, others may interpret the applicable regulations and other relevant data differently than we do here. See, e.g. infra note 19 (emphasizing that, subject to judicial review, the Secretary of Defense possesses initial administrative authority to interpret the implementing regulations).

18 See supra notes 11-15 and infra notes 30-33 and accompanying text.

19 In some instances, the military has expressed a preference for equal access, specifically "a degree of access to students that is equal in quality and scope to that afforded to other employers." Recent reports indicate that this preference in time may become the military's formal position in the statute's application. However, to our knowledge, the resolution of this issue has not yet been concluded at any school. While the military and various schools continue to negotiate this issue, the ACLU Lesbian and Gay Rights Project has announced that it would represent one or more law school(s) willing to be named as plaintiff(s) in a declaratory action to challenge the statute as applied. For more information, see supra note 6. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 44---------------------------------------

Generally, the regulations do not explicitly or implicitly mandate equal access; in fact, they indicate the reverse because the sample letter from the military to law schools that is included in the regulations specifically recites a request for "reasonable access." See supra note 6. In addition, the actual regulations also impose a mandatory duty of reasonable accommodation on the military; the regulations specify that "military recruiting personnel shall (emphasis supplied) accommodate a covered school's reasonable preferences as to time and places for scheduling on-campus recruiting." 32 CFR 216.4(e)(1) These two provisions thus specify "reasonableness" as the access standard and even mandate that the military "shall" be accommodating with respect to such reasonableness as to both time and place. On the other hand, the sample letter also requests that schools "highlight" any difference between access for the military and for nondiscriminating employers. See id. This request for "highlighting" does not per se signify that difference is disallowed, especially because nowhere in the regulations is that potential implication corroborated. On balance, therefore, the sample letter specifies "reasonable access" as the contemplated standard and the regulations direct the military to be accommodating with respect to such reasonableness, but the sample letter also potentially qualifies this specification with a more generalized reference to highlighting difference of treatment. Established rules of construction that prioritize the specific over the general thus would suggest that "reasonable" access is all that the statute requires.

Nonetheless, the regulations vest in the Secretary of Defense (or the Secretary's designee) a right of preliminary administrative interpretation, which means that initially the military will be able to reject suitable but separate facilities. This position, if actually taken by the military, would seem in breach of its mandatory duty to accommodate. This position therefore may be vulnerable to challenge in light of the regulations, but only litigation could dislodge this interpretation. See supra note 6. Therefore, litigation may be the ultimate recourse to temper an overly aggressive final military interpretation of the regulations; if so, the direction of such litigation will be of interest to other schools and, presumably, to the AALS. The complexities of that scenario are beyond the scope of this Report.

However, schools should not accede to a hasty compromise on principle because it appears that the military is approaching this issue with some caution. Although law school reports indicate that experience varies wildly in the field, this variance seems to stem from the fact that the initial application of Solomon II depends on the temperament of field offices, and apparently field staffs differ in temperament: some field officers are more aggressive than others.

Moreover, it appears that once a dispute arrives at the Pentagon, it may receive considered and tempered analysis: the information we have received thus far indicates that the Pentagon staffers (and political appointees) ultimately responsible for enforcing Solomon II are not eager to engage in protracted or detailed disputation with law schools or universities so long as the military is in fact receiving reasonable or suitable access. Finally, during this administrative process, law schools are not being threatened with a sudden cut-off of funds. Therefore, the administrative process provides both formal and informal opportunities, and should be used as an vehicle, to communicate and emphasize the good faith reasons for a "suitable but separate" policy to all military staffers, and especially to the Pentagon staffers (and political appointees) that will make the actual administrative decision of in/eligibility under the particular facts of a school's position.

Though this posture might change in the future, law schools at a minimum should use the administrative process to tailor access in accordance with applicable nondiscrimination policies unless directly ordered to do more by the Pentagon at the end of the administrative process (in which case, as noted above, litigation ought to be explored, probably in conjunction with the ACLU and ideally with the assistance of the AALS and other interested parties). ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 45---------------------------------------

20 See infra notes 34-35 and accompanying text (discussing why Solomon II may prompt some schools to reconsider their continued provision of this particular service).

21 At the 1998 AALS Annual Meeting in San Francisco, the AALS House of Representatives adopted, by an overwhelming majority, a resolution directing the AALS to lobby Congress for repeal of this legislation, or at least for repeal of the provisions that target the student financial aid funds specified above. See supra note 3. Since then, and in response to that resolution, AALS Executive Director Carl Monk has written letters to Representatives Solomon and Pombo, as well as to the White House, to the Department of Education, and to the Department of Defense urging repeal of the Solomon II amendment. In these letters, the AALS expressed the view that the amendment is unfair and that its underlying basis, the military's "Don't Ask, Don't Tell" anti-gay policy, is unconstitutional. The AALS formally has taken the latter position in pending litigation. See infra note 22. As of the date of this Report, the AALS had not received any acknowledgment or response to these letters.

22 The AALS Executive Committee previously had decided to file an amicus appellate brief in the case of Able v. United Sates, in which Judge Eugene Nickerson of the Eastern District of New York held that the military's "Don't Ask, Don't Tell" policy violates the equal protection clause of the Fourteenth Amendment. See AALS Memorandum 97-46, supra note 16, at 3. The case has been argued and, as of the date of this Report, remained under advisement. If upheld on appeal, this ruling would help to resolve the issues triggered by Solomon II because it would remove the grounds for the military's de jure discrimination on the basis of sexual orientation.

23 It appears unlikely that the AALS will move toward such a repeal, given the contrary resolution adopted overwhelmingly at the most recent annual meeting by the AALS House of Representatives. See supra note 21.

24 For one such suggestion relating to one particular point of the Solomon II scenario, see infra notes 42-43 and accompanying text.

25 The three schools presently known to have made this decision are New York University, Rutgers-Newark and Harvard.

26 See supra note 3 on the three types of affected funds.

27 It bears emphasis that this calculation depends on a law school's clear sense of the affected funds among the totality of federal funds that it receives. For a breakdown of affected and unaffected funds, see supra note 3.

28 Gratuitous access, as explained above, should be avoided because it is incompatible with substantive commitments embodied in law school, university, local or state nondiscrimination policies. See supra notes 11-15 and accompanying text

29 See supra notes 21-25 and accompanying text.

30 See supra notes 6 and 19 (elaborating the details of this issue).

31 32 CFR 216.4(e)(1) (1997). Although this language is fairly straightforward, the military has attempted to use its power over initial administrative interpretation of the regulations to extract "equal" access by resisting a school's "reasonable preferences" as to "times and places." While the military in some instances apparently seeks "equal" access, this matter has not yet been concluded. If the military were to prevail on this particular point in the administrative process through an oppressive o ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 46--------------------------------------- r overzealous use of its initial power to interpret, this abuse would be subject to judicial rectification through litigation. See supra note 19 (explaining further this point).

32 See supra notes 6-9 and accompanying text. And if no "reasonable accommodation" is forthcoming, law schools should consider seriously whether to accept the ACLU offer of litigation assistance. See supra notes 6 and 19.

33 See supra notes 11-15 and accompanying text.

34 Though the regulations are ambiguous on this point, it appears that "informational access" is the only instance where the statute might require "equal" access. See generally 32 CFR 216.4 (4) and (5) (1997).

35 For more discussion of general revamping, see supra note 20 and accompanying text.

36 See supra notes 11-15 and accompanying text

37 Id

38 Of course, law schools should avoid rudeness to, or unprofessional treatment of, the military's representatives. Professional civility is counseled not only by norms of common courtesy but by the fact that the field officers who interact initially with the law school may have considerable influence over the course of events. See supra note 19.

39 At some schools, the mechanism for scheduling interviews has been to place a sign-up notebook at the reference desk of the law library, which permits students to sign up without the active involvement of school staff. This arrangement also permits the military's activities to be less visible because student sign-ups at the reference desk do not call attention to that activity.

40 Again, this minimum level of interface should be accomplished with professional and courteous contacts between the law school and the military. See supra note 38.

41 Though the Solomon controversies have focused on sexual orientation, the military practices some forms of de jure discrimination on the basis of gender as well. See infra note 45. The issue of military discrimination therefore is of broader concern.

42 See supra notes 21-25 and accompanying text.

43 The idea of a monitor also responds to the need to plan for the long term. As noted above, schools need both to devise and to institutionalize the decisions made now because the standoff between Solomon II and applicable nondiscrimination policies is likely to remain in place for the foreseeable future. See supra notes 21-24 and accompanying text.

44 This "monitor" also could be designated the point person for the regularized and institutionalized maintenance of access and amelioration policies generally. See supra notes 21-24 and accompanying text.

45 The military presently discriminates on the basis of sexual orientation by prohibiting the employment or enlistment of openly ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 47--------------------------------------- gay persons. See generally, Kurt D. Hermansen, Comment, Analyzing the Military's Justifications for its Exclusionary Policy: Fifty Years Without a Rational Basis, 26 Loy. L.A. L. Rev. 151 (1992). However, the military also discriminates on the basis of sex and gender by formally foreclosing all women from certain types service -- types of service that generally are correlated to promotion and advancement within the military. See generally Christopher Horrigan, Comment, The Combat Exclusion Rule and Equal Protection, 32 Santa Clara L. Rev. 229 (1992) (criticizing the rule excluding women from career-advancing combat positions as justified only by stereotypic conceptions of sex/gender roles). In both instances, current military discrimination is de jure because it is incorporated into formal policy.

46 See supra note 45.

47 It bears mention that some accounts indicate that military recruiters, prior to their ban from law school campuses, sometimes hired only a few students. This information of course is school-specific, but a low hiring record on the military's part in prior years undermines the argument that some schools might hear from some of their students in favor of wholesale access. In brief, these arguments plead that expanded placement opportunities are at a premium in tight hiring times. But a low prior hiring record might indicate that the expansion of placement opportunities represented by on-campus access for the military in fact may be illusory or exaggerated.

Immorality & Illegality:Hard Time For a Victimless Crime?

Copyright 1998 JEREMY PATRICK (jaeman@geocities.com)

PREFACE

The purpose of this essay is to demonstrate that a derivative of John Stuart Mill's Harm Principle is a necessary factor in creating just laws.

I begin by showing that paternalism is philosophically indefensible and therefore the criminalization of harmless acts is usually unjust. Next, through examples, I show that legalizing and regulating most victimless "crimes" would increase individual liberty without substantially decreasing the rights or interests of others. The final part of this essay deals with logical conclusions developed from the first two parts.

In a diverse society, with a plethora of religious and moral views, what is a legitimate basis for making laws? My support for a modified Harm Principle is due to a belief that it fulfills the need for a secular alternative to religion-based law, in a manner that maximizes individual liberty and respects fundamental human rights.

There are two points I would like the reader to keep in mind while examining this essay. First, any reasonably intelligent individual can come up with instances where applying the Harm Principle leads to results inconsistent with our moral intuitions--that is to be expected. However, because a theory has some weak points does not prove that it is not a valid theory. The Harm Principle (as presented here) is not intended to be a bottom-line rule, applied regardless of consequences. Instead, it's meant to be an overarching guideline when making laws. I intend to show that for a law to justly violate the Harm Principle, an extremely compelling reason must exist.

Second, J.S. Mill, like many philosophers, created a strong formulation of liberty and then retreated from the position somewhat when effects seemed outrageous. Much as John Locke was instrumental in developing ideas of religious liberty, and then stated that no intelligent creature could believe in atheism, Mill, in the latter parts of On Liberty, states that harmless acts could still be restricted if they violate "good manners" or are "offenses against decency" (Wootton, p. 661). In effect, this dilutes the effect of the Harm Principle and makes it an impotent declaration. We must remember that many acts we consider expressions of liberty ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 48--------------------------------------- (such as gay men holding hands), were morally incomprehensible and outrageous to persons who lived centuries ago. Thus, they often weakened strong essays because of an inability to distance themselves from a religious heritage.

Therefore, the argument I make in support of a modified Harm Principle is based on some of the arguments of J.S. Mill, but not dependent on agreeing with all of his beliefs. In particular, I see no reason why the Harm Principle cannot be used in conjunction with a strong Rights-based philosophy, independent of conceptions of Utilitarianism.

I would like to thank Kitty Bottom and Matt Egging for proof-reading and suggestions.

"The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reason which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost."

--John Stuart Mill, On Liberty

INTRODUCTION

Embodied in that short paragraph, J.S. Mill expressed what should be considered a fundamental principle of liberty, which he called the Harm Principle: a person should be allowed to do whatever he desires until he reasonably and substantially harms another or intentionally creates a situation with a reasonable likelihood of harming another. It follows then that laws should regulate only acts that infringe upon another's rights or liberties. Why then do police spend 80% of their time regulating private morals (Simon, p. 211)?

The answer lies in society's inability to separate what they consider immoral from what they want to be illegal. How do they justify this? By assuming that their morals and their religious beliefs are correct and need to be imposed on others. This belief that society as a whole (acting through government) should provide for its citizen's moral well-being regardless of their wishes is called paternalism. Paternalism leads to the criminalization of innocuous activities like homosexuality, pornography, gambling, or even the purchase of liquor on a Sunday.

JUSTIFICATIONS FOR PATERNALISM

A portion of society will defend these laws on religious grounds. "If it says so in the Bible, it must be true." There is nothing wrong with being a devout Christian (or Buddhist, Muslim, etc....) as long as you realize that not everyone believes in the religion that you do and not everyone should be expected to follow its tenets.

Precisely because of the preponderance of different religions, it is unfair to expect society to bend knee to just one religion. Freedom of religion (or lack thereof) is exactly why the doctrine of separation of church and state was created...to allow one religion to dominate government infringes upon the rights of others to practice their religion. Law should not be a tool of forcing religious doctrine upon a people.

A more intellectually defensible, and therefore dangerous, justification of paternalism is called Positive Freedom. Drugs, we are told, make men slaves to their passions. Gambling leads to economic failure. Prostitution might make it hard for you to have ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 49--------------------------------------- meaningful relationships. Under this doctrine these activities are illegal because it is "bad" for you...in effect, we force you to act in your best interest (from our point of view) and to be "free".

"[Positive Freedom is]....to coerce men in the name of some goal (let us say, justice or public health) which they would, if they were more enlightened, themselves pursue, but do not, because they are blind or ignorant or corrupt. This renders it easy for me to conceive of myself as coercing others for their own sake, in their, not my, interest. I am then claiming that I know what they need better than they know it themselves."

--Isaiah Berlin, Four Essays on Liberty

(p. 133)

The dangers of this point of view are many. If we believe in it, we then must also believe (to stay consistent) that man is irrational, does not know his life better than we do, and is simply incapable of making good decisions...yet our faith in democracy rests on the necessary belief that man has rational free-will and is capable of making sound judgments.

"Paternalism is despotic....because it is an insult to my conception of myself as a human being, determined to make my own life in accordance with my own (not necessarily rational or benevolent) purposes, and, above all, entitled to be recognized as such by others. For if I am not so recognized, then I may fail to recognize, I may doubt, my own claim to be a fully independent human being."

--Isaiah Berlin, Four Essays on Liberty

(p. 157)

I've established a starting point for refuting the doctrine of paternalism and shown how the justifications of religious law and positive freedom are dangerous to our conceptions of individual liberty. Next, I'll cover the practical aspects of victimless crimes. These examples will show that we spend a majority of our scarce law enforcement and corrections resources to carry out unneeded laws.

EXAMPLES OF VICTIMLESS "CRI MES"

Gambling-- Gambling was once a tightly controlled activity, but in many places is becoming commonplace. Contrary to some predictions, cities that have legalized gambling have not been swallowed by a crack in the earth and sent straight to hell. In other words, crime rates and lawlessness have not increased as expected.

The tax money from gambling and profits from state lotteries help finance schools and other socially beneficial institutions. It is true that some people do become addicted and some people do lose all their money. According to USA TODAY Magazine, almost 5.4 percent of Iowans are pathological or problem gamblers (Horn, p. 35). Gambling is a good example of where people might say a so-called "victimless" crime certainly does harm others, such as spouses and children of the penniless gambler.

Therefore, a corollary of the Harm Principle is in order: The harm must be unjust. If I fire an employee for poor work-results, it could certainly be argued that I harmed him (economically, emotionally)--however, what is important is that he was justly harmed.

The answer to problem-gamblers is treatment and education. Because a minority (1 in 20) have probl ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 50--------------------------------------- ems with gambling, is not a sufficient reason to ban it for the vast majority of society who can gamble responsibly. Reductio ad absurdum, because some people still drop the blow-dryer in the bathtub is not sufficient reason to ban either blow-dryers or bathtubs. An example of how education could reduce gambling:

"...physicians have mounted a public campaign urging problem gamblers to seek help from physicians. Doctors should advocate low-risk behavior such as gambling with a buddy or with a predetermined loss limit...." (Waugh, p. 692)

Homosexuality-- Although rarely enforced, in many states sex between consenting adults of the same gender is still a felony.

The most common rationale for these laws stem from a Biblical notion that homosexuality is unnatural. I've already discussed the problems inherent with mixing religion and law. Furthermore, the argument of many Christian fundamentalists shows internal inconsistencies. A brief digression then, to demonstrate how many religious arguments of morality are illogical.

First, homosexuality is common in nature, as seen in a variety of animals. Second, the general scientific community has accepted that homosexuality is caused by genetics with some influence from environment. Third, (assuming homosexuality is unnatural, for the sake of argument) is everything that is artificial (i.e. "unnatural") evil? Marriage is a man-made institution, as is our insistence on monogamy...in effect, they are just as "unnatural" as homosexuality.

The same part of the Bible that forbids homosexuality (Leviticus 18:22) also prohibits gossiping (19:16), clipping the edges of a beard (19:27), and wearing clothes of half wool and half linen (19:19). Yet these prohibitions are completely ignored. In fact, a major theme of the Bible is to avoid greed and help your fellow man, yet rarely do we see the Church denounce wealthy businessmen who have more money than they need.

There is also a fear that homosexuality contributes to a breakdown of the family. Has reliable proof of this assertion ever been presented? From a common-sense examination it seems false as well. Straight couples will not be adversely affected by the existence of homosexuals and will definitely not avoid getting married just because some gay men live next door. In reality, a more logical and consistent position would be to encourage same-sex marriage, for marriage is the very institution most conducive to long-term monogamous relationships.

Drugs-- Many countries have less stringent drug laws than the United States. In England, for instance, heroin is dispensed to addicts through government controlled clinics, and in Denmark, marijuana is sold in small quantities at street-cafes.

Much of American society vehemently opposes legalization of drugs. If they would heed the experiences of England and Denmark, they would realize that at least a partial legalization of drugs would lift a tremendous burden from the shoulders of our criminal justice system.

In most cases, drug users are not harmful to others until they must rob to pay for their habit. We'll use heroin as our example drug.

First, the criminalization of heroin may reduce its use but causes drastic price increases. One out of six state prison inmates reported that they committed their offense to obtain money for drugs, according to a Bureau of Justice Report (Reiman, p. 35). A habit that now costs a heroin addict $100 a day or more could be provided legally for pennies a day in a government clinic.

Second, there is little hard evidence that heroin is a dangerous drug at all. Even James Q. Wilson, a defender of the prohibition on drugs, admits that "there are apparently no specific pathologies--serious illnesses or physiological deterioration--that are known to result from heroin use per se" (Reiman, p. 34).

Third, even if heroin or other drugs are harmful, it would make more sense to treat them like alcohol or tobacco. According to Jeffrey Reiman, author of The Rich Get Richer, the Poor Get Prison, cigarettes appear to be more addicting than heroin, contribute to cancer and heart disease (unlike heroin), and are more difficult to quit than heroin once addicted (p. 34). Heroin then, if treated like cigarettes and alcohol, would be legalized, its sale taxed, and the public educated of its hazards. Government regulated heroin production would ensure a safe product, instead of the impure street heroin, often "cut" with toxic chemicals like bleach or battery acid.

Since President Reagan began the "War on Drugs", police have devoted much of their time to identifying and arresting possibly harmless drug abusers. Because of the focus on drugs, American now incarcerates a higher percentage of its population than any other country in the world--over 1 out of every 100 adults. 60% of Federal prisoners were incarcerated for drug offenses (Reiman, p. 20, 39). Legalization would free the police to concentrate on real crimes like assault, rape, and murder.

CONCLUSIONS

It is indisputable that we arrest and incarcerate a vast number of persons for "crimes" that do not harm anyone but the "offender". This seems to occur either due to a religious majority forcing its views on a non-believing minority or because of a genuine belief that it is appropriate for government to force people to live "healthy" lifestyles.

Mill's Harm Principle gives us a moral authority to create and enforce legislation that is not based on paternalism, positive freedom, or religious law. In a diverse society replete with a thousand different religions and moral codes, a principle that decides what is worthy of legislation in a secular manner is truly admirable.

Our society seems to be at the point of accepting some victimless crimes, such as homosexuality and pornography, that do not harm the person who participates in them. Yet the next step is to accept behavior that does harm the participant, such as drug-use or assisted suicide.

This move seems unlikely. It is very difficult for a person to see another in pain (or slavery to drugs, for example) without an urge to help. Rousseau believed this urge to help others is part of what makes us human--"men would never have been anything but monsters, if nature had not given them pity to aid their reason" (Wootton, p. 427).

For the Harm Principle to work people must be willing to swallow their pity and their urge to help others to some degree. Persuasion through appeals to morality or reason are still legitimate methods of trying to stop someone from making a bad decision, but the use of force (either by an individual or the state) to stop someone from making a bad decision for himself is tyrannical and unjust.

"Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others, but he himself is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 52--------------------------------------- evil of allowing others to constrain him to what they deem his good." --John Stuart Mill, On Liberty. (Wootton, p. 649)

The Harm Principle is difficult to accept because it offends our moral sensibilities. It seems tremendously cruel to tell a mother that we won't stop her son from wasting his life as a drug addict because it would infringe upon his freedom or to explain to a wife that it was philosophically justifiable to allow her husband to blow their kid's college fund at the roulette tables.

However, we do something similar everyday as well people that their loved ones are dead because of a lifetime of cigarette smoking, alcohol addiction, or even driving a car (40,000 to 50,000 deaths per year). We simply should not make everything that is harmful illegal. It is demeaning to our concept of a human being. The answer lies not in making self-harmful activities illegal, but in educating people of their dangers.

As mentioned previously, the Harm Principle developed here is not intended as a hard and fast rule. It is meant to be a guiding principle when formulating law. This is the version of the Harm Principle that should become a legislative guideline:

If an act (or failure to act) does not:

a) substantially harm another person OR;

b) create a reasonable likelihood of harming another person OR;

c) infringe upon another's human or civil rights THEN

d) An extremely compelling and nearly indisputable reason must exist for the act to be justly prohibited

An example of an act violating the first provision would be murder--killing someone substantially harms another person. Drunk driving is a perfect example of the second provision, and trespassing is an example of the third provision (violation of right to property and privacy). There are good examples of acts that pass all three provisions but are still justly restricted under the final provision. For example, tax evasion does not substantially harm another, does not create a likelihood of harm, and does not violate anyone's rights...however, a compelling reason for its criminalization is the fact that the government would be insolvent if people were allowed to cheat on their taxes without penalty. Another good example is draft evasion in times of war where national security and public order are at stake.

In closing, if we truly believe that all people have an equal right to liberty, that man possesses reason, and that man has free-will and can make decisions, then it is a grave injustice to use force to keep him from committing acts that do not harm others.

REFERENCES

Berlin, Isaiah. 1969. Four Essays on Liberty. New York: Oxford University Press.

Feinberg, Joel. 1984. The Moral Limits of the Criminal Law: Volume 1, Harm to Others. Oxford University Press.

Horn, Bernard P. 1997. "Is There a Cure for America's Gambling Addiction?" USA TODAY Magazine. Vol. 125, Issue 2624, P. 34. ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 53---------------------------------------

Reiman, Jeffrey. 1998. The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice. Allyn & Bacon

Simon, David R. 1996. Elite Deviance. Allyn & Bacon.

Waugh, Douglas R. 1996. "The Die is Cast". Canadian Medical Association Journal. Vol. 156, Issue 5, p. 692.

Wootton, David ed. 1996. Modern Political Thought: Readings from Machiavelli to Nietzsche. Indianapolis: Hackett Publishing Co.

p. 427 Rousseau, Jean-Jacques. Discourse on the Origin and Foundations of Inequality Among Men.

p. 649, 661 Mill, John Stuart. On Liberty.

The Children's Living Bible. 1971. Wheaton, IL: Tyndale House Publishers.

Law, Morality and Sodomy: The Bowers Majority in Bed with Lord Devlin

Mary Sylla, Student

University of North Carolina at Chapel Hill

Introduction

The question of whether the law ought to enforce morality has been an issue of philosophical debate for some time. John Stuart Mill's assertion that the only justification for limiting one person's liberty is to prevent harm to another represents a starting point in the discussion, but his principle is not universally accepted within the philosophical community and certainly is not applied in the real world. Private consensual homosexual behavior is a recurring focus of this debate: it was the focus of the governmental report in Britain in 1965, which prompted Lord Patrick Devlin to explore the issue, and remains a common example of private activity which society seeks to regulate solely on the basis of its immorality.

Part I of this paper explores the philosophical discussion among scholars about the proper interaction of law and morality, beginning with Lord Devlin's lectures and continuing with criticisms of Devlin by H.L.A. Hart and, more recently, Joel Feinberg; Part II examines the Supreme Court's decision in Bowers v. Hardwick1 in light of the philosophical debate. By examining the philosophical arguments for and against intrusion into private morality, this paper demonstrates that the Bowers majority adopted the antiquated notion that law may enforce morality, even when the activity prohibited causes harm to no others and tramples privacy concerns, and ignored the more current philosophical arguments, ably pointed out by the dissent.

An underlying assumption of this piece is that Bowers was wrongly decided and that it represents an illegitimate intrusion into the area of private morality. The argument against legal enforcement of morality is driven by moral relativism and postmodernism: unless we are willing to say that the current morality is the one true righteous morality, free of socially constructed and therefore changeable influences, we should be wary of enforcing morality through the law.

Part I: The Philosophical Debate------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 54---------------------------------------

Lord Devlin

In The Enforcement of Morals2 Lord Devlin, a British judge, responded to the then-recently published Report of the Committee on Homosexual Offenses and Prostitution (the Wolfenden Report) which advocated decriminalizing consensual homosexual activity between adults in England.3 The drafters of the Wolfenden Report asserted that, unless the legislature was willing to equate crime and sin, "there must remain a realm of private morality and immorality which is . . . not the law's business."4 Devlin interpreted the Committee's position to mean that "no act of immorality should be made a criminal offense unless it is accompanied by some other feature such as indecency, corruption or exploitation."5 He disputed this position and argued that a society is a "community of ideas" including ideas about morality, that "without shared ideas on politics, morals, and ethics no society can exist."6 Since "recognized morality" is necessary to society "then society may use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence."7 Legislation against immorality is not only permissible but necessary to prevent the disintegration of society,8 in the same way that society may protect itself from subversive activities by outlawing treason.9 The criminal law exists for the protection of society, not, as Devlin thought the Wolfenden Report asserted, for the protection of the individual.

In Devlin's view, a society's morality is determined by the view of a "reasonable man . . . the man in the Clapham omnibus."10 Morality can be based on "disgust" and therefore society's "general abhorrence of homosexuality" is a sufficient basis for the legal prohibition of homosexual activity.11 Privacy can be balanced against the public interest in the moral order so that even private consensual conduct can be prohibited.12

H. L. A. Hart

Devlin's relatively simple argument has met with much opposition. The first response came from H. L. A. Hart, an American professor, who disputed Devlin's thesis saying that it assumes that immorality jeopardizes society, when in fact there is no evidence of that proposition.13 While Hart conceded that some shared morality is essential to the existence of society he questioned Devlin's leap from there to the proposition that a change in society's morality is tantamount to destroying it-- that society is equal to its morality14-- because that implies that the morality of a society can't change, or rather that if it does one society is actually disappearing, and being replaced by another.15 According to Hart, Devlin's argument amounts to an assertion that law should preserve existing morality, not that legal enforcement of morality is a good in and of itself.16 By contrast, Hart asserted that society cannot only survive individual differences in morality but can profit from them, though he does not specify exactly how it might profit.17

Finally, he said that even if there is a valid argument for the legal enforcement of morality, Devlin's argument as to how that morality should be ascertained is flawed: ". . . no one should think even when popular morality is supported by an 'overwhelming majority' of marked by widespread ' intolerance, indignation, and disgust' that loyalty to democratic principles requires him to admit that its imposition on a minority is justified."18 Hart's view of the connection between society and society's morality is more flexible than Devlin's. A society's morality can change without the society disappearing and democracy does not require the enforcement of uniform morality, as Devlin suggested.

In place of Devlin's justification for the full enforcement of morality, Hart developed his own argument for the partial enforcement of morality based on a distinction he drew between immorality which affronts public decency and that which merely 'distresses' others based on the knowledge that immoral acts are taking place.19 In Hart's view society may, for example, outlaw the public expression of bigamy20 or prostitution,21 because such could be considered an affront to public decency, as a nuisance,22 while it would not be justifiable to outlaw purely private manifestations of these types of behavior, or of consensual homosexual behavior in private,23 even though some might claim to be distressed by the private behavior as well.24 At this point Hart viewed it as a matter of balancing the distress from the knowledge that something immoral is taking place with individual liberty: "[n]o social order which values individual liberty could also value the right to be protected from this type of distress."25------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 55---------------------------------------

Joel Feinberg

A more recent review of the issue comes from Joel Feinberg.26 In the last volume of his series The Moral Limits of the Criminal Law, Feinberg criticized Devlin's argument as simply a series of confusions over "sometimes" and "always": he said that although society is a community of ideas in some sense, it does not follow that society must always share moral beliefs. "We cannot live together without any agreement, but it is not the sole alternative to no agreement that there be total agreement."28 Devlin's "social disintegration thesis," as Feinberg called it, seems to assert that society should view any change to the present morality, not just any morality, a threat; morality as it exists must be wholly preserved. Devlin confused the need to preserve some common morality to some extent with the preservation of a specifically defined morality, the present morality, in its entirety.29 The resulting problem is how to define the present morality. Feinberg pointed out that if morality is defined by reasonable people who may be racists or would-be witch burners, Devlin's argument is absurd; to avoid this absurdity Devlin would have to establish criteria for reasonableness beyond just the will of the majority of members of the community.30

Although Feinberg conceded that the criminal law may take morality into account, for example by lengthening sentences based on greater moral blameworthiness, contrary to Devlin he maintained that this does not justify moralitiy invading all of the criminal law.31 His argument likens the criminal process to "a great moral machine . . . [t]he question the liberal raises about this moral machine is: 'which actions should cause their doers to be fed into it?', and his answer is: 'only those actions that violate the rights of others.'"32 Although the criminal law does serve a moral purpose it does not follow that the criminal law's only legitimate purposes are moral ones, and that all more purposes are equally legitimate as reasons for criminalization.33

Part II--Bowers v. Hardwick

Majority decision

In 1986 the Supreme Court faced the same question the Wolfenden Report dealt with in 1957: whether private consensual homosexual sodomy could be properly prohibited by law. The majority of the Court held that it could, while four justices dissented. The arguments of the two sides, represented by Justice White's majority opinion and Justice Blackmun's dissent, correspond with remarkable similarity to the respective positions of Devlin and his critics, Hart and Feinberg. It is interesting that, despite the intense criticism Devlin's position has come under since its articulation over twenty-five years ago, the majority in Bowers adopted it, while the dissent was left to point out the more contemporary counterarguments, both legal and philosophical, by which the majority remained unmoved.

From the very beginning, the framing of the issue, the majority opinion devalues the liberal position and forces the burden of proof onto those who advocated removing the law from the regulation of private morality: while Hardwick framed his case in terms of a constitutional challenge to a state law which he felt improperly infringed upon his personal privacy, the Court articulated the question before them as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy."34 The Court immediately foreclosed Hardwick's privacy argument, saying that the rights to privacy cases which developed substantive due process to prohibit state regulation within certain spheres of private decision-makings was inapplicable: that "none of the rights announced in those cases bears any resemblance to the claimed constitutional rights of homosexuals to engage in acts of sodomy that is asserted in this case."35

By rejecting the privacy argument the majority decision refuses to recognize Hart's distinction between what is indecent and offensive, for example committing sodomy in public, and what is simply immoral, committing the same act in private. Refusing to extend privacy to consensual sexual practices, the majority decision undermines personal liberty and permits the state to ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 56--------------------------------------- regulated its citizens' most intimate decisions. It also ignores Feinberg's argument that the criminal law should only be concerned with certain areas of activity, excluding unoffensive immorality: that only certain questions should be fed into the great moral machine of the criminal law. By refusing to consider the areas of private consensual sexual activity off-limits for criminal legislation, the Court ignored the more recent philosophical arguments, and permitted itself to reject Hardwick's claim based on the substance of his activity.

The majority of the Court the engaged in a Devlinian analysis, emphasizing the consensus on the issue of the immorality of consensual sodomy, pointing out that sodomy was illegal at common law, forbidden by the original thirteen colonies, outlawed by all 50 states until 1961 and still illegal in 24 states on the District of Columbia.36 The Court's reliance on history and common conceptions of morality illustrates its allegiance to Devlin's way of thinking: the state has a right to regulate private activity to preserve current morality.

The majority opinion rejects Mill's principle, saying that victimless crimes should not escape the law, even when committed consensually and in private. If privacy in the home were permitted for this purpose, the Court asserted, "it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest and other sexual crimes even though they are committed in the home."37 The Court ignored the fact that Mill's principle would permit the state to regulate these other sexual crimes because they cause harm to other and are therefore not regulated as immoral per se.

In a sense the majority opinion goes further than Devlin in asserting society's right to regulate conduct based solely on its immorality when it says that Hardwick's argument that "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral is unacceptable . . . [is] an inadequate rationale to support the law."38 In response the Court simply asserted that the majority may enforce its moral convictions on the minority because the law is "constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed."39 Even Devlin said that the society's common morality could not simply be determined by majority rule but ought to be based on reasonableness, though it is unclear how the reasonable position would be determined, and how distinct from the majority it would be.

Again, the majority's argument is generally Devlinian and leaves itself open to criticism. Instead of examining an individual instance of the interaction between law and morality to determine whether it amounts to an enforcement of morality per se without other justification, the majority opinion says simply that the law cannot stay wholly separate from morality, and believes that the inquiry should end there. In this way it confuses "sometimes" and "always" in the same way Feinberg's argument asserts Devlin did, and assumes that the present morality is the only morality which should be protected.

Blackmun's dissent

Justice Blackmun's dissent on behalf of three of the four dissenting justices represents an expression of the Hart/Feinberg position. His opinion frames the issue in terms of individual liberty saying that the challenged statute "denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity."40 Blackmun's dissent views the question as one of privacy and individual liberty, rather than a fundamental right to commit homosexual sodomy; that "the Constitution embodies a promise that a certain private sphere or individual liberty will be kept largely beyond the reach of government."41 The question of private consensual sodomy should be left out of Feinberg's moral machine of the criminal law.

Blackmun challenged the majority's willingness to base its decisions on familiar moral judgments, that such moral judgments, "ought not to conclude [the Court's] judgment upon the question whether statues embodying them conflict with the Constitution of the United States."42 If the Court wants to enforce morality Blackmun would have it adopt a concept of privacy that "embodies the 'moral fact that a person belongs to himself and not others nor to society as a whole.'"43

Blackmun's opinion directly opposes Devlin's disintegration thesis, and points out that, in an ear ------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 57--------------------------------------- lier decision, the majority of the Court did as well: he quotes a 1943 case in which the Court said "we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization."44 Further, freedom to disagree with the majority on important matters is the most important to protect; since the issue of sexuality, "touches the heart of what makes individuals what they are we should be especially sensitive to the rights of those whose choices upset the majority."45

The dissent also recognizes Hart's distinction between indecent and immoral acts: the fact that the conduct could be punished if in public does not mean that the state should be permitted to regulate that behavior when it takes place in private.46 Blackmun's decision actually quotes Hart on the issue and points out that the majority of the Court fails to see the difference between laws that protect the public sensibilities an those that enforce private morality.47

Conclusion

John Stuart Mill proclaimed in 1859 that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."48 Justice White said in 1986 that "[v]ictimless crimes . . . do not escape the law [even] when committed at home,"49 and held that private consensual sodomy could be criminally prohibited by state. An analysis of Bowers in light of the philosophical debate indicates that the majority of the Court remains in the 1960s mindset of Lord Devlin, while the dissenters have considered and applied the more recent arguments of Hart and Feinberg. Gay rights activists may take heart: Lord Devlin's position, out of favor within the philosophical community, is closest to the rationale of the majority of the Court in Bowers, while the more recent philosophical consideration clearly supports the four-Justice minority. Hopefully, it will be only a matter of time before the views of the individual members of the Court, and therefore the status of the law, catches up with the philosophical debate.

1. 478 U.S. 186 (1986).

2. Patrick Devlin, The Enforcement of Morals (1965).

3. Id. at 2.

4. Id. (quoting the Wolfenden Report, paragraph 61).

5. Id. at 3.

6. Id. at 10.

7. Id. at 11.

8. Id. at 12.

9. Id. at 13-14.

10. Id. at 15.

11. Id. at 17.

12. Id. at 19.------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 58---------------------------------------

13. H. L. A. Hart, Law, Liberty and Morality 50 (1963): "As a proposition of fact it is entitled to nor more respect than the Emperor Justinian's statement that homosexuality was the cause of earthquakes."

14. Id. at 51.

15. Id. at 52.

16. Id. at 66.

17. Id. at 71.

18. Id. at 81.

19. Id. at 44.

20. Id. at 41.

21. Id. at 45.

22. Id. at 43.

23. Id. at 45.

24. Id.

25. Id. at 47.

26. Joel Feinberg, Harmless Wrongdoing (1988).

27. Id. at 135.

28. Id. at 136.

29. Id.

30. Id. at 142.

31. Id. at 154 (quoting Devlin).

32. Id. at 155.

33. Id. at 153.

34. Bowers, 478 U.S. at 190.

35. Id. at 190-91.

36. Id. at 192-93.

37. Id. at 195-96.

38. Id. at 196.

39.Id.------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 59---------------------------------------

40. Id. at 199.

41. Id. at 203 (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986)).

42. Id. at 199 (quoting Roe v. Wade, 410 U.S. 113, 117 (1973)).

43. Id. at 204 (quoting Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 777, n.5 (Stevens, J., concurring)).

44. Id. at 211 (quoting West Virginia Board of Education v. Barnette, 319 U.S. 624, 641-642 (1943)(emphasis added)).

45. Id. at 211.

46. Id. at 213.

47. Id. at 212.

48. Devlin, supra at 102 (quoting John Stuart Mill, On Liberty, p. 75)

49. Bowers, 478 U.S. at 186.------------National Journal of Sexual Orientation Law, Vol. 4, Issue 1 ------------ ---------------------------------END PAGE 60---------------------------------------