Document Type

Article

Publication Title

Northwestern University Law Review Colloquy

Publication Date

2009

Abstract

In When Obscenity Discriminates, I argued that the First Amendment's obscenity doctrine has generated discriminatory collateral effects against gays and lesbians, and that those collateral effects generate a need to refine the obscenity doctrine in light of the Supreme Court's decision in Lawrence v. Texas. In his response, If Obscenity Were to Discriminate, Professor Barry McDonald agrees with my essay's "core insight--that the Miller obscenity test should be applied in a manner that is neutral as to the sexual orientation of the pertinent actors," and notes that this insight "appears to have substantial support in basic principles of the Court's equal protection and First Amendment jurisprudence." McDonald builds from that "core insight" by "taking the liberty of recasting these arguments as more modest claims that the obscenity doctrine needs to be modified in light of Lawrence in order to achieve a principled and coherent constitutional jurisprudence as it relates to the Court's treatment of gay sex." However, the "more modest claim" that McDonald purports to make is, in fact, the claim made in my essay, namely, to "refine--but not overturn--the obscenity test set forth in Miller" so that it distinguishes between sex and sexual orientation.

Thus, despite Professor McDonald's perception to the contrary, he and I are in closer agreement about the doctrine's needed changes. On some points, however, we do divide, and our division derives from two sources. First, and most fundamentally, we disagree ...

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