Nos. 14-556, 14-562, 14-571, 14-574
`
`IN THE SUPREME COURT OF THE
`UNITED STATES
`
`JAMES OBERGEFELL, et al.,
`Petitioners
`
`v.
`
`RICHARD HODGES, et al.,
`
`Respondents.
`
`[Additional Captions on Back Cover]
`
`On Writs of Certiorari to the
`U.S. Court Of Appeals for the Sixth Circuit
`
`BRIEF OF AMICI CURIAE DR. JUDITH
`REISMAN AND LIBERTY CENTER FOR
`CHILD PROTECTION IN SUPPORT OF
`RESPONDENTS
`
`Mary E. McAlister
`LIBERTY COUNSEL
`PO Box 11108
`Lynchburg, VA 24506
`(800) 671-1776
`court@lc.org
`
`
`
`Mathew D. Staver
`(Counsel of Record)
`Anita L. Staver
`Horatio G. Mihet
`LIBERTY COUNSEL
`PO Box 540774
`Orlando, FL 327854
`(800) 671-1776
`court@lc.org
`
`
`
`
`
`
`IN THE SUPREME COURT OF THE
`UNITED STATES
`
`JAMES OBERGEFELL, et al.,
`Petitioners
`
`v.
`
`RICHARD HODGES, et al.,
`
`Respondents.
`
`[Additional Captions on Back Cover]
`
`On Writs of Certiorari to the
`U.S. Court Of Appeals for the Sixth Circuit
`
`BRIEF OF AMICI CURIAE DR. JUDITH
`REISMAN AND LIBERTY CENTER FOR
`CHILD PROTECTION IN SUPPORT OF
`RESPONDENTS
`
`Mary E. McAlister
`LIBERTY COUNSEL
`PO Box 11108
`Lynchburg, VA 24506
`(800) 671-1776
`court@lc.org
`
`
`
`Mathew D. Staver
`(Counsel of Record)
`Anita L. Staver
`Horatio G. Mihet
`LIBERTY COUNSEL
`PO Box 540774
`Orlando, FL 327854
`(800) 671-1776
`court@lc.org
`
`
`
`
`
`
`
`
`
`
`VALERIA TANCO, et al.,
`Petitioners,
`
`v.
`
`WILLIAM EDWARD “BILL” HASLAM,
`
`et al., Respondents.
`
`APRIL DEBOER, et al.,
`Petitioners,
`
`v.
`
`RICHARD SNYDER, et al.,
`
`Respondents.
`
`GREGORY BOURKE, et al.,
`Petitioners,
`
`v.
`
`STEVE BESHEAR, et al., Respondents.
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ......................... iii
`
`INTEREST OF AMICI .................................... 1
`
`INTRODUCTION ............................................ 2
`
`LEGAL ARGUMENT ...................................... 6
`
`I. MARRIAGE WAS NOT CREATED
`BY AND CANNOT BE REDEFINED BY
`LAW. ................................................................ 6
`
`II. COURTS HAVE USED LAWRENCE
`TO
`JUSTIFY
`CREATING
`AN
`ARTIFICIAL CONSTRUCT OF SAME-
`SEX “MARRIAGE.” .................................... 12
`
`III. ALFRED KINSEY’S REPORTS
`WERE
`IDEOLOGICALLY
`DRIVEN
`PROPAGANDA NOT SUPPORTED BY
`SCIENCE. .................................................... 17
`
`A. Kinsey Used Child Molesters To
`Convince The World That All Sexual
`Activity Is Normal And Acceptable. ... 20
`
`B. Kinsey’s Reports Are Neither
`Scientific Nor Objective. ...................... 34
`
`
`
`
`
`
`
`ii
`
`IV. CULTURAL CHANGE AGENTS
`IGNORED ERRORS AND EVIDENCE OF
`CHILD MOLESTATION AND CALLED
`FOR
`FUNDAMENTAL
`TRANSFORMATION BASED UPON
`KINSEY’S “WORK.” ................................... 38
`
`A. Behavioral Science Uses Kinsey
`To Steer Away From Morality. ............ 39
`
`B. Legal Experts Push For Overhaul
`Of Criminal Law Based On Kinsey. ... 42
`
`V. DISMANTLING MARRIAGE WILL
`EXACERBATE
`THE
`CULTURAL
`DAMAGE CAUSED BY KINSEYAN
`PHILOSOPHY. ........................................... 50
`
`CONCLUSION ............................................... 53
`
`
`
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`
`
`CASES
`
`Baskin v. Bogan,
`766 F.3d 648 (7th Cir. 2014) 13, 14, 15, 19, 30
`
`Bostic v. Schaefer,
`760 F.3d 352 (4th Cir. 2014) ........................ 13
`
`Buck v. Bell,
`274 U.S. 200 (1927) ....................................... 54
`
`Dred Scott v. Sandford,
`60 U.S. 393 (1856) ......................................... 54
`
`Ex parte State of Alabama ex rel. Alabama
`Policy Institute, 2015 WL 892752 (Supreme
`Court of Alabama March 3, 2015) .... 2, 6, 7, 16
`
`Gay Rights Coalition of Georgetown University
`Law Center v. Georgetown University,
`536 A.2d 1 (D.C. Ct. App. 1987) ..................... 8
`
`Goodridge v. Dep’t. of Public Health,
`440 Mass. 309 (2003) .................................... 12
`
`Hernandez-Montiel v. INS,
`225 F.3d 1084 (9th Cir. 2000) ........................ 8
`
`Johnson v. Dep’t. of Justice,
`60 Cal.4th 871 (2015). ............................. 15, 32
`
`
`
`
`
`
`
`iv
`
`Kitchen v. Herbert,
`755 F.3d 1193 (10th Cir. 2014) .................... 13
`
`Lawrence v. State,
`41 S.W.3d 349 (Tex. Ct. App. 2001 ................ 9
`
`Lawrence v. Texas,
`539 U.S. 558 (2003) ..................... 5, 8, 9, 11, 12
`
`Miller v. California,
`413 U.S. 15 (1973) ........................................... 9
`
`Murphy v. Ramsey,
`114 U.S. 15 (1885) ......................................... 16
`
`Planned Parenthood of Southeastern Pa. v.
`Casey, 505 U.S. 833 (1992) ........................... 12
`
`Roe v. Wade,
`410 U.S. 113 (1973) ......................................... 9
`
`Roth v. United States,
`354 U.S. 476 (1957) ......................................... 9
`
`State v. Next Door Cinema Corp.,
`225 Kan. 112 (1978) ........................................ 8
`
`Steffan v. Cheney,
`780 F.Supp. 1 (D.C. Dist. 1991) .................. 7-8
`
`STATUTES
`
`MODEL PENAL CODE §213.1(1)(d) (1980) ......... 49
`
`MODEL PENAL CODE §213.3(1)(a) (1980) ......... 49
`
`
`
`
`
`v
`
`MODEL PENAL CODE §§ 213.6(1),(3) (1980) ..... 49
`
`OTHER AUTHORITIES
`
`Alfred C. Kinsey, et. al.
`SEXUAL BEHAVIOR IN THE HUMAN FEMALE
`(1953) ...................................................... passim
`
`Alfred Kinsey, et. al.
`SEXUAL BEHAVIOR IN THE HUMAN MALE
`(1948) ...................................................... passim
`
`Arno Karlen,
`SEXUALITY AND HOMOSEXUALITY (1971) ...... 35
`
`Centers for Disease Control and Prevention,
`Division of STD Prevention Sexually
`Transmitted Disease Surveillance 2013
`(December 2014). .......................................... 52
`
`Committee on Forensic Psychiatry of the Group
`for the Advancement of Psychiatry,
`Psychiatrically Deviated Sex Offenders,
`Report No. 9 2 (May 1949 revised and
`republished February 1950) ................... 40, 41
`
`David Allyn,
`Private Acts/Public Policy: Alfred Kinsey, the
`American Law Institute and the Privatization
`of American Sexual Morality, 30 JOURNAL OF
`AMERICAN STUDIES, 416 (1996). . 38, 40, 42, 50
`
`Donald Porter Geddes & Enid Currie eds.
`ABOUT THE KINSEY REPORT (1948) .............. 39
`
`
`
`vi
`
`
`
`Edwin H. Sutherland,
`The Sexual Psychopath Laws, 40 J. OF
`CRIMINAL LAW AND CRIMINOLOGY 543 (1950)
`........................................................................ 39
`
`Elizabeth Garfinkle,
`Coming Of Age In America: The
`Misapplication Of Sex-Offender Registration
`And Community-Notification Laws To
`Juveniles, 91 CAL. L. REV. 163 (2003). ......... 20
`
`George Washington,
`Farewell Address 1796.................................. 53
`
`Herbert Wechsler,
`The Challenge of a Model Penal Code,
`65 HARVARD L. REV. 1097 (1952). .... 39, 48, 52
`
`Howard N. Snyder, Ph.D.,
`Sexual Assault of Young Children as
`Reported to Law Enforcement: Victim,
`Incident, and Offender Characteristics,
`National Center for Juvenile Justice, July
`2000 ............................................................... 52
`
`http://www.disastercenter.com/crime/us
`crime.htm ...................................................... 52
`
`James H. Jones,
`Annals of Sexology Dr. Yes, THE NEW
`YORKER, August 25 & September 1, 1997 ... 33
`
`
`
`
`
`vii
`
`James H. Jones,
`ALFRED C. KINSEY A PUBLIC PRIVATE LIFE,
`(1997) ............................................................. 33
`
`
`
`Jeffrey Satinover,
`The “Trojan Couch:” How the Mental Health
`Associations Misrepresent Science ............... 41
`
`John D’Emilio & Estelle B. Freedman,
`INTIMATE MATTERS: A HISTORY OF SEXUALITY
`IN AMERICA (1997) ........................................ 11
`
`Jonathan Gathorne-Hardy¸
`KINSEY SEX THE MEASURE OF ALL THINGS
`(1998) ............................................................. 23
`
`Jonathan Ned Katz,
`THE INVENTION OF HETEROSEXUALITY (1995)
`........................................................................ 11
`
`Judith A. Reisman & Edward W. Eichel,
`KINSEY, SEX AND FRAUD: THE
`INDOCTRINATION OF A PEOPLE (1990) ............ 8
`
`Judith Reisman,
`Implications of Kinsey Research on Child
`Custody Cases, EXPOSÉ: THE FAILURE OF
`FAMILY COURTS TO PROTECT CHILDREN FROM
`ABUSE IN CUSTODY DISPUTES (1999) ........... 25
`
`Judith Reisman,
`SEXUAL SABOTAGE (2010) ............................... 4
`
`
`
`
`
`viii
`
`Judith Reisman,
`Sodomy Decision Based On Fraudulent
`“Science,” HUMAN EVENTS, (August 14, 2003)
` ....................................................................... 10
`
`Judith Reisman,
`STOLEN HONOR, STOLEN INNOCENCE (2013)
`................................................................. passim
`
`Lena Lennerhed,
`The Pursuit of Pleasure: Sexliberalism in
`Sweden in the 1960’s, History of Ideas,
`Gender Studies, International Institute of
`Social History ................................................ 26
`
`Morris Ernst & David Loth,
`AMERICAN SEXUAL BEHAVIOUR AND THE
`KINSEY REPORT (1948). ........................... 17, 39
`
`Morris Ploscowe,
`SEX AND THE LAW (Ace Books revised and
`enlarged ed. 1962) ................................... 45, 47
`
`Morris Ploscowe,
`Sexual Patterns and the Law, in SEX HABITS
`OF AMERICAN MEN (Albert Deutsch, ed.,
`1948) ............................................ 18, 28, 39, 45
`
`New Biography of Alfred Kinsey Published in
`China, KINSEY TODAY ..................................... 1
`
`Paul Robinson,
`THE MODERNIZATION OF SEX (1976). ..... passim
`
`
`
`
`
`ix
`
`Paul W. Tappan,
`THE HABITUAL SEX OFFENDER: REPORT AND
`RECOMMENDATIONS OF THE COMMISSION ON
`THE HABITUAL SEX OFFENDER (1950) .......... 44
`
`Phillip Zimbardo, et. al.,
`INFLUENCING ATTITUDES AND CHANGING
`BEHAVIOR (1977) ..................................... 19, 34
`
`
`Ralph Slovenko & Cyril Phillips,
`Psychosexuality and the Criminal Law, 15
`VANDERBILT LAW REVIEW 797 (1962) .......... 47
`
`Rene Guyon,
`THE ETHICS OF SEXUAL ACTS (1948) ............... 39
`
`Rene Wormser, ed.
`FOUNDATIONS (1993) ................................. 5, 37
`
`Review,
`Really, Dr. Kinsey?, 337 THE LANCET, 547
`(1991) ............................................................... 8
`
`Richard A. Posner,
`SEX AND REASON (1992) ....................... 11, 19, 34
`
`Roger Clegg,
`Latest Statistics on Illegitimate Births,
`NATIONAL REVIEW (OCTOBER 4, 2012).......... 51
`
`Ronald Reagan,
`Preface: California Department of Justice,
`Crime Victims Handbook (1981) ..................... 48
`
`
`
`
`
`x
`
`Sheela Kennedy & Steven Ruggles,
`Breaking Up Is Hard to Count: The Rise of
`Divorce in the United States, 1980–2010, 51
`DEMOGRAPHY, 587 (April 2014) .................... 52
`
`Sherif Girgis & Ryan T. Anderson,
`WHAT IS MARRIAGE? MAN AND WOMAN: A
`DEFENSE (2012). .............................................. 7
`
`Tamara Rice Lave, Only Yesterday: The Rise
`And Fall Of Twentieth Century Sexual
`Psychopath Laws,
`69 LA. L. REV. 549 (2009) .............................. 43
`
`THE SUBCOMMITTEE ON SEX CRIMES OF THE
`ASSEMBLY INTERIM COMMITTEE ON JUDICIAL
`SYSTEM AND JUDICIAL PROCESS (Preliminary
`Report),
`H. Res. 232-1949, 43-1949 (Cal. 1949). ........ 44
`
`Vernon A. Rosario, An Interview with Judd
`Marmor, 7 J. OF GAY & LESBIAN
`PSYCHOTHERAPY 26 (2003) ........................... 39
`
`W. Allen Wallis, Statistics of the Kinsey Report,
`248 JOURNAL OF THE AMERICAN STATISTICAL
`ASSOCIATION, 463 (1949) ..................... 5, 35, 36
`
`Wardell Pomeroy, DR. KINSEY AND THE
`INSTITUTE FOR SEX RESEARCH (1972) .... 25, 35
`
`
`
`
`
`xi
`
`William N. Eskridge, Jr., DISHONORABLE
`PASSIONS: SODOMY LAWS IN AMERICA 1861-
`2003 (2008) ................................................ 9, 48
`
`
`
`
`
`
`
`INTEREST OF AMICI1
`
`Amici are the Liberty Center for Child
`Protection and Judith Reisman, Ph.D., who is
`Director of the Center. Dr. Reisman served as
`Principal Investigator for the United States
`Department of Justice Office of Juvenile
`Justice on child sexual abuse and child
`pornography, and has provided expert reports
`and testimony in cases worldwide, including
`South Africa, Australia, Jamaica and Croatia.
`She is an internationally recognized expert on
`the history, fraudulent research and societal
`effects of Dr. Alfred Kinsey, “The Man Who
`Changed the World,”2 and has authored five
`books and hundreds of articles dealing with
`
`
`1
`Counsel for a party did not author this
`Brief in whole or in part, and no such counsel
`or party made a monetary contribution to fund
`the preparation or submission of this Brief. No
`person or entity, other than Amici Curiae or
`their counsel made a monetary contribution to
`the preparation and submission of this Brief.
`The Respondents have filed blanket consents to
`the filing of Amicus Briefs on behalf of either
`party or no party. Consents from Petitioners
`are being filed simultaneously with this Brief.
`2
`New Biography
`of Alfred Kinsey
`Published in China, KINSEY TODAY, Spring
`2008, http://www.kinseyinstitute.org/newsletter
`/sp2008/zhoubook.html.
`
`
`
`
`
`2
`
`human sexuality as well as the implications of
`Kinsey’s research on law and public policy.
`Amici’s extensive information on the
`history and effects of Kinsey’s research on
`cultural values and institutions over the last 60
`years
`is monumentally
`important to this
`Court’s decision. Amici respectfully submit this
`Brief for the Court’s consideration.
`
`INTRODUCTION
`
`This Court cannot–and should not–erase
`millennia of human history and dismantle the
`granite cornerstone of society in favor of an
`experimental construct that is barely a decade
`old. This case presents the Court with the
`opportunity to affirm and preserve the unique,
`comprehensive union of a man and a woman,
`the foundational social institution upon which
`society was built and the future of the nation
`depends. See Ex parte State of Alabama ex rel.
`Alabama Policy Institute 2015 WL 892752, *5
`(Supreme Court of Alabama March 3, 2015). As
`the Alabama Supreme Court and the Sixth
`Circuit did, this Court should reject calls to
`remove society’s proven
`cornerstone and
`replace
`it with the shifting sand of an
`undefined union of people who are “committed”
`to each other based upon an “emotional bond.”
`Changing millennia of history must
`always be approached with trepidation. In this
`
`
`
`
`
`3
`
`case, the change must be rejected outright not
`only because it is seeking to redefine something
`which cannot be redefined, but also because the
`proposed change is grounded in fraudulent
`“research” based on skewed demographics and
`the sexual abuse of hundreds of infants and
`children.3 The
`“research”
`upon which
`Petitioners base their artificial construct of
`same-sex “marriage” is contained in Alfred
`Kinsey’s books on male and female sexuality,4
`
`
`3
`Alfred Kinsey, et.al. SEXUAL BEHAVIOR
`IN THE HUMAN MALE, 175-80 (1948) (“Kinsey
`MALE”
`herein). Tables
`31-34
`describe
`“observations” of “orgasms” in infants and
`children as young as two months. Table 34 is
`reproduced below:
`
`
`4
` Id.; Alfred C. Kinsey, et. al. SEXUAL
`BEHAVIOR IN THE HUMAN FEMALE, (1953)
`(“Kinsey FEMALE” herein).
`
`
`
`
`
`4
`
`which legitimized homosexual conduct and
`ushered in a societal transformation that has
`now affected three generations and every
`aspect of American life. Although represented
`to be objective scientific studies, Kinsey’s
`reports “were informed by a set of values and
`intellectual preferences that, taken together,
`could be said to constitute an ideology.”5 An
`ideology built upon the sexual abuse of infants
`and children,6 and the libeling of the “Greatest
`Generation.”7
`The release of Kinsey’s reports prompted
`clarion calls
`for
`fundamental changes
`in
`behavioral science, law, medicine and other
`social institutions. Those calling for change did
`not acknowledge, let alone try to explain, the
`records of child sexual abuse prominently
`presented and discussed in Kinsey’s books nor
`the other
`significant
`falsehoods
`in
`the
`
`
`5
`Paul Robinson, THE MODERNIZATION OF
`SEX, 49 (1976).
`6
`Kinsey MALE at 175-80, Tables 31-34.
`Those children, now adults, include Esther,
`whose
`father regularly molested her and
`recorded the acts for transmission to Kinsey,
`see Judith Reisman, STOLEN HONOR, STOLEN
`INNOCENCE, 152 (2013).
`7
`Judith Reisman, SEXUAL SABOTAGE, 1-15
`(2010).
`
`
`
`
`
`5
`
`“research.”8 Over the last 67 years, the calls for
`change have been heeded and manifested
`themselves in, inter alia, the decriminalization
`or diminution of punishment for most sexual
`offenses, no fault divorce and related changes
`in family law, removal of homosexuality as a
`mental disorder, and new protected classes
`based on sexual conduct. The fundamental
`societal transformation reached this Court in
`2003 when, relying upon Kinsey-inspired
`changes
`in
`law and policy,
`this Court
`decriminalized same-sex sodomy in Lawrence v.
`Texas, 539 U.S. 558 (2003).
`Now this Court is being asked to again
`use aberrant research created by aberrant
`researchers based on the sexual abuse of
`hundreds of children to make fundamental
`changes
`to American
`law—this
`time
`to
`demolish natural marriage. This Court should
`not permit the institution of marriage to
`become the latest victim of the Kinseyan model
`of American society.
`
`
`8
`See W. Allen Wallis, Statistics of the
`Kinsey Report, 248 JOURNAL OF THE AMERICAN
`STATISTICAL ASSOCIATION,
`463-84
`(1949)
`(discussing statistical errors in the report and
`concluding that Kinsey falsified data); Rene
`Wormser, ed. FOUNDATIONS 104 (1993) (citing
`Dr. Albert Hobbs’ congressional testimony that
`the Kinsey reports were “designed to deceive”).
`
`
`
`6
`
`
`
`
`
`LEGAL ARGUMENT
`
`I. MARRIAGE WAS NOT CREATED BY
`AND CANNOT BE REDEFINED BY
`LAW.
`
`The request to “define” or “redefine”
`marriage
`reflects
`a
`fundamental
`misunderstanding of
`the nature of
`the
`institution, a misunderstanding
`that
`is
`exacerbated by societal changes spawned by
`Kinsey’s fraudulent research. As the Alabama
`Supreme Court affirmed:
`
`“prepolitical”
`a
`is
`[M]arriage
`“natural institution” “not created
`by law,” but nonetheless recognized
`and regulated by law in every
`culture and, properly understood,
`an
`institution
`that must be
`preserved as a public institution
`based on the following rationale:
`“The family is the fundamental
`unit of society....
`[F]amilies
`...
`produce
`something
`that
`governments need but, on their
`own,
`they
`could not possibly
`produce: upright, decent people
`who make honest
`law-abiding,
`
`
`
`
`
`7
`
`And
`citizens.
`public-spirited
`the
`indispensable
`marriage
`is
`foundation of the family.”
`
`
`Ex Parte Alabama, 2015 WL 892752 at *5.
`“Thus it is for the stability and welfare of
`society, for the general good of the public, that
`a proper understanding and preservation of the
`institution of marriage is critical.” Id. at *6.
`That has been understood by human
`society for millennia, even in cultures that were
`accepting of homosexuality and pedophilia.9
`“[E]ven in cultures very favorable to homoerotic
`relationships (as in ancient Greece), something
`akin to the conjugal view [marriage as a
`comprehensive union] has prevailed−and
`nothing like same-sex marriage was even
`imagined.”10 Indeed, the concept of marriage
`being anything other than what it has always
`been was not imagined until Kinsey’s work
`became well-ensconced as an authority in
`decisions that have fundamentally changed law
`and policy related to sexual conduct.
`With a few notable exceptions, see, e.g.,
`Steffan v. Cheney, 780 F.Supp. 1, 6 n.12 (D.C.
`
`
`9
`Sherif Girgis & Ryan T. Anderson,
`WHAT IS MARRIAGE? MAN AND WOMAN: A
`DEFENSE 11 (2012).
`10
`Id.
`
`
`
`
`
`8
`
`Dist. 1991),11 Kinsey’s works have been widely
`cited by courts as authoritative evidence
`regarding sexuality.12 In addition, once the
`Kinseyan
`approach
`to
`sexuality was
`incorporated into statutory law, particularly,
`the Model Penal Code (“MPC”), see infra, the
`statutes
`became primary
`authority
`for
`
`
`11
`Citing Review, Really, Dr. Kinsey?, 337
`THE LANCET, 547 (1991) (citing Judith A.
`Reisman & Edward W. Eichel, KINSEY, SEX
`AND FRAUD: THE INDOCTRINATION OF A PEOPLE
`(1990) for the proposition that the Kinsey
`reports on male/female sexuality involved
`knowingly unethical use of unrepresentative
`populations).
`12
`See, e.g., Hernandez-Montiel v. INS,
`225 F.3d 1084, 1093 (9th Cir. 2000) (citing
`Kinsey for proposition that “sexual identity is
`inherent to one’s very identity as a person.”);
`Gay Rights Coalition of Georgetown University
`Law Center v. Georgetown University, 536 A.2d
`1, 33-34 (D.C. Ct. App. 1987) (citing Kinsey’s
`data on the prevalence of homosexuality and
`the Kinsey scale); State v. Next Door Cinema
`Corp., 225 Kan. 112 (1978) (citing Kinsey as
`authority for educational value of obscenity,
`and upholding an obscenity exemption for
`scientific,
`educational
`and
`governmental
`purposes).
`
`
`
`
`
`9
`
`Kinseyan-based changes in law,13 including
`this Court’s decriminalization of same-sex
`sodomy in Lawrence, 539 U.S. 558 (2003).
`Laws criminalizing consensual same-sex
`sodomy remained in force in 14 states when
`this Court heard Lawrence in 2003.14 The Texas
`court of appeals referenced Kinsey in its
`decision upholding Texas’ law criminalizing
`consensual same-sex sodomy.15 The Texas court
`concluded that the statute did not violate rights
`of privacy or equal protection because it did not
`discriminate
`on
`the
`basis
`of
`sexual
`orientation.16 Citing Kinsey, the court said:
`
`be
`homosexuals may
`While
`disproportionately affected by the
`
`
`13
`See e.g., Miller v. California, 413 U.S. 15,
`18 (1973); Roth v. United States, 354 U.S. 476,
`487n.20 (1957); Roe v. Wade, 410 U.S. 113, 139-
`40 (1973) (citing the MPC as representative of
`the liberalization of abortion statutes); Doe v.
`Bolton, 410 U.S. 205, Appendix B (1973);
`Kennedy v. Louisiana, 554 U.S. 407, 412 (2008);
`Lawrence, 539 U.S. at 572.
`14 William N. Eskridge, Jr., DISHONORABLE
`PASSIONS: SODOMY LAWS IN AMERICA 1861-
`2003, 388-407 (2008).
`15
`Lawrence v. State, 41 S.W.3d 349, 353
`(Tex. Ct. App. 2001), jdt. rev’d, sub nom
`Lawrence v. Texas, 539 U.S. 558 (2003).
`16
` Id.
`
`
`
`
`
`10
`
`assume
`cannot
`statute, we
`homosexual conduct is limited only
`to those possessing a homosexual
`“orientation.” Persons having a
`predominately
`heterosexual
`inclination may sometimes engage
`in homosexual conduct. Thus, the
`statute’s
`proscription
`applies,
`facially at least, without respect to
`a defendant’s sexual orientation.17
`
`In reaching the opposite conclusion, this Court
`did not cite directly to Kinsey, but relied on the
`1955 MPC and other “laws and traditions of the
`past half century” that “show an emerging
`awareness
`that
`liberty gives substantial
`protection to adult persons in deciding how to
`conduct
`their private
`lives
`in matters
`pertaining to sex.” Lawrence, 539 U.S. at 571-
`72. Those “laws and traditions of the last half
`century” included not only the MPC, but also
`legal
`scholarship
`built
`upon Kinsey’s
`fraudulent “data” derived from child sexual
`abuse.18 That scholarship included Seventh
`Circuit Chief Judge Richard Posner’s Sex and
`
`
`17
`Id.
`18 See Judith Reisman, Sodomy Decision
`Based On Fraudulent
`“Science,” HUMAN
`EVENTS,
`(August
`14,
`2003)
`http://humanevents.com/2003/08/19/sodomy-
`decision-based-on-fraudulent-science/
`
`
`
`
`
`11
`
`Reason, in which he touted Kinsey’s studies as
`“high water marks” in scientific study of sex
`without discussing the background of Kinsey’s
`“data,” discussed infra.19 Lawrence, 539 U.S. at
`576. The Court also cited researchers who
`glowingly praised Kinsey for his strong “assault
`on sexual reticence” and his call for a complete
`revision of cultural values surrounding sex “to
`match the actual practices of Americans.”20 Id.
`at 568. These “actual practices” described by
`Kinsey were actually records of sexual abuse of
`children and interviews with sex offenders,
`prisoners and pedophiles misrepresented to be
`the actions of everyday Americans, as discussed
`in detail infra. The Lawrence Court also cited
`as authority for a purported sea change in
`cultural values a book, the title of which should
`have offered a clue to its adoption of a
`homoerotic Kinsey worldview: The Invention of
`Id.21 Based upon
`Heterosexuality.
`these
`Kinseyan sources, the Court determined that
`the Due Process Clause protects consensual
`same-sex sodomy. Id. at 578. Same-sex sodomy
`
`
`19
`Richard A. Posner, SEX AND REASON, 19
`(1992).
`20
`John D’Emilio & Estelle B. Freedman,
`INTIMATE MATTERS: A HISTORY OF SEXUALITY
`IN AMERICA 16, 285-287 (1997).
`21
`Citing
`Jonathan Ned Katz, THE
`INVENTION OF HETEROSEXUALITY, 10 (1995).
`
`
`
`
`
`12
`
`was said to be an aspect of personhood
`protected by the right to privacy. Id. at 574.
`
`At the heart of liberty is the right
`to define one’s own concept of
`existence, of meaning, of
`the
`universe, and of the mystery of
`human life. Beliefs about these
`matters
`could not define
`the
`attributes of personhood were they
`formed under compulsion of the
`State.
`
`Id. (citing Planned Parenthood of Southeastern
`Pa. v. Casey, 505 U.S. 833, 851 (1992)). The
`stage was
`thus set
`for
`the attempted
`dismantling of natural marriage.
`
`II. COURTS HAVE USED LAWRENCE
`TO
`JUSTIFY
`CREATING
`AN
`ARTIFICIAL
`CONSTRUCT
`OF
`SAME-SEX “MARRIAGE.”
`
`Some courts have utilized Lawrence, 539
`U.S. 558
`(2003),
`to
`justify dismantling
`marriage. Only five months after this Court’s
`decision,
`the Supreme Judicial Court of
`Massachusetts
`relied upon Lawrence
`to
`overturn the Commonwealth’s statutes defining
`marriage as the union of one man and one
`woman. Goodridge v. Dep’t. of Public Health,
`440 Mass. 309, 312, 349
`(2003). The
`Massachusetts court erased
`the objective
`
`
`
`
`
`13
`
`structure of marriage, concluding that it was no
`longer to be defined as the union of one man
`and one woman, but must include same-sex
`couples. Id. at 349-50.
`Left unanswered was how marriage was
`to be defined once its objective structure was
`removed. That question remains unanswered
`12 years later, as reflected in the most recent
`cases declaring that man-woman marriage laws
`are unconstitutional. See, Baskin v. Bogan, 766
`F.3d 648 (7th Cir. 2014) cert denied sub nom
`Bogan v. Baskin, 135 S.Ct. 316 (U.S. Oct. 06,
`2014); Bostic v. Schaefer, 760 F.3d 352 (4th Cir.
`2014), cert denied sub nom Rainey v. Bostic, 135
`S.Ct. 286 (U.S. Oct. 06, 2014); Kitchen v.
`Herbert, 755 F.3d 1193 (10th Cir. 2014) cert
`denied sub nom Herbert v. Kitchen, 135 S.Ct.
`265 (U.S. Oct. 06, 2014).
`Some courts have adopted this Court’s
`language in Lawrence that same-sex relations
`are choices protected by the Due Process
`Clause, which is in keeping with Kinsey’s
`opinion that sexuality is fluid.22 Kitchen, 755
`F.3d at 1205; Bostic, 760 F.3d at 377. However,
`in the Seventh Circuit, Judge Posner actually
`contradicted Kinsey in an effort to place
`homosexuality in an even more privileged
`position. Baskin,
`766
`F.3d
`at
`657.
`Homosexuality is “an immutable (and probably
`
`
`22
`See Kinsey MALE, at 639 (describing
`sexuality as a continuum), discussed infra.
`
`
`
`
`
`14
`
`in-born)
`of
`sense
`the
`in
`innate,
`an
`characteristic rather than a choice,” decreed
`Posner. Id.
`
`
`Psychological
`American
`The
`Association has said that “most
`people experience little or no sense
`of
`choice about
`their
`sexual
`orientation…. The leading scientific
`theories
`of
`the
`causes
`of
`homosexuality are genetic and
`neuroendocrine theories, the latter
`being
`theories
`that
`sexual
`orientation
`is
`shaped
`by
`a
`fetus’s[sic] exposure
`to certain
`hormones.
`
`
`Id. Judge Posner revised Kinsey’s “data” and
`history when he said that same-sex couples
`must be included in marriage to ease the pain
`of a discrimination that is greater than any
`suffered by every other group in history,
`implying that enslaved African-Americans,
`exterminated Jewish people in Nazi Germany,
`women denied economic and political power
`and other persecuted minorities were not as
`mistreated as were homosexuals who had
`enjoyed all of the rights of citizenship, economic
`power and liberty.
`
`
`Because homosexuality is not a
`voluntary
`condition
`and
`
`
`
`
`
`15
`
`homosexuals are among the most
`stigmatized, misunderstood, and
`discriminated-against minorities in
`the history of the world, the
`disparagement of
`their
`sexual
`orientation, implicit in the denial of
`marriage
`rights
`to
`same-sex
`couples, is a source of continuing
`pain to the homosexual community.
`
`Id. Judge Posner further claimed that granting
`marriage rights to homosexual couples would
`help convince the opponents of same-sex
`“marriage” that “homosexual married couples
`are in essential respects…like other married
`couples.” Id. Notably, the California Supreme
`Court has not been convinced, as it has
`concluded that heterosexual
`intercourse
`is
`fundamentally different from other sexual
`conduct and therefore can be differentially
`treated in sex offender statutes. Johnson v.
`Dep’t. of Justice, 60 Cal.4th 871, 884 (2015).
`Neither should this Court be convinced to
`follow Judge Posner and adopt Kinsey’s
`ideology that “there [are] no grounds for placing
`heterosexual
`intercourse
`in a privileged
`position.”23 Instead, as did the Alabama
`Supreme Court, this Court should affirm the
`child-centric and child-protective view of
`
`
`23
`Robinson, at 59.
`
`
`
`
`
`16
`
`marriage as the union of one man and one
`woman, i.e.:
`
`“…[T]he idea of the family, as
`consisting in and springing from
`union for life of one man and one
`woman
`in the holy estate of
`matrimony; the sure foundation of
`all that is stable and noble in our
`civilization; the best guaranty of
`that reverent morality which is the
`source of all beneficent progress in
`social and political improvement.”
`
`Ex Parte Alabama, 2015 WL 892752 at *6
`(citing Murphy v. Ramsey, 114 U.S. 15, 45
`(1885)).
`
`is concerned with
`Government
`public effects, not private wishes.
`The new definition of marriage
`centers on the private concerns of
`adults, while
`the
`traditional
`definition focuses on the benefits to
`society
`from
`the
`special
`relationship that exists between a
`man and a woman, i.e., the effects
`for care of children, the control of
`passions, the division of wealth in
`society, and so on.
`
`Id. at *36. As did the Alabama Supreme Court,
`this Court should affirm its 130-year precedent,
`
`
`
`
`
`17
`
`based on millennia of human history, and
`refuse to embrace the Kinseyan-based artificial
`construct urged by Petitioners.
`
`III. ALFRED KINSEY’S REPORTS WERE
`IDEOLOGICALLY
`DRIVEN
`PROPAGANDA NOT SUPPORTED
`BY SCIENCE.
`
`The call to dismantle marriage is the
`latest manifestation of a fundamental societal
`transformation birthed in 1948, when Kinsey
`burst onto
`the
`scene proclaiming
`that
`everything Americans knew about human
`sexuality for centuries was a lie and America’s
`mothers and fathers were hypocrites.24 ACLU
`founder Morris Ernst described Kinsey’s effect:
`
`The whole of our laws and customs
`in sexual matters is based on the
`avowed desire to protect the family,
`and at the base of the family is the
`father. His behavior is revealed by
`the Kinsey Report to be quite
`different from anything the general
`public had supposed possible or
`reasonable.25
`
`
`24 Morris Ernst & David Loth, AMERICAN
`SEXUAL BEHAVIOUR AND THE KINSEY REPORT,
`81, 83 (1948).
`25
`Id.
`
`
`
`
`
`18
`
`According to the Kinsey team, 95 percent of
`American men were engaging in sexual conduct
`that was illegal under existing laws.26 This
`included 67 percent to 98 percent who had
`premarital sex; 69 percent who had at least one
`experience with a prostitute and 50 percent
`who were adulterers.27 Kinsey’s team also
`reported that up to 50 percent of farmers had
`sex with animals.28 As was true with other
`sexual experiences such as homosexuality,
`pedophilia and pederasty, Kinsey’s
`team
`decried any classification of bestiality as
`“aberrant” or “abnormal,” claiming that such
`labels are applied only because of inexperience
`and acceptance of an old-fashioned judgment
`that “abnormal” activities, including “animal
`intercourse must
`evidence
`a mental
`immorality.”29
`abnormality, as well as an
`Kinsey also claimed that 10 to 37 percent of
`men committed homosexual sodomy at some
`time in their lives and 46 percent “reacted to”
`both sexes at some point.30
`Despite the glaring contradiction between
`what Americans believed to be true in post-
`
`
`26 Morris Ploscowe, Sexual Patterns and the
`Law, in SEX HABITS OF AMERICAN MEN 126
`(Albert Deutsch, ed., 1948).
`27 Kinsey MALE,
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