Due Process and Equal Protection
A rational basis for a due process claim.
"bear[ ] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare."
The information in this paper is relevant and important in the discussion of same-sex marriage. To legally sanction same-sex relationships would continue to normalize and legitimize relationships, which may include same-sex physical sex acts, that are detrimental to the individuals involved and to our society at large. What has been written here is to share information that should be a part of an open and honest discussion of homosexuality in light of the majority opinion written in the legal case, Goodridge versus Department of Public Health. Including this information, it could be logically argued that the marriage ban does meet the rational basis test for either due process or equal protection.
Included here is information that has been taken from several recent Boston Globe articles, books and articles written by those advocating for homosexuality. First quotes have been taken from the following website that contains the opinions from the Goodridge vs Department of Public Health. These quotes have been taken from the majority opinion written by Chief Marshall. Emphasis has been added.
“Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.
Protecting the welfare of children is a paramount State policy. Restricting marriage to opposite-sex couples, however, cannot plausibly further this policy.
This reformulation redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources.
For the reasons we explain below, we conclude that the marriage ban does not meet the rational basis test for either due process or equal protection.
Due Process claims: rational basis analysis requires that statutes "bear[ ] a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare."
Equal protection challenges: the rational basis test requires that "an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class."
After the Ball published in 1989
This is a book by Marshall Kirk a 1980 graduate of Harvard University. Co-author Hunter Madsen is a public-communications expert who has taught on the Harvard University faculty, designed commercial advertising on Madison Avenue and helped with the first national gay advertising effort, the Positive Images Campaign. It is a book advocating for homosexuality and a change in the strategy from a gay revolution to a public relations campaign for winning greater acceptance of homosexuality in America.
The campaign we outline in this book, though complex, depends centrally upon a program of unabashed propaganda, firmly grounded in long-established principles of psychology and advertising. (Kirk and Madsen, After the Ball How America Will Conquer Its Fear and Hatred of the Gay’s in the 90s, p.xxvi)
After the Ball has now detailed a comprehensive public relations campaign that should go a long way toward sanitizing our very unsanitary image. But we can’t hide forever beneath a coat of whitewash; we have to step out from behind the fašade eventually, and unless we’ve made some real changes by the time we do, people will see that we’re still the same old queers. Straights hate gays not just for what their myths and lies say we are, but also for what we really are, all the squeaky-clean media propaganda in the world won’t sustain a positive image in the long run unless we start scrubbing to make ourselves a little sqeakier and cleaner in reality. And as it happens, our noses (and other parts) are far from clean. In one major aspect, America’s homohaters have, like the proverbial blind pig, rooted up the truffle of truth: the gay lifestyle - not our sexuality, but our lifestyle - is in the pits. This chapter will tell you what’s wrong with a lot of gays, why its wrong, and how you can dance the new steps . . . after the ball. (Kirk and Madsen, After the Ball How America Will Conquer Its Fear and Hatred of the Gay’s in the 90s, p. 276-277)
This chapter’s purpose, therefore, is Constructive Criticism. We outline ten categories of misbehavior - things that many gays do, or are that are praised and idealized by the gay leadership as part of our lifestyle ’- that can no longer be borne, and for two reasons: they make us look bad to straights, and they cause needless suffering, lowering the quality of life within the gay community. (Kirk and Madsen, After the Ball How America Will Conquer Its Fear and Hatred of the Gay’s in the 90s, p.276-277)
Boston Globe 11/23/2002
In a November 23, 2003 article, “10 years’ work led to historic win in cour”,t written by Yvonne Abraham gives insight and background information to the case, Goodridge versus Department of Public Health. This court case is about same-sex marriage in Massachusetts. While credit may be given for the strong case made by the lawyers and plaintiffs in this legal suit, they prevailed with the SJC. It is in this critical issue of redefining the historical meaning of marriage that this article reveals some disturbing insight into the preparation of the case by the lawyers and plaintiffs. There is a comparison to the court case that led to Vermont civil unions. One important consideration is that the plaintiffs in the MA case are not a representative sample of the homosexual population. In many so called scientific studies involving homosexuality, sampling is a common methodological flaw Is this another attempt at deliberate deceit and deception by homosexuals to influence a greater acceptance to homosexuality in America? In this pape,r there are other newspaper articles and books that are cited to give a greater understanding into a more representative sample of homosexuals. But first the following quotes have been taken form this newspaper article, “10 years’ work led to historic win in court”.
“Bonauto told the group that Massachusetts, with the broad protections provided by its constitution and a Supreme Judicial Court steadily expanding the notion of family, was the ideal state in which to seek marriage licenses.”
“The case demanded careful calculation. The timing had to be right; the plaintiffs had to look like friendly next-door-neighbors; the strategy had to be tailored to avoid a decision like Vermont’s, which stopped short of marriage.”
"I was mad," Bonauto said. "I was thrilled we were still in the game, and they had this beautiful language in there about the humanity of gay people, but I couldn’t believe they had done something that I thought was a political judgment. I had never heard of segregating the word marriage from its rights and protections."
“The plaintiffs, who would serve as the public face of the lawsuit, were chosen carefully. They had to be varied in age, ethnicity, and profession. They had to be well-spoken, but not too political. They had to be longtime couples who had been faithful to one another. They had to stand up to rigorous criminal background checks, and to convince the lawyers that there were no skeletons in their closets”.
“Whittling down the legal arguments took hundreds of hours. Bonauto and her colleagues had to find a way to avoid the Vermont outcome, to win a judgment that went all the way — not just civil unions, but full-fledged marriage.”
“In Vermont, a major part of the plaintiffs’ case had focused on the rights and protections given to married couples, such as hospital visitation and tax benefits. That focus had left room for the Legislature to give gay and lesbian couples some of the rights and protections of marriage, without granting marriage itself. To avoid that in Massachusetts, GLAD lawyers had to convince the court that marriage is more than the sum of its protections.”
"We spent more time in Massachusetts talking about how marriage is a basic civil and human right," Bonauto said. "It cannot be splintered into state and federal protections. We talked about what marriage is in our culture."
Boston Globe 11/21/2003
This article from the November 21, 2003 Boston Globe, “Rise in syphilis found US, region”, by Stephen Smith reports on the increasing rates of syphilis among homosexuals. It repeats the themes found in other similar articles about syphilis and AIDS. The incidences of syphilis is falling in all other groups of people, but rising in homosexuals. This rise in the number of the cases of syphilis among homosexuals reflects a resumption of unsafe sex practices and foreshadows a possible second AIDS epidemic. The following quotes have been taken from this Boston Globe article.
“The increase in syphilis cases among men, specialists said yesterday, reflect complex changes in sexual behavior and the means of meeting sexual companions two decades deep into the AIDS epidemic, and they fear those same changes may foreshadow a new wave of HIV.”
“Massachusetts provides a telling snapshot of the challenges confronted by disease specialists.”
“The number of cases in the state nearly doubled from 2001 to 2002, from 106 to 197.”
"We’re talking about small numbers still, but numbers that are going in the wrong direction," said Dr. Alfred DeMaria, the state’s director of communicable disease control.”
“Still, specialists said, there’s no denying that syphilis has returned to the gay and bisexual communities with a ferocity not seen for more than 20 years.”
“Today, with the arrival of powerful drug cocktails, AIDS is just as likely to be viewed as a chronic illness that can be controlled. That belief, in turn, has led to a resumption of unsafe sexual practices, fueled by the use of club drugs such as ecstasy and sexual liaisons arranged over the Internet.”
Boston Globe 11/24/2003
In the November 24, 2003 edition of the Boston Globe there was an article about AIDS. “I was Infected Needlessly”, subtitled, “Risky Behavior and HIV Increasing Among Young Gay Men”, written by Bella English. The article was about a 24-year old HIV positive young gay man, Nate Longin who works for a Boston nonprofit health-care agency. In the article, he shares his story and the article repeats common themes found among homosexuals today.
The following is his response to finding out he was HIV positive.
“Longtin was stunned. Yes, he was gay, and yes, he’d had "unprotected" sex. "Still, it was the last thing I expected," he recalls. "I had not been promiscuous. When you’re 23, you just don’t think this is going to happen. You think you’re invincible. It’s like drinking and driving: You never think you’re going to crash the car."
The article also repeats the warnings and concerns about the status of AIDS today among homosexuals. Alarming is the age of those becoming HIV positive today, some of them as young as 13 years old. AIDS is a sexually transmitted disease.
A generation after the AIDS epidemic cut a devastating swath through the gay community, the number of gay young men who are newly infected with the virus is alarming. Despite 20 years of warnings about "unsafe" sex— and seeing the deadly results of the plague— gay men between the ages of 18 and 24 do not seem to be getting the message.
The new face of HIV is not the old face. Thanks to the "drug cocktail" that can keep opportunistic infections and full-blown AIDS at bay for years, many people today with HIV are living with it, not dying from it. So, the message received by a new generation of gay men is that HIV is just another sexually transmitted disease— that, like syphilis, it’s treatable, not life-threatening.
As a result, risky behavior is up. According to the Massachusetts Department of Public Health, 13- to 24-year-olds made up 8.7 percent of new HIV cases in Massachusetts in 2002, compared with 6.1 percent in 1999— an increase of more than 40 percent. And in a two-year HIV vaccine trial conducted in Boston, doctors found the rate of new infection among young males more than double what they had anticipated.
In the following quotes, Nate reveals how he became HIV positive. A story that is common for many homosexuals.
“He soon settled into what he considered a serious relationship. They were together nine months but broke up in the spring of 2002. "I started going out and drinking a little more," says Longtin. He met a man at a bar. After a few dates, they had sex.”
"A couple of weeks later, he stopped answering my calls," says Longtin, who is now 24. Among his friends, Longtin is known as thoughtful and careful: He doesn’t cruise bars or go online looking for an anonymous hookup. "My preference is a monogamous relationship," he says.”
Dr. Kenneth Mayer, a medical research director at the Fenway Community Health Center was also interviewed in the article. The following are his comments about the antiretroviral drugs used by HIV positive individuals.
“For the drugs to be effective, they must be taken every day, which many of his patients fail to do.”
“If you’re not 95 percent adherent, you are at great risk for the virus becoming resistant," he says”.
“Then there are the physiological complications and the long-term effects of the drugs. "We’re concerned about other malignancies and liver and cardiovascular disease," he says.”
The article also contains comments about homosexuals who are HIV positive and sexually active.
To Longtin, disclosing one’s HIV status to a sexual partner is a moral and ethical no-brainer. "I think it’s just wrong not to," he says.
Not all gay men feel the same way. At a recent support-group meeting for young HIV-positive men at JRI, two of the men say they would not tell sex partners— even though they had been infected by men who failed to tell them.
"You’re known as a ’gift giver’ if you have it," says one man. "There is definitely a stigma."
These last two quotes from the article are in reference to the life of 24-year-old Nate Longtin.
“As for Longtin, it has been a year since his diagnosis, a year of not living dangerously. His new life includes taking his drug cocktail twice a day and living with the side effects: some dizziness and vivid dreams”
"I choose to continue living my life," he says. He pauses. "But it’s still a terminal disease."
English ISP News 12/2/2003
A news article in the English version of the Inter Press News was written from the Port of Spain in the Caribbean. The article was about a speech given by Courtney Bartholomew for World AIDS Day. Bartholomew is head of the Medical Research Foundation (MRF) and an AIDS researcher. He did not advocate for the use of condoms as part of a change in behavior in his speech. Also, he expressed concern about relying on antiretroviral drugs, for two reasons, long term side effects from the drugs and increasing numbers of HIV-infected patients have developed resistance to all the antiretroviral drugs available to date. The web address for Inter Press News is www.ipsnes.net. The following quotes are taken from the article. “Lifestyles Must Be Changed, Says AIDS Researcher”, written by Peter Richards and published on Dec. 2, 2003 in the English IPS News.
"No amount of quilts, condoms and commemorative stamps on World AIDS Day are going to stamp out this pandemic unless we address the root causes," said Courtney Bartholomew, head of the Medical Research Foundation (MRF), in a speech here for World AIDS Day on Monday.”
“The virus’s root causes, according to the researcher, include poverty, permissiveness, promiscuity, prostitution and pornography.”
“Bartholomew said that during the early days of the AIDS pandemic, people were so "scared that many curbed their promiscuous lifestyles".
"After a few years and particularly with the advent of antiretroviral drugs, it is business as usual," he added.”
“But relying on drugs might be a mistake, according to Bartholomew.”
“Whereas these drugs are prolonging the lives of many — albeit not all — we do not know for how many years one can continue taking them without eventual long term and serious toxic effects.”
"Moreover, it is not commonly known that in the best centres of HIV/AIDS treatment and care in the United States, the stage has now been reached where between 35 and 65 per cent of HIV-infected patients have developed resistance to all the antiretroviral drugs available to date," he added.”
The following historical information has been taken from books and articles written by those advocating for homosexuality. A bibliography of sources is at the end of this paper.
gay male clone, circuit parties, and AIDS
Beginning in the early 1970s, and through the following two decades it was social and cultural events that were primarily of historical significance in the continue development of the concept of the modern homosexual. Three of them may be seen in the gay male clone, circuit parties, and AIDS. All three of these are intertwined together. The gains of greater social and political acceptance were offset by the consequences of behavior. Although homosexuals were achieving acceptance by the status as a homosexual, who one is, it was the consequence of homosexuality, what one does, that was of overwhelming larger historical significance. The disease, AIDS, ravaged the homosexual population and greatly affected the society at large. What continues to be generally over looked today is that AIDS is primarily a sexually transmitted disease, and particularly so with some of the sexual practices that take place in the homosexual lifestyle. There has always been and still, continues to be today a minority of those that have accepted the homosexual identity who bravely speak out that AIDS is a consequence of behavior and sexual practices. They are overwhelming shouted down by a majority, of those that have accepted the homosexual lifestyle and who fail to take personal responsibility. Instead demanding that they be allowed to live their lives as they please and even doing those things that may have deadly consequences. There are those homosexuals who want to have sex: whenever they want it, however they want it, and with whomever they want.
From Stonewall to the first AIDS alert was only twelve short years
. . . AIDS did not appear out of nowhere. It was a direct result of the sexual revolution, which my generation unleashed with the best intentions, but whose worse effects were to be suffered primarily by gay men. In the West, despite much propaganda to the contrary, AIDS is a gay disease and will remain one for the foreseeable future. (Paglia, Vamps and Tramps. p.68)
Throughout history the male homosexual was often based on non-gender conformity, that is the effeminate male. Although this still continues today, a rejection of this stereotyping is seen in the gay male clone. There are two books written by homosexuals themselves that defines this gay male clone. Life Outside is by Michelango Signorileis. He writes about gay men, masculinity, the gay male clone, and circuit parties. Martin Levine was a sociologist, and university professor. The book, Gay Macho, is an edited version of Levine’s doctoral dissertation. He died of AIDS complications at the age of 42.
A key factor in the formulation and promulgation of the cult of masculinity that also dismayed the gay liberationist was that the dominant gender style was now supermasculine. It was as if the 1960s and the counter culture androgyny never occurred. Gay male culture was still reeling from the crisis of masculinity that had affected homosexuals for decades. Gay men, attracted to the masculine ideas they’d cultivated in the furtive days prior to Stonewall, seemed now institutionalize and exaggerate a heterosexual-inspired, macho look. The 1970s clone was born, and his look explored on the streets of rapidly growing gay ghettos in dozens of American cities. (Signorile, Life Outside, p.51-52)
Clones symbolize modern homosexuality. When the dust of gay liberation had settled, the doors to the closet were opened, and out popped the clone. Taking a cue from movement ideology, clones modeled themselves upon traditional masculinity and the self-fulfillment ethic. (Yankelovitch 1981) Aping blue-collar workers, they butched it up and acted like macho men. Accepting me-generation values, they searched for self-fulfillment in anonymous sex, recreational drugs, and hard partying. Much to activists’ chagrin, liberation turned the Boys in the Band into doped-up, sexed-out, Marlboro men.
The clone in many ways was, the manliest of men. He had a gym-defined body; after hours of rigorous bodybuilding, his physique rippled with bulging muscles, looking more like competitive body builders than hairdressers or florists. He wore blue-collar garb-flannel shirts over muscle T-shirts, Levi 501s over work boots, bomber jackets over hooded sweatshirts. He kept his hair short and had a thick moustache or closely cropped beard. There was nothing New Age or hippie about this reformed gay liberationist. And the clone lived the fast life. He partied hard, taking recreational drugs, dancing in discos till dawn, having hot sex with strangers. (Levine, Gay Macho, p.7-8)
Circuit parties are unique to the homosexual lifestyle, but are similar to other parties called raves and can be traced back to the popularity of disco music in the 1970s. The popularity of these circuit parties has grown tremendously over the past 10 years. There is no uniform definition of a circuit party, because these parties continue to evolve.
However, a circuit party tends to be a multi-event weekend that occurs each year at around the same time and in the same town or city and centers on one or more large, late-night dance events that often have a theme (for example, a color such as red, black or white). (Mansergh, Colfax, Marks, Rader, Guzman, & Buchbinder, The Circuit Party Men’s Health Survey: Findings And Implications for Gay and Bisexual Men.; p.953)
Because these circuit parties are unique to the homosexual lifestyle, it is from the homosexual media itself that most of the information about these parties comes from. Although there has been a study published in the American Journal of Public Health, which is quoted from above. Also USATODAY.com published an article, ‘Worries crash circuit parties’, 06/20/2002. The information that is coming from all sources is strikingly similar. That is the high prevalence of drug use and sexual activity, including unprotected anal sex.
The circuit-with its jet set A-List of well-heeled and muscular gay men- had actually been in existence in the pre-AIDS time, albeit it was small and very exclusive. It consisted in the late 1970s into the early 1980s mostly of a about thousand men who flew back and forth between New York and Los Angeles, going from the famous parties at the Flamingo and the Saint in New York to the ones at the Probe in L.A. But in the 1990s the circuit grew to consist of parties all around the country, indeed around the world-from Miami to Montreal, Vancouver to Sydney-with tens of thousands of men who regularly attend events. In the early 1990s there were only a handful of events; by 1996, according to Alan Brown in Out and About, a gay travel newsletter, there were over 50 parties a year, roughly one per week. Typically, these are weekend-long events, more a series of all-night (and daytime) parties stretching over a few days, often taking place in resort hotels, each punctuated by almost universal drug use among attendees. (Signorile, Life Outside, p.64-65)
According to health officials, Palm Springs, CA has developed one of the highest per capita rates of syphilis in the nation, driven mostly by gay and bisexual men. Palm Springs is where the White Party is held annually in April. The 2003 party raised concerned among public health officials and some gay leaders that the event would feed the spread of syphilis.
But charities - along with public health officials and many gay rights leaders - are increasingly uncomfortable with what has become the dark side of circuit parties: widespread drug use and random, unprotected sex that some charities say is just the type of behavior they discourage. (‘Worries crash circuit parties’. www.usatoday.com/news/nation/2002/06/20/circuit-parties-usat.htm)
It is the dramatic increase in the incidences of syphilis in the past two years by those who have accepted a homosexual lifestyle and a group usually titled MSM (men who have sex with men) that is alarming. Once again it is the homosexual media that has been expressing concern, along with the government’s Center for Disease Control. The significance of this increase in syphilis is as an indicator for the increase in unsafe sex practices and precludes a possible dramatic rise in the incidence of AIDS again. The following quote is from the online edition of the Advocate, a gay magazine and is from a commentary that was published on October 13, 2003.
We must ACT UP again! We have to take to the streets armed with our rage and claim our health and dignity. We need to scream bloody murder, point the finger of shame, and demand action. But this time we’re not going to scream at the White House or shame the Vatican or demand action from the Department of Health and Human Services or the Centers for Disease Control and prevention. This time we’re going to scream at ourselves, shame ourselves, demand action from ourselves-nobody but ourselves. (Is the badge of the sexual outlaw killing us? http//www.advocate.com/html/stories/900/900_actup.asp)
This alarming trend surrounding AIDS was also being reported in a 1994 article published in the New England Journal of Medicine. It was on the declining age of HIV infection. For the years of 1987 to 1991 the average age was less than 25 years. This is also the latter period referred in the following quote. “During the latter period one of every four people newly infected with HIV was younger than 22.” (Rosenberg, Biggar, & Goedert, Declining Age at HIV Infection, p.789-790) According to the November 24, 2003 Boston Globe article, “I was infected needlessly”, it has fallen to individuals 13 years of age for the keeping of AIDS statistics.
The three social and cultural events from the 1970’s AIDS, the gay male clone, and circuit parties continue to be of historical significance and increasingly so in the development of the concept of the modern homosexual. They do so because there is a new generation of homosexual men, who once again are participating in even larger numbers in this harmful lifestyle. The current generation of homosexual men who are participating in this harmful lifestyle are suffering the same consequences as the previous generation. And these consequences carry over to affect the society at large as it did with the first AIDS epidemic among homosexuals.
What has been written here is to share information that should be a part of an open and honest discussion of homosexuality in light of the majority opinion written in the legal case, Goodridge versus Department of Public Health. To legally sanction same-sex relationships would continue to normalize and legitimatize relationships that are detrimental to the individuals involved and to our society at large. Including this information, it could be logically argued that the marriage ban does meet the rational basis test for either due process or equal protection.