Sexual Intelligence, written and published by Marty Klein, Ph.D.
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Each month, Sexual Intelligence® examines the sexual implications of current events, politics, technology, popular culture, and the media.

Dr. Marty Klein is a Certified Sex Therapist and sociologist with a special interest in public policy and sexuality. He has written 6 books and 100 articles. Each year he trains thousands of professionals in North America and abroad in clinical skills, human sexuality, and policy issues.

Issue #126 -- August, 2010


Prop 8, Minority Rights, & American Democracy

Democracy does not mean three wolves and lamb voting on what's for dinner.

And that's why yesterday's federal court ruling overturning California's Proposition 8 is good news for all Americans. Prop 8 did something that should never be done--it put the question of a minority group's rights up for a vote.

America's courts have two functions, one them absolutely unique. Of course, our courts try cases of wrongdoing--someone's accused of breaking the law, they have their day in court, they're found innocent or guilty. In addition, however, our courts try a special kind of case--they judge whether a law itself violates the law. Sometimes the government creates this law on its own, through Congress, a state legislature, a city council, etc.. Sometimes, as in California, people vote for a law directly through a referendum--via propositions.

It's one of these laws-that-people-voted-for that Judge Walker found illegal--i.e., unconstitutional. He found that Prop 8 is a law that separates Californians into two groups, giving a certain right to one while denying it to the other. And he couldn't find any logical, evidence-based facts to justify the discrimination that Prop 8's law demands. So he had to overturn the law that people had voted for--because they voted for a law that is illegal.

Voters aren't constitutional lawyers, so they can't be expected to understand that sometimes they vote to create a law that is illegal. But that's what happened in California. And Judge Walker reminded everyone that a community can't do that--not even if 99% of the voters want to.

This is not "judicial activism," it's being a judge. Judge Walker was doing the job he was asked to do when appointed by President George H.W. Bush.

Yes, the will of the majority--at least, as expressed in the 2008 election that passed Proposition 8--has been overruled. Because the majority got to vote on something they shouldn't have been allowed to vote on--the rights of a minority. And because the majority voted to restrict the minority's rights based, as they themselves put it, on tradition, morality, and the religious beliefs of the majority.

And that's exactly what the majority in America is not allowed to do. It's right there in the 14th Amendment to the Constitution:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

And since government is in the business of granting marriage licenses, and government is in the business of guaranteeing the rights that result from being married, anything that restricts a special group from the right to marry cannot be legal. Even if the majority votes to create such a restriction.

Evidence of those good reasons? Judge Walker said there was none. Tradition, feelings of discomfort, and strongly-held religious beliefs are not, in 21st-century America, good enough reasons to deny a minority the civil rights enjoyed by the majority.

Moments after the ruling, the American Family Association launched a vicious attack on America's legal system. AFA said that because Judge Walker is gay, he cannot rule fairly on this case. If that's true, judges who drink shouldn't be judging drunk-driving cases; judges without children shouldn't be judging cases involving school taxes or teacher behavior; judges who own guns shouldn't judge cases involving the right to bear arms; and Catholic judges shouldn't rule on abortion cases.

Or is it that only Catholic judges should rule on abortion cases, and only judges who drink should rule on drunk-driving cases?

This makes it impossible to have any judges at all. There are no judges without personal lives, there are no judges who have nothing in common with the cases they judge. AFA has done a wonderful job of exposing themselves for what they are--completely cynical about the American system of democracy. They have always demanded the kind of "democracy" in which the Bible of a small number of people rules everyone else.

Until AFA deposes the American government and substitutes a theocracy, all Americans can breathe easier because of Judge Walker's ruling--in which he said that fear and discomfort with homosexuality, and unscientific ideas about the brains of homosexuals, are not a sufficient reason to deny government benefits to a certain group of people. You don't have to be a member of that certain group to appreciate that this ruling celebrates your country, and makes you safer in it.



America Wins, Government Loses Huge Obscenity Trial

John Stagliano was set free last week when a federal judge ended his obscenity trial on procedural grounds. If convicted, John would have been jailed for 32 years and had his home and business confiscated.

Instead, a few million dollars of your tax money was wasted by a Department of Justice investigation, purchase, viewing, and indictment of Milk Nymphos, Storm Squirters, and Fetish Fanatic. These are DVDs that depict legal activity, whose actors are all certified as over 18. Neither of these facts was challenged by the government.

The charge was simply that the DVDs appealed to the average person's "prurient interest," were "patently offensive," and "lack serious literary, artistic, political, or scientific value." These are the actual words of the Miller Test that guide the law. If you can get a jury to agree that a given recording, painting, book, DVD, or stage show meets these three tests, the government can declare the thing "obscene." It then loses its First Amendment protection, and it creator and distributor can be sent to jail.

That's right--the depiction of a legal activity can be illegal. Sex is so special, that we're not allowed to see or hear about things that we're allowed to do. I don't know why more people are outraged about this.

The first consideration--"prurient interest"--is not only archaic (do you know what "prurient" means?), it's completely subjective. How are people supposed to judge whether a film or song appeals to their neighbors' healthy or unhealthy interest in sex?

The second consideration--"patently offensive"--is equally subjective. Along with "prurient interest," this is a bizarre standard of lawfulness. If being "offensive" is illegal, there are some Congressmembers who shouldn't be allowed to wear shorts in public. And Joan Rivers should be executed immediately.

The third consideration--"lacks value"--elevates the personal opinions of a dozen random people to god-like status (especially if you're the defendant), and begs for carloads of experts. Is Milk Nymphos satire? An indictment of sexist prohibitions against breast-feeding in public? A documentation of creative use of enemas, or associated paraphilias?

When the Supreme Court first described the Miller Test in 1973, it was intended to codify the chaotic state of American censorship at that time. But it is shockingly subjective. It asks a jury of lay people to discern what their neighbors think about sex--a subject about which people are notoriously shy discussing seriously.

And so here was John Stagliano, in the year 2010--a year in which the planet is melting, and the Taliban wants to destroy our country, and millions of Americans have lost their jobs and are losing their homes--here was John Stagliano on trial in federal court for producing and selling adult videos to adults. Not one single customer had complained. The government had decided to go after him.

After an 18-month investigation, months of trial preparation, and days of courtroom activity, Judge Richard J. Leon, appointed by President George W. Bush, threw the case out on procedural grounds. The government's star witness and the government's lead prosecutor couldn't get their stories straight. They indirectly raised the question of the judge's own ethics, a question the judge firmly denounced.

I'm thrilled that John walks free, because he clearly did nothing wrong. But I'm disappointed that the jury did not get a chance to rule the DVDs not obscene. Judge Leon's decision demands that the government do a more thorough, professional job when censoring what we can watch in the privacy of our homes. I wish instead he had told the government to stay out of our homes and our bedrooms. I wish the jury had had a chance to say the same.

Instead, people like John Stagliano--yes, who are in it for the money, not for public service-- will have to risk everything so we can enjoy the American freedoms we take for granted. Next time you watch a porn video, or The Daily Show or a violent video game, next time you listen to a rap music on a CD or at a concert, give silent thanks to John. He almost went to jail for you and me.



A Federal Court That Trusts People More Than Government

There's a government agency in Washington whose job is deciding what's "offensive" and should be kept off broadcast TV and radio--the FCC. Their policy is terribly flexible. If material has to do with sexuality or execretory functions, it's "offensive" if the commissioners decide it's offensive. You don't have the right to see or hear "offensive" material on broadcast TV.

A federal court (including a judge appointed by President Bush) ruled this week that that's just too vague, "creating a chilling effect that goes beyond the fleeting expletives at issue here."

That ruling is good news for parents, consumers, and citizens.

Not because we desperately need to hear the words "bullshit" and "dickhead" on TV (the FCC says one is permissible, the other isn't). But because we desperately need to know that our media isn't being censored according to its point of view. And because broadcasters need to know what they are allowed to say. And because citizens need to know what their government won't let them hear or see. And because parents deserve the right to decide what their children will see and hear, rather than the government.

This is a court decision reminding us that we are a nation of laws, not subjective application of laws.

The FCC has tried to have it both ways. On the one hand, they claim they simply want to prevent the broadcast of words and pictures that are "offensive," claiming they're not trying to censor ideas. If so, they should simply provide a list of words and pictures that Americans can't broadcast. It's an infantile approach, but it would provide objective guidance.

But the FCC says a list of words isn't sufficient, because people could skirt censorship by using euphemisms to express "offensive" ideas. If enough people agree that "spanking the monkey" means masturbation, for example, this previously meaningless expression could suddenly be considered offensive, exposing a broadcaster to litigation.

So the FCC doesn't want to just censor offensive words. It's the ideas behind the words. Ideas that may surprise, shock, or disgust some people. Americans need the right to express--and experience--such ideas.

The people in the films Saving Private Ryan and The Blues use similar coarse expressions. The FCC decided that the same words used in one film were acceptable, but were indecent in the other. This is how the FCC attacks content.

"There should be other ways people can say things," say some. Well, if you're watching a movie in which soldiers are being shot at, and they say "oh dear," you're not being confronted as deeply. The same is true when old bluesmen are talking about racism or sex or anything else, and we're only willing to hear them say "oh dear."

Some Americans claim the right to feel comfortable when consuming radio or TV. There is no such right, and government should not protect people from such discomfort. When we invite external stimulus into our homes we run the risk of being challenged. We do have the choice of managing those challenges: we can subscribe to cable or not. Watch Bill O'Reilly or not. Turn the damn set off. Or not.

The FCC's vague policies have led stations to self-censor, especially since fines increased astronomically. Some TV stations no longer show Saving Private Ryan on Memorial Day. Several public radio stations actually cancelled Garrison Keillor's episode that used the word "breast" to mean "the heart of."

The court has wisely reminded us that the dangers of self-censorship are far greater than the dangers of individuals feeling personally uncomfortable, or of children hearing "bad" words.

That's the genius of the American system--a radical new assessment of the cost/benefit of free expression and censorship. This system requires a civic adulthood from us--tolerating words, pictures, and ideas that aren't our own.

Let's rise to the challenge of our First Amendment. Let's be willing to risk our personal discomfort for the good of the Republic--and a marketplace of ideas that has made America a special place in the history of the world.



Congress Requiring Internet Filtering--Through the Back Door

Last week, the House agreed to a Senate amendment to a bill that funds the wars in Iraq and Afghanistan. On the next-to-last page, it casually states:

"None of the funds made available in this act may be used to maintain or establish a computer network unless such network blocks the viewing, downloading and exchanging of pornography."

Yes, buried in a bill (HR4899) that allocates $75,000,000,000 for the military, as well as for border security, veterans' health, state education, and Haiti, Congress is preparing to require that all companies doing business with the federal government require internet filtering software.

"Pornography" is not a legal term, of course, so sincere (and not-so-sincere) people can disagree on what qualifies. But American workers, managers, and company owners will have almost no discretion about which millions of websites they will no longer have access to (and not even know it). Private internet filtering software companies will make these decisions. In secret. With no explanation or appeal.

This is an extraordinary assault on the rights of tens of millions of Americans. Of course Congressmembers, urged on by the usual porn-destroys-lives crowd, say "well, people shouldn't watch porn during work." Of course they shouldn't--because they should be working, not relaxing. And so there are many other sites people shouldn't access at work--gambling sites, craigslist, facebook, World Cup soccer, celebrity sites. And yet only pornography has been singled out.

No one is sponsoring a regulation that "workers getting federal money can't waste time at work." No one is proposing "workers getting federal money who perform poorly because they surf the web should be fired."

The ferocity with which groups like Enough Is Enough and Family Research Council lie, cheat, and steal in order to oppose pornography is frightening. They are so obsessed with porn--with sex--that they are willing to sacrifice our precious Constitution, which guarantees free expression. And then they scream in outrage when they believe their freedom of religion is trampled, or when they believe their religiously-oriented freedom of speech is curtailed.

Google is fighting the largest government on earth for the right to bring the uncensored internet to a billion Chinese. America spends tens of millions of dollars to bring uncensored information to Iran and North Korea.

There is absolutely no evidence that looking at porn at work is any worse than the other ways people waste time at work. Is it too much to ask that American citizens not be denied information at work just because some frightened, angry people are terrified of everyone's sexuality?




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