Hybrid. Ruth Colker

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СКАЧАТЬ Sixth Circuit limited the definition of homosexuals to individuals who engage in same-sex conduct in order to facilitate an initiative aimed at hurting gay men, lesbians, and bisexuals. The New Hampshire Supreme Court, by contrast, narrowed the definition of homosexuals so as not to include all individuals who have engaged in same-sex conduct. An individual could thus move from Cincinnati to New Hampshire and be reclassified from a homosexual to a heterosexual. (Neither court, of course, would consider labeling an individual who had engaged in both same-sex and opposite-sex conduct as a bisexual.)

      In 1987, the state of New Hampshire passed a bill barring “homosexuals” from adopting children, being foster parents, or working in day care centers. This was its definition of “homosexual”:

      a homosexual is defined as any person who performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another person of the same gender.¹⁰

      This definition divided people into two stark categories: heterosexual or homosexual. Any act of same-sex sexual activity made a person homosexual. Presumably, most bisexuals would be labeled as homosexuals under this definition. Moreover, homosexuality was defined exclusively on the basis of sexual experience. Sexual orientation was equated with sexual experience rather than sexual desire or identity. Thus, a bisexual or homosexual who had not yet experienced sexual relations with individuals of the same sex would be labeled a heterosexual.

      Because of the blatantly coercive aspects of this bill against individuals classified as homosexuals, the New Hampshire House of Representatives was concerned about its constitutionality. Pursuant to the New Hampshire Constitution’s rules regarding advisory opinions, it sought an opinion from the New Hampshire Supreme Court concerning its constitutionality.

      The New Hampshire Supreme Court (including now-U.S. Supreme Court Justice David Souter) advised the state legislature that this bill would be constitutional in the adoption and foster care setting but not in the day-care setting. In determining the constitutionality of the bill, the court, however, was troubled by the definition of homosexuality. It stated: “This very narrow definition of homosexual behavior contains no requirement that the acts or submission thereto be uncoerced, nor does there appear to be any temporal limitation regarding when the acts are to have occurred.”¹¹ Because the court believed that the statute was too broad in defining homosexuality, it decided to assume that the homosexual acts had to be voluntary and knowing. Moreover, the court created this temporal rule:

      we interpret the definition’s present tense usage to mean that the acts bringing an individual within the definition’s ambit must be or have been committed or submitted to on a current basis reasonably close in time to the filing of an adoption. This interpretation thus excludes from the definition of homosexual those persons who, for example, had one homosexual experience during adolescents, but who now engage in exclusively heterosexual behavior.¹²

      This commentary by the state Supreme Court was an attempt to narrow the New Hampshire definition to include only individuals who were currently engaging in same-sex sexual activity. A person who engaged in same-sex sexual activity only at a young age could be excluded from the definition based on the combination of the coercion and timing exceptions. Because the event had occurred in the distant past, one did not have to consider this event to be indicative of the individual’s current identification. The fact that the event had not recurred even might be evidence that the individual was repulsed by such activity. Moreover, if the individual could allege coercion then the label “homosexual” would not apply at all. This definition had the effect of excluding bisexuals from its definition if the bisexual was currently engaged in opposite-sex sexual activity.

      After the state Supreme Court issued its advisory opinion, the state legislature enacted a statute prohibiting homosexuals to adopt or to be foster parents. (Based on the court’s legal advice, it dropped the ban on homosexuals working as day-care workers.) It used the following definition of homosexuality: “any person who knowingly and voluntarily performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another person of the same gender.” ¹³ The legislature explicitly imposed the requirement that the sexual behavior be knowing and voluntary but it did not explicitly impose a temporal requirement. It retained the present tense usage but left open the question of how recently one would have had to engage in a homosexual act to be deemed a homosexual. Would the act have had to occur in the previous day, the previous week, the previous year, or the previous decade? These interpretations are awkward because they require a past-tense interpretation of the statute. Certainly, the legislature did not mean to require that the person engage in a homosexual sexual act while being interviewed about his or her suitability as a parent! Nonetheless, it did construct a conduct-based definition of homosexuality.

      Although the legislature was alerted to the ambiguity with respect to timing, it did nothing to solve the problem.¹⁴ It continued to believe that it could neatly divide the world into the homosexual and heterosexual to achieve its purpose. Although the legislature was subtly alerted to the fact that bisexuals exist, it chose to continue to ignore their existence. Therefore, it is hard to know whether it intended to exclude bisexuals, who were currently sexually involved with individuals of the opposite sex, from its definition.

      In sum, the state of New Hampshire initially created a legal disability for homosexuals without considering how hard it might be to define the “homosexual.” When confronted with definitional difficulties by a state Supreme Court that seemed to recognize the ambiguity that was created for some bisexuals, the legislature did not budge much. It maintained bisexual invisibility in the face of criticism by the state Supreme Court.

      In the state of New Hampshire, therefore, the “homosexual” who was excluded from being an adoptive parent was the individual who had engaged in same-sex sexual activity and would not express regret concerning those experiences by claiming that they were coercive. The state of New Hampshire did not intend to exclude all individuals who had same-sex sexual experiences from being adoptive or foster parents. It only intended to exclude those individuals who felt positively about their same-sex sexual experiences. A closeted, self-deprecating homosexual or a bisexual who was currently engaging in opposite-sex sexual activity and was willing to disavow same-sex sexual experiences was considered to be a more appropriate parent than an open, proud homosexual or bisexual who was engaging in same-sex sexual activity.

      Oddly, however, the state does not even appear to have considered another category of homosexual or bisexual—an individual who is open about his or her identity but is not currently engaged in same-sex sexual conduct. For example, both an open bisexual who is married to a person of the opposite sex and an open homosexual who is currently not in a sexual relationship would seem to qualify as adoptive parents under the state’s definition. One would not expect that the state of New Hampshire wants open homosexuals or bisexuals to adopt children since they might inculcate gay-positive values to their children. The failure to mention such individuals reflects the state’s stereotypes and ignorance. Like the Sixth Circuit, it does not believe such people exist because they have the “option” of being closeted. The federal government, however, has become well aware of such individuals as it has tried to write policies to govern the military.

       C. Federal Government: Keeping Homosexuals out of the Military and in the Closet

      Like the State of New Hampshire, the federal government has distinguished between conduct and status so as not to sweep too broadly in limiting the rights of gay, lesbian, and bisexual people in the military.¹⁵ While the state of New Hampshire’s definitional story is relatively straightforward, the military’s is far from simple. The military has had a long-standing problem trying to define “homosexual” and has adjusted its definition many times in order to better achieve its intended social policies as well as to avoid constitutional difficulties. Its definition-making has been so unsuccessful and problematic that СКАЧАТЬ