Windy City Media Group Frontpage News
Celebrating 30 Years of Gay Lesbian Bisexual and Trans News
home search facebook twitter join
Gay News Sponsor Windy City Times 2015-09-02
DOWNLOAD ISSUE
About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage

Sponsor

  WINDY CITY TIMES

Petraeus scandal conjures recent LGBT legal skirmishes
by Lisa Keen, Keen News Service
2012-11-21

facebook twitter pin it del.icio.us stumble upon digg google +1 reddit email


Who could imagine the resignation of Gen. David Petraeus over a sexual relationship with a woman other than his wife could have implications for same-sex marriage?

Columbia Law School Professor Katherine Franke, writing in the school's Gender & Sexuality Law Blog Nov. 10, saw right away the parallel between Petraeus' resignation and the experience of many gay and lesbian civil servants in the past.

"Gay men and lesbians were vulnerable to this kind of take down from public service until recently on the theory that illegal and shameful behavior such as being gay or having an extra marital affair could render you susceptible to blackmail, thus jeopardizing national security," wrote Franke.

A week later, John Prados, a senior fellow at the National Security Archive, pointed it out in a Washington Post piece. Until 1998, when President Bill Clinton issued an executive order to stop the practice, he said, CIA intelligence officers "found to be gay" automatically "lost their clearances or even their jobs."

"The ostensible concern about the Petraeus affair was the potential for blackmail," wrote Prados. "Yet it is far-fetched today to think that a foreign government would contrive an operation to ensnare a CIA employee through an affair, a foreign-spy spouse or an allegation of homosexuality. Our enemies are unlikely to bother with such complicated schemes. Instead, they buy information—the method that has remained tried and true—or attempt to hack it from the data-rich computer networks that the government is spending billions to defend."

It was a computer issue that fingered Petraeus. An investigation by the Federal Bureau of Investigation, aimed at determining whether the CIA director's computer security had been breached, uncovered emails indicating he was having an extramarital affair. The FBI had also found classified documents on the computer of Petraeus' mistress, Paula Broadwell.

Petraeus submitted his resignation to the president Nov. 8. In a separate letter to his colleagues, Petraeus cited "personal reasons," but was candid.

"After being married for over 37 years, I showed extremely poor judgment by engaging in an extramarital affair," said the letter. "Such behavior is unacceptable, both as a husband and as the leader of an organization such as ours. This afternoon, the President graciously accepted my resignation."

During a press conference Nov. 14, President Obama said that he has seen "no evidence at this point" indicating the Petraeus affair compromised classified information or threatened national security. An investigation is ongoing and has cast suspicion of adultery on the current commander of U.S. forces in Afghanistan, Gen. John Allen. It may imperil Allen's appointment to become NATO's Supreme Allied Commander.

The high-profile scandalous nature of the news surrounding two of the country's best known and most popular military figures has prompted many essays and talk show discussions about adultery and its significance in national security matters and the military specifically, and in society generally.

Less than a week after Petraeus resigned, the New York Times and its sister paper the Boston Globe ran a story about laws against adultery. Times' national legal affairs correspondent Ethan Bronner pointed out that, in Virginia, where Petraeus lives, and in 22 other states, adultery is "a criminal act." Those states include New York, Illinois, Florida, Georgia, Arizona, Massachusetts and Michigan, but not California, Ohio or Texas.

In most of the 23 states where adultery is still a crime, it's a misdemeanor, reported Bronner. But in Massachusetts, Michigan, Wisconsin, Idaho and Oklahoma, it's a felony. Moreover, it's rarely enforced or punished.

The discussions were reminiscent of talk about laws concerning same-sex sexual relations many years ago—half the states had laws against it on the books, most were misdemeanors, but a few were felonies. They were rarely enforced or punished. A key difference, however, is that laws banning same-sex sexual relations (so-called sodomy laws) were frequently cited to prevent gays from various jobs, including the military. It may interest LGBT readers to know that Petraeus, during the repeal of "Don't Ask, Don't Tell," said he had no issues working with military colleagues he knew to be gay.

As Bronner noted, "Most states have purged their codes of laws regulating cohabitation, homosexual sodomy and fornication—sex between unmarried adults—especially after the 2003 Supreme Court decision in Lawrence v. Texas…."

That decision, he noted, struck down laws prohibiting consensual sexual activity in private between unmarried adults.

"But the question of how that ruling affects adultery," he wrote, "remains unanswered because others may be harmed by adultery—a spouse and children."

One expert Bronner consulted, a law professor at the University of California-Berkeley, said she thinks "it is an open question whether adultery continues to be as viable as criminal law even though it remains on the books" because "most courts in light of Lawrence are going to give adultery a wide berth."

One could almost hear U.S. Supreme Court Justice Antonin Scalia calling out, "I told you so."

In his scathing dissent against the Lawrence decision, Scalia warned that "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices." Bowers v. Hardwick was the 1986 Supreme Court decision that upheld laws against same-sex partners having sex.

"Every single one of these laws is called into question" by the majority ruling in Lawrence, said Scalia.

Famed Harvard law professor Laurence Tribe argued against sodomy laws in the Hardwick case and wrote a pivotal brief in support of overturning Lawrence. He agrees that "Most courts after Lawrence would, indeed, give adultery a wide berth, but when it amounts to cheating on one's spouse and endangering others, rather than just violating an antiquated moral code, it raises issues that Lawrence v. Texas didn't address or even contemplate, so I wouldn't be too quick to assume that the law has evolved to the point where infidelity—especially by someone against whom it might be used as a source of blackmail—is no longer a source of constitutionally legitimate public concern."

"Certainly the far-fetched, but entirely predictable, argument that Lawrence put the country on a slippery slope that might endanger legitimate interests unrelated to purely moralistic intrusion into the consensual choices of responsible adults can draw no support from whatever berth adultery might have gained from the Court's Lawrence decision."

LGBT law expert Nancy Polikoff at American University's Washington College of Law, pointed to a paragraph in the majority decision of Lawrence that made clear it was directed at "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle [emphasis added]."

But, added Polikoff, the decision "does protect private, adult, consensual sex … so it's arguable that adultery is protected."

William Eskridge Jr., a professor at Yale Law School and author of Dishonorable Passions: Sodomy Laws in America, 1861-2003, said he doesn't think state laws that criminalize adultery would be much weakened by Lawrence when it comes to "state penalties that are designed to protect the innocent spouse."

And Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, said he doesn't think Lawrence weakened laws against adultery much either.

"Pre-Lawrence, the Massachusetts Supreme Judicial Court upheld our state adultery law against a constitutional challenge. I wouldn't bet on Lawrence changing that result although I am sure arguments could be made that it should."

"Most courts," said Buseck, "have read Lawrence really quite narrowly and disappointingly even to questions where it seems wholly relevant."

Interestingly, this glance at laws against adultery comes at a time Scalia and other Supreme Court justices are discussing privately among themselves whether to take up one or more cases related to the legal right of same-sex couples to be married and enjoy the benefits of marriage. Presumably, Scalia will re-read his Lawrence dissent snap that, "If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'?" Laws against same-sex marriage, he said, with Justice Clarence Thomas signed on, were sustainable "only in light of Bowers' validation of laws based on moral choices."

"What a moment this is," noted Katherine Franke in her comment regarding the Petraeus affair, "that on the heels of having won enormous victories in electing openly gay candidates such as Tammy Baldwin and securing marriage rights for same-sex couples in four more states, marriage remains an institution whose mores, morals, and social standing can bring down someone as powerful as David Petraeus when he violates them. It seems that we live in a time when it's safer to be gay than to be an adulterer."

©2012 by Keen News Service. All rights reserved.


facebook twitter pin it del.icio.us stumble upon digg google +1 reddit email




Windy City Media Group does not approve or necessarily agree with the views posted below.
Please do not post letters to the editor here. Please also be civil in your dialogue.
If you need to be mean, just know that the longer you stay on this page, the more you help us.


  ARTICLES YOU MIGHT LIKE

Saturday Boystown action for decriminalization of sex work in Rentboy raid aftermath 2015-09-03
PASSAGES Chicago athlete, philanthropist Dick Uyvari dies 2015-09-02
Historic UN Security Council briefing focuses on LGBTQ refugees 2015-09-02
Upcoming events in politics, parties, health, art, music 2015-09-01
World news: UN briefing; Turing letters; African activist 2015-09-01
National: Ashley Madison and Grindr; RentBoy; Facebook apology 2015-09-01
Pride at Work takes aim at HRC and Equality Index 2015-09-01
Supreme Court denies KY County Clerk's request to refuse marriage licenses 2015-08-31
Equality Illinois announces statewide expansion 2015-08-30
Equality Illinois announces statewide expansion 2015-08-29
Chicago momentum building for 2016 Creating Change 2015-08-28
Chicago panel calls for awareness, action for murdered Black trans women 2015-08-27
Virginia shooter gay, manifesto says 2015-08-26
Transgender murders in Aurora, IL and Kansas City, MO 2015-08-26
Homeland Security raids Rentboy.com offices in New York 2015-08-26
Cook County Dems slate 2016 candidates 2015-08-26
THEATER REVIEW Chicago's Role in the Crime of the Century 2015-08-26
35th Ward Alderman Carlos Ramirez-Rosa marks 100 days in office 2015-08-25
National: Hillary; Texas hate crime; Trump; 18th trans murder 2015-08-25
World: Murder suspect charged; fashion figure fired; Montreal parade 2015-08-25
LGBT groups join Amnesty International in call to decriminalize sex work 2015-08-25
A Wider Bridge opens Chicago office 2015-08-24
UN briefed on LGBT persecution, killings in Iraq and Syria 2015-08-24
GOP candidates duck on the Equality Act 2015-08-24
Pro-marriage equality state Rep. Sullivan won't seek re-election 2015-08-24
Ramirez-Rosa opens at Sanders rally 2015-08-22
Cuban LGBT activist to tour Chicago 2015-08-22
Ellen Page challenges Ted Cruz on LGBT discrimination at Iowa State Fair 2015-08-21
UN brief to include ISIS terror against LGBTIs 2015-08-21
Rauner signs anti-conversion therapy bill 2015-08-20
LGBTQs in LA protest homicides targeting transgender people 2015-08-18
National roundup: Ohio ruling; trans candidate; Missouri murder 2015-08-18
World news: Abbott's anti-gay move; Kenyan couple; Blanco's appearance 2015-08-18
Call it Out: RNC quietly passes anti-LGBT resolution 2015-08-18
NCAVP mourns deaths across the nation 2015-08-18
NCTE policy advisor is first openly trans White House official 2015-08-18
Tidwell missing after several days 2015-08-17
Meister prepares for Court Clerk bid 2015-08-17
PASSAGES Civil-rights icon Julian Bond dies 2015-08-16
13th trans woman murdered in U.S. 2015-08-12
 



Copyright © 2015 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.

 

 

 

TRENDINGBREAKINGPHOTOS

Sponsor
Sponsor
Sponsor
Sponsor
Sponsor


 



Sponsor

About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage



About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Subscriptions      Distribution      Windy City Queercast     
Queercast Archives      Advertising  Rates      Deadlines      Advanced Search     
Press  Releases      Event Photos      Join WCMG  Email List      Email Blast     
Upcoming Events      Todays Events      Ongoing Events      Post an Event      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Blogs      Spotlight  Video     
Classifieds      Real Estate      Place a  Classified     

Windy City Media Group produces Windy City Queercast, & publishes Windy City Times,
The Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community,
Nightspots, Out! Resource Guide, and Identity.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.