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June 10, 2008


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Patrick S. O'Donnell

"The policy overstates the impulse of sexuality by conflating identity with behavior." I absolutely agree, but I do wonder if at times the Gay and Lesbian movement struggles for equality have fallen prey to just this sort of thing themselves, that is, conflating their identity with sexual behavior. In any case, I find this post spot on in all respects. Thanks.

David S. Cohen

The Ninth Circuit has not upheld the policy. Last month's Witt decision - - applied intermediate scrutiny to it and then remanded for further consideration.

Kathleen Bergin

Right, thanks for clarifying David.

Interstingly, Pietrangelo cites the 9th Circuit's 1997 pre-Lawrence "rational basis" decision in Holmes v. Cal. Army Nat'l Guard seven times while reducing its May '08 decision in Witt to the footnotes. Even then it really just acknowledges Witt's lack of deference and its resolution of various claims (remand on DP, dismissed on EP, etc.).

I don't know, maybe the clerks already had Pietrangelo drafted and its the best they could do in the intervening two weeks. (ha).


I'd like Professor Bergin, once again, to examine a story about the homosexual agenda and it's impact on others who are not homosexual. I realize this isn't in the United States, but since this involves freedom of speech and religion, this is right up her alley.

Let's go to Canada, to Alberta and the case of Pastor Boissoin versus Professor Lund. Boissoin is an anti-Homosexual agenda pastor. He published a letter basically declaring that it was time to fight the homosexual agenda and propoganda in schools, etc. This was published in a local newspaper.

Professor Lund, a local professor at a University nearby, sued Boissoin in the Alberta Human Rights council. In November of last year, the council concluded that Boissoin and his group had violated human rights law. See this link: In that opinion, para. 357 the commission explicitly held that the right to not be offended trumped the rights to free speech and religion guaranteed by the Canadian Charter.

Well, the punishment phase came down May 30 for that case. Here are the remedies that Dr. Lund gets, for being offended on behalf of the gay community:

Pastor Boissoin may no longer, in any setting and to anyone, including sermons or email "disparage" homosexuality, or Dr. Lund. All of his websites have to scrub any reference anything that could be considered "disparaging" or bad about homosexuality. This penalty is forever--no time limit. Boissoin is gagged for the rest of his life, as well as his ministry.

Boissoin is not allowed to say anything bad about Dr. Lund or his witnesses ever, in perpetuity. He is to pay Lund (who is not homosexual himself) a fine because Lund went to some trouble to file the complaint, and Boissoin has to pay Lund's witnesses costs.

Not just that, but Boissoin has to publically apologize for his beliefs in the same newspaper his letter was printed in. I.E. he is being forced to publically recant his religious beliefs as wrong. Here is a link to the damages award:

Now, I may be wrong, but I seem to recall lots of blather about how gay rights isn't a threat to anyone and so forth. This seems to me to be quite a threat: a pastor, a minister of religion, is being forced by a complicit government and at the request of a gay rights activist, to publically recant his religious beliefs and apologize for them, and to never ever say anything that could be construed as critical of homosexuality ever. Not just hateful, not even illegal--just possibly critical. There's no defense of truth, either.

So, to recap, I'll quote Evra Levant: A Christian pastor has been given a lifetime ban against uttering anything "disparaging" about gays. Not against anything "hateful", let alone something legally defined as "hate speech". Just anything negative.

So a pastor cannot give a sermon.

But he must give a false sermon; he is positively ordered to renounce his deeply held religious beliefs, and apologize to his tormentor for having those views.

And then that pastor is ordered to declare to his entire city that he has renounced his religious views, even though he has not.
/close Evra Levant quote.

Sounds like Saudi Arabia or China! And this is what gay rights activists are agitating for. Oh, the best part? The state government actually intervened to.... support the gay rights complaint and to shut up the free speech and religion of the pastor. They rarely intervene.... but this was important enough to do so! State coercion of beliefs, clearly.

Professor Bergin, how long until this happens in the United States? After all, the Canadian Constitutions protection of freedom of speech and religion didn't bar this result, why wouldn't the same thing happen here?

Kathleen Bergin

I'm confused. Wouldn't a rights based defense of Pastor Boissoin's inflamatory comments about homosexuality apply with equal force when a soldier says something as innocuous as "I am gay"?


Not necessarily, Professor. Let me ask you this: would the ACLU be free to fire one of their attorneys who came out and said something like the Ten Commandments are important to our legal history, so there is nothing wrong with them being displayed in a courtroom?

I would say that the ACLU would be free to do so. Why? Because the ACLU is a voluntary organization. So is the US Military. Under normal rules, any citizen can go around saying stuff about General so and so. But you couldn't in the military. Freedom of association? It doesn't apply in the military either--look what happens to soldiers who go AWOL.

Even more pertinant: The New York Times has in the past published military secrets. If a soldier did that, they could probably be executed for treason.

Point being, the military and the members of it have 1) signed up voluntarily, despite Code Pink's histrionics to the contrary, and thus have agreed to obey those rules, including the restrictions on speech. 2) The military has different rules. Rights I have as a civilian don't apply necessarily to the military. That's why they have their own justice system with the Uniform Code of Military Justice.

The original basis for the DADT policy was, recall, a Clinton idea. Unit cohesion and other very desirable military qualities are deemed to trump some soldiers individual rights. After all, ordering some Marines to "Take that beach" will likely result in some casualties.... definitely a tort that's foreseeable, after all. But necessary in a military context, where the goal is to kill people and break things (and be prepared to do just that at all times). That's what a military is for, not a social justice experiment.

Women are not allowed to serve in many combat positions as well, for some similar reasons of unit cohesion and of course physical limitations. I am almost certain you are horrified by that restriction as well, though why you want to put women into an environment where they may get captured and then subjected to the mercies (HA!) of our enemies is beyond me.

Tell you what: let's see you agitate for diversity in political representation amongst law school faculty (i.e. actually having someone to the right of Ted Kennedy more than as a token position) as hard as you promote turning the military into a social science experiment. Because isn't that really a shocking display of ideological bias and prejudice?


I'll point out that Eugene Volokh picked up the same story as I described above (Boissoin) today here:

So this isn't just the interpretations of a clearly biased and unintelligent knuckle-dragger like all Conservatives must be, bitter and clinging to our religion, etc etc etc.


Do you know that it's high time to receive the loans, which would make you dreams real.

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