Wednesday, May 27, 2009

In defense of the prop 8 ruling, but not defending prop 8

Realizing that this issue diverges somewhat from my usual topics, realizing that my title will shock many readers and possibly incense others, it, nevertheless, is an issue I feel compelled to address. The California Supreme Court's recent ruling has been huge news in the queer community: many have been outraged at the decision, many feel betrayed by a court that only a year ago ruled same-sex marriage a constitutional right in a 4-3 decision but now supports proposition 8 by a vote of 6-1, and many feel abandoned by a court willing to uphold a constitutional amendment that makes many in California second class citizens.

And here I am, a queer identified person, yet still something of an outsider, having never had to feel the full brunt of homophobia, arguing in defense of the court's ruling. I do this apprehensively, but I do it because I feel that much of the outrage, much of the sense of betrayal, much of the sense of being abandoned by the court largely stems from massive public ignorance about the institution of the courts and ignorance of the legal principles involved in the court's ruling.

Ultimately, the issue I want to address seems to be an ignorance of the difference between courts and legislatures. It has been said many times--and still it is worth repeating--that the courts don't make the law, they interpret the law. The vast majority of cases before courts are not about issues of the constitutionality of some provision but are a matter of how and whether to apply some statue to the specifics of real life situations. But in some cases--including many high-profile cases--the issue is a matter of law conflicting with law. If one law conflicts with a higher law (i.e. the Constitution or a treaty, though usually the former), the subordinate law can be made void. In such cases, the question generally becomes whether a laws violates the Constitution (federal for federal laws, or federal or state for state laws.) The role of the courts is not to decide if some law is a good law, if some statue is a wise statue, or if some executive decision is a prudent decision. Questions of prudence and wisdom are left to legislatures, to members of the executive branch, and to the people. If you think some law is a bad law, there are constitutional provision for remedying this: fight the law, try to get it repealed by the legislature, vote people out of office. The role of the courts is the much narrower: they decide on the basis technical legal questions. The California Supreme Court emphasized very early in their decision the role of the Court:
Our task in the present proceeding is not to determine whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution. Regardless of our views as individuals on this question of policy, we recognize as judges and as a court our responsibility to confine our consideration to a determination of the constitutional validity and legal effect of the measure in question. It bears emphasis in this regard that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values. (p.3)


The court's opinion, concurring opinions, and a dissent are available online. It's a long document (about 185 pages); I've read about 120 pages of it, and skimmed much of the rest. (For the key parts, pp.1-13 summarize the majority opinion, and pp.43-109 cover the primary legal question involved. pp. 151-175 is Justice Moreno's concurring opinion and dissent.)

To start with, a very brief recounting of the facts: Last year the California Supreme Court ruled unconstitutional a statue that limited marriage to opposite-sex couples; it declared it unconstitutional on the basis of the California Constitution's right to privacy (article 1, section 1), due process clause (article 1, section 7), and equal protection clause (article 1, section 7). (Following the court, I'll call these the Marriage Cases.) In the state of California, it is much easier to pass a constitutional amendment than in most places. There is a provision allowing for initiative measures to be passed, bypassing the legislature.
An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election. (Article 2, section 8, b)
Using this, a constitutional amendment was passed with wording identical the section of the law overturned in the Marriage Cases. This amendment was proposition 8.

The key issue in this case has to do with a distinction made in California law between a constitutional amendment and a constitutional revision. The initiative measure only permits constitutional amendments, but not constitutional revisions. Consequently, if prop 8 constituted a constitutional revision, it would be unconstitutional. Before going further into the legal questions, I want to explain my main reason for supporting the court's decision: I believe that if the court would have overturned prop 8, it would have been a serious affront to the entire constitutional order.

I know that this sounds drastic, perhaps extreme, yet a fundamental part of our constitutional democracy is separation of powers and having in place a system of checks and balances. No branch of government has absolute power, and no branch of government has powers not subject to review, either by another branch or by the electorate. However, the decisions of supreme courts, in most places, are among the governmental decisions most insulated from review. This is appropriate given the role of the courts as arbiters of the law, not creators of it (despite what some conservatives might say about judges "legislating from the bench.") If a court makes an unpopular decision, there are a few possible recourses. One is to remove or replace justices--the extent to which this applies depends on the court. The US Supreme Court gives life tenure, and the power to impeach justices has only been used once. (Samuel Chase in 1804, but he wasn't removed from office.) That proved such a disaster, it has served as a warning ever since not to be repeated. In state courts, the laws vary and it is often easier to remove justices. In California, justices are up for review every 12 years, and it is possible to recall them (I found a state senator's site saying that judges have never been recalled but some have failed to pass the 12 year review.)

However, the primary recourse available is to overturn a controversial court decision via constitutional amendment. This is precisely what happened in this case--in large part because it's a lot easier to amend the California Constitution than the US Constitution or even most state constitutions. For the court to make a ruling, have that ruling overturned by a constitutional amendment, and then to overturn that amendment would have amounted to them up and nullifying the primary check on their power that exists. I would find that a very troubling situation no matter how much I may personally agree with the result in that particular case. I think this is one of the primary reasons why the decision to legalize same-sex marriage was 4-3, but the decision to uphold prop 8 was 6-1. It wasn't at all a reversal of their opinions, but deciding on a quite different legal matter.

Back to the case. There were three main legal questions involved.
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? [citation] (2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution? (3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8? (footnote 4, p. 23)
The last two were fairly easy questions. For the third, the answer is a resounding "no effect; those marriage remain valid." Nothing in the text of prop 8 indicated that it functioned retroactively. Therefore it didn't function retroactively. Therefore those marriages remain valid. For the second question, this challenge to prop 8 doesn't really even make sense. The argument seemed to be that to use a constitutional amendment to overturn a court decision amounts to "rejudicating" the court's power. But using a constitutional amendment to overturn court decisions is well-grounded in precedent having been done a number of times.

All this leaves the main question of whether this constitutes an "amendment" or a "revision". Pages 46-84 give an extensive history of the topic, discussion of the case-law, and application to this case. I'll try to summarize it here.

In the 1849 version of California's constitution, after explaining the process for creating amendments, it explains revisions, a concept borrowed from other state constitutions:
And if, at any time two-thirds of the Senate and Assembly shall think it necessary to revise and change this entire Constitution, they shall recommend to the electors, at the next election for members of the Legislature, to vote for or against the convention (p.48)
Constitutional revisions were massive overhauls that required a constitutional convention. (The language of "entire constitution" is no longer present.) In 1878-9, there was a constitutional convention to revise the constitution. The first case in which an amendment was challenged on the claim that it was a revision rather than an amendment was in 1894. An amendment had been proposed to move the state capital. The court rejected the argument that this was a revision, and affirmed that it was a valid amendment.

In 1911, the initiative power was added to the state constitution. Following this, the next important case, and one of only two times the Court was rejected a proposition on the basis it was a revision rather than an amendment, was in 1948 when an initiative was rejected for being a revision. The "ham and eggs" initiative--given that name because of the vast array of topics it addressed--had 12 section, 208 subsections, and constituted more than 21,000 words. At that time, the entirely of the California Constitution was about 55,000 words. (In response to this, an amendment was passed saying that amendments could only be about a single subject.)

In 1956, an advisory committee was formed to address the question of how to accomplish constitutional revisions without a constitutional convention. The result of that committee's study (of other states' processes) was a constitutional amendment that permits the legislature to submit to the electorate both amendments and revisions. The Legislative Counsel's description was as follows:
Under existing provisions the Legislature can only propose ‘amendments,’ that is measures which propose changes specific and limited in nature. ‘Revisions,’ i.e., proposals which involve broad changes in all or a substantial part of the Constitution, can presently be proposed only by convening a constitutional convention. (p.63)
. An amendment making this changed was approved by the voters in 1962.

Since then, there have been eight cases (including the one against prop 8) brought before the Court claiming that some proposition was unconstitutional because it amounted to a revision rather than an amendment. In only one of these was anything declared unconstitutional because it amounted to a revision rather than an amendment, and in that case only part of a proposition was overturned. The first case (1978) dealt with an amendment making very substantial changes to how taxation was done. The court ruled it was an amendment, not a revision. The second dealt with the death penalty. In 1972, the California Supreme Court ruled that the death penalty was unconstitutional because it violated the state constitution's "cruel and unusual punishment" clause. An amendment was passed voiding that decision by saying that all death penalty laws before the 1972 decision became valid again and that the "cruel and unusual punishment" clause does not prohibit the death penalty. (Note that like the prop 8 case, this was an amendment passed with the sole purpose of overturning a decision of the California Supreme Court). The Court ruled that this was an amendment, not a revision. In 1982, there was a case regarding an amendment changing a number of provisions regarding criminal justice and criminal proceedings, reversing multiple decisions of the Court. They rejected an argument that this violated the single-subject rule, and they rejected a claim that it was a revision. (Incidentally, this also involved a proposition 8.)
Accordingly, finding that “nothing contained in [the 1982] Proposition 8 necessarily or inevitably will alter the basic governmental framework set forth in our Constitution” [citation], the court in Brosnahan concluded that the measure constituted an amendment to, and not a revision of, the California Constitution.
In a 1985 case regarding the same amendment--only this time focusing on it's effect on the state's exclusionary rule--they found roughly the same thing. It was an amendment, not a revision. The next case addressing the amendment/revision dichotomy was the only one in which something other than the "ham and egss" initiative was declared a revision and thus void. That case (Raven v. Deukmejian) dealt with proposition 115 from 1990. Like the 1982 Proposition 8, it dealt with rights of criminals and rights of the accused. The preamble summarizes that law:
“we the people . . . find that it is necessary to reform the law as developed in numerous California Supreme Court decisions and as set forth in the statutes of this state. These decisions and statutes have unnecessarily expanded the rights of accused criminals far beyond that which is required by the United States Constitution, thereby unnecessarily adding to the costs of criminal cases, and diverting the judicial process from its function as a quest for truth. (p. 75)
The amendment did a number of things. The one part that was rejected on the grounds it constituted a revision
amended article I, section 24 of the California Constitution to provide that numerous state constitutional provisions granting rights to criminal defendants shall not be construed to afford greater rights than those afforded by analogous provisions of the United States Constitution (p. 75)
. An issue that I haven't addressed so far is that in the third case mentioned--based on the court's reading of the first two cases--they developed a two prong test for establishing if something is a revision. One is quantitative (how much does it change) and the other is qualitative (how profound and far reaching is a change.) A proposition can be regarded as a revision on either of these. The court decided that the section under review was not a revision under the quantitative prong. However, they decided that it was a revision under the qualitative prong. The example (given in the Ham and Eggs case) is that if all judicial power were given to the legislature, that would be so profound a change as to constitute a constitutional revision (this is just a hypothetical). The court found that under such a test, the one section of proposition 115 was a revision.
Proposition 115 contemplates a similar qualitative change. In essence and practical effect, new article I, section 24, would vest all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court. From a qualitative standpoint, the effect of Proposition 115 is devastating. (p. 79)
Moreover, it would, they held, cause the California constitution, as regards criminal matters, have no independent effect. State constitutions frequently have provisions highly similar to ones in the US Constitution; this does not make those provisions redundant. Rather, they are subject to independent interpretation, giving the states the power to interpret those rights more broadly, granting greater liberties to its citizens than is mandated by the US Constitution.

In 1991, a challenge arose that an amendment should be nullified because it was really a revision. The purpose of this amendment was to "(1) adopt term limits, (2) restrict retirement benefits for state legislators, and (3) limit expenditures for legislative staff and support services." (p. 81) The California Supreme Court rejected this argument, holding that that proposition was an amendment, not a revision. The last case covered dealing the revision/amendment issue was a case regarding a amendment enabling public agencies to make contracts for engineering and architectural purposes, whereas previously, that power had been held only by the Legislature. The court held that since this power had not been transferred from the Legislature to the Executive branch, but had been given to the Executive branch while still retained by the Legislative branch, it was an amendment not a revision.

In summary, the Court held, the case law again and again decides whether something is an amendment or a revision of the California Constitution depends on whether it is a fundamental restructuring of the California government. Under this reading of the case law, the answer to the first question before the court is quite clear. Proposition 8 is a constitutional amendment, not a constitutional revision. Given that they other arguments that prop 8 was unconstitutional were also found to have no merit, prop 8 holds as valid law.

To a large measure, I feel compelled to agree with a point of little constitutional importance that, ultimately, seems to be at the heart of this matter:
In a sense, petitioners’ and the Attorney General’s complaint is that it is just too easy to amend the California Constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it.


Given the legal issues, as I understand them from the majority's opinion and Justice's Moreno's dissent, I feel that the court made the correct decision in this case. It was a slight majority of voters last November who made the wrong decision. And given the relative rapidity of changing opinions of same-sex marriage, and given the increasing number of states with same-sex marriage, I fully expect Proposition 8 to be overturned by the electorate in the next few years.

Sunday, May 24, 2009

Challenging HSDD

In addressing the questions of whether, why, and how the asexual community should challenge classification of sexual disinterest as a disorder, I think the most basic question is what concern it is of ours. Aren't a lot of sexual people distressed about not being interested in sex? So, isn't it important for them to have access to treatment for that? And doesn't having a diagnosis for sexual disinterest help with that? I think these are valid questions. A 2005 article in Medscape helps address them. The context is the New View of women's sexual dysfunctions and the FDA's decision not to approve Intrinsa, a testosterone patch supposed to increase sexual desire in women who had had both ovaries surgically removed. The title of the article speaks for itself.

Is Lack of Sexual Desire a Disease? Is Testosterone the Cure?

(For some reason, linking to it will ask you for a subscription, but you can read it by googling the title.)
Within my own clinical practice, my patients express a variety of reactions to decreased sexual desire. Some patients...seem bothered by lack of sexual desire and seek treatment from me. Others note their lack of desire with indifference. Or, their concern is not for themselves but for their partners, and the impact their decreased desire has on them. There are those who see lack of sexual desire as a welcome liberation. This is not just true of women. Men have also commented to me on the advantages of lessened sexual desire. One noted: "If I'd had this problem when I was younger, I would have been so much more productive."
He suggests that this diversity in response is the reason that the DSM-IV, the ICD-10 and the American Foundation for Urologic Disease all have some sort of requirement that the person be distressed about lack of sexual desire for it to constitute a diagnosis. (The actual history of the distress criteria are more convoluted than this. When ISD was first included in DSM-III in 1980, there was no distress criterion, quite intentionally, as we will find out later in this series. The distress requirement wasn't included until DSM-IV was published in 1994.)

After discussing some of the controversies surrounding this diagnosis, he raises the role of the pharmaceutical industry.
Roy Moynihan, writing in the British Medical Journal over the past several years, has chronicled how Procter & Gamble (and investigators closely associated with the company) have promoted female sexual dysfunction and Intrinsa to the medical and lay communities.[4] To quote Moynihan:

[Procter & Gamble] sponsored key scientific meetings in sexual medicine, hired leading sex researchers as consultants, funded continuing medical education activities, produced a reporter's guide to testosterone, and created a publicly accessible website. It has worked with agents from three public relations companies and at least one major advertising firm to promote awareness of both the "disease" and the drug.

Even if there are patients who experience distress over lack of sexual desire (as it seems to me there are), will not the very existence of a highly promoted pink-pill–equivalent to the "little blue pill" create its own market? Will not a massive "health education campaign" actually change expectations and create a "dis-ease" in women who would otherwise not experience distress?
This is, perhaps, the main reason I think we should oppose HSDD: the function of the diagnosis to create distress. Communicating to people that not being interested in sex, giving absurdly high figures for the prevalence of this "dysfunction" in the general population, and giving long lists of so-called causes seems to function to create distress where otherwise there wouldn't be any.

In the asexual community, probably the two main ways of working out a solution in sexual/asexual relationships are compromises regarding about sex regarding "How much?" and "What kind?" Anderson concludes the article by nothing how a previous article on the New View suggests referring patients with low sexual desire to The Complete Idiot's Guide to Sensual Massage.
It's probably available at the local library, can't be associated with too many adverse outcomes, and sounds a good deal more inviting than a testosterone patch.
Perhaps asexuals successfully dealing with desire discrepancies isn't all that different from anyone else having to address the same problem?

Sunday, May 17, 2009

Is asexuality a sexual dysfunction?

In the asexual community, we are sometimes asked about how asexuality is different from Hypoactive Sexual Desire Disorder or whether asexuality isn't "just" Hypoactive Sexual Desire Disorder. To date, the primary strategy--at least in media articles and university lectures--has been to distance ourselves from the diagnosis. We assert that the DSM-IV-TR says that lack of interest in sex is only a disorder if it causes the person distress: since asexuals aren't distressed about their asexuality, asexuality is not a disorder. We may concede that many sexual people are distressed about loss of sexual desire and choose not to challenge the pathologization of other people's lack of sexual desire. Our sexual disinterest is not a disorder, and whether or not their is is no concern of ours.

In approaching the relationship between asexuality and HSDD--and the relationship between asexuality and "sexual dysfunction" more generally--there are two main approaches for advocating the normalization of asexuality: distancing asexuality from "sexual dysfunction" and challenging the classification of sexual disinterest as being somehow dysfunctional.

I feel that both have their place. The former is easier, is likely to produce faster results, and requires less of a challenge to the current conceptualization of sexual problems. Ultimately, I feel that the latter is the direction asexual politics should head. It is the direction that a number of sex therapists are already headed for rather different reasons. (See, for example, the New View Campaign)

This is a topic that I have a lot of thoughts on, but it will be a challenge for me to organize them in a way I feel comfortable presenting. Over the course of the summer, I hope to be able to write about some of them.

Monday, May 4, 2009

I'm Published!!!

Hinderliter, A.C. (in press) Methodological Issues for Studying Asexuality. Archives of Sexual Behavior. DOI 10.1007/s10508-009-9502-x

I had to slash this thing down from about 4500 words to just over 2000, but I managed and now it's a letter to the editor in a major sexuality journal. It should make a...colorful...addition to my CV.

And any pretensions of blogging anonymously have just gone out the window.

Saturday, May 2, 2009

Growing bibliography about asexuality

For a while, I've been trying to compile the most comprehensive bibliography of academic materials on or relating to asexuality. The first version was a blog post, and this has been incorporated and expanded into the page Existing Research.

There are some new additions people may be interested in.

Most significantly, a new paper on asexuality has been published online before the journal is printed.

Brotto, L. A., Knudson, G., Inskip, J., Rhodes, K., & Erskine, Y. (in press). Asexuality: A mixed methods approach. Archives of Sexual Behavior.

Also, I found that something like the 2-dimensional model of sexual orientation that was proposed by Michael Storms in 1978 was proposed independently the previous year, though it does not mention asexuality.

Shively, Michael G. and De Cecco, John P.(1977)'Components of Sexual Identity',Journal of Homosexuality,3(1) 41-48

Because of this, I have rewritten and renamed the section containing Storms' works to "Modeling sexual orientation to include asexuality."

Also, I found a dissertation attempting to use such a model, making it one of only two studies I know of to use such a model for sexual orientation and gives data on a group identified as "asexuals."

Conner, Karen Lynn (1996). Covariation of sexual orientation and sexual desire. Ph.D. dissertation, University of Florida, United States

I've also added a section on books I expect to have particular relevance to studying asexuality.

Abstracts and/or commentary on each of this is included in the bibliography.