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Powerful anti-LGBTQ priest caught on gay sex app at work

Grindr is a sex app. Men use it to meet other men for sex. Journalists at the Catholic news site The Pillar legally purchased Grindr data

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Jeffrey Burrill addressing the USCCB Fall 2020 General Assembly. (YouTube screen capture.)

By James Finn | WASHINGTON – Last autumn as the US Conference of Catholic Bishops actively lobbied Congress to kill a proposed national suicide hotline because it directed help to suicidal LGBTQ people, the Conference elected Jeffrey Burrill as their general secretary. He had worked as a high-level staffer since 2016. His promotion made him the highest-ranking, most powerful Catholic priest in the United States who is not a bishop.

On Inauguration Day, Burrill remained general secretary as the Conference’s senior bishop chastised President Biden for supporting LGBTQ equality, claiming the president’s policies “advance moral evils.” Many lay Catholics rolled their eyes, having long since rejected the Catholic clergy’s relentless homophobic hate speech.

Burrill said nothing.

Nobody expected him to. His colleagues knew him as a conservative and staunch traditionalist who was “all in” with Church teachings that gay people are “depraved” and “disordered” and that transgender people “annihilate nature.” He had been an enthusiastic participant for years advancing institutional homophobia and transphobia.

He continued to administer the day-to-day work of the Conference and lead its staff as the bishops took steps to religiously punish President Biden for refusing to enforce Catholic doctrine about abortion, for refusing to make abortion a crime for all women and doctors, including those who are not Catholic.

Burrill again said nothing.

The U.S. bishops are notoriously conservative, and they chose their man well, grooming him for more power and influence in the Church as he executed their homophobic policies, including promoting an official Catholic organization called Courage that claims homosexuality is a result of mental illness and that encourages conversion therapy, a practice every major mental health association in the world acknowledges is intensely harmful and likely to result in suicide attempts.

Then Burrill’s other shoe dropped. He’d been using Grindr at work. Constantly. For years.

Grindr is a sex app. Men use it to meet other men for sex. Journalists at the Catholic news site The Pillar legally purchased data Grindr sells to third-party vendors. The data included unique mobile-device ID numbers and geo-time stamps that allowed investigators to identify Burrill’s mobile phone as he used Grindr in his office, his homes, family members’ homes and on his travels.

They say that information is non-identifiable. This is another example of how it’s an utter lie.

— Professor Ari Ezra Waldman

The general secretary of the US Bishops Conference was using Grindr practically every day. He was spending time at gay bars and at The Entourage in Las Vegas, an upscale bathhouse where wealthy gay men meet one another for casual sex. He often used Grindr before and while driving to private residences he never visited again.

Three disturbing stories pop out in this scandal about a homophobic gay priest

The first implicates Grindr and other tech companies that behave recklessly as they betray user privacy. The second centers around a continuing Catholic tendency to conflate gay men with pedophiles and sexual abusers. The third is the hypocrisy of homophobic Catholic clergy pushing official Church anti-LGBTQ hate speech. Let’s break each of these stories down.

1.) Privacy implications are dystopian in scale

This story is at least as worrisome as the Pegasus spyware scandal that also rocked the privacy world this week. But while Pegasus is sold to governments for tens of millions of dollars, the techniques that outed Burrill don’t require expensive software and are available to almost anyone.

The Pillar investigators were able to legally buy aggregated Grindr data from third party sources and use it to identify Burrill based on his movements. This should trouble anyone who uses a mobile device. Grindr routinely sold highly granular location and demographic data to advertising networks and analytic firms.

Pretty much every social media app on the Internet does this.

Grindr defends its privacy policies by pointing out they “anonymize” data before selling it, meaning they strip out names and phone numbers. But that didn’t help Burrill. Pillar investigators bought the data, observed that somebody was using Grindr on a unique mobile device just about every day at USCCB offices. From there, checking to see where else that unique device popped up in their data set was trivial. They correlated the device to Burrill’s homes, his family’s vacation home and to his publicly available travel records. They had their man for the nominal price of a data set.

Experts have long warned of the potential for this sort of tracking. Some say they’re surprised privacy violations like this haven’t already become common.

They warn that this is just the beginning.

“There’s an entire multi-hundred billion dollar industry of companies you’ve never heard of,” Northeastern University Professor Ari Ezra Waldman told Slate. “Their business model is collecting info from all corners of the internet and selling it to people so they can make general conclusions about a population and advertise to it. They say that information is non-identifiable. This is another example of how it’s an utter lie.”

Indeed, The Pillar suggests they have more stories on tap, more gay priests to out.

2.) Religious news sources are falsely framing this story as a fight against pedophilia and sex abuse while morally condemning LGBTQ people at large

The Pillar story itself is rather breathless, making one illogical leap after another to correlate consensual gay sexual activity with risks of predatory abuse. The authors describe Burrill as having engaged in “serial and illicit sexual activity” immediately after writing “he is widely reported to have played a central role” in coordinating the U.S. Church’s response to the ongoing clerical child sex abuse scandal.

Their plain implication is that sexually active gay men are incapable of protecting children from predators and present a heightened risk of being predators themselves.

The authors are not not coy about linking Grindr to the risk of child sexual abuse. They cite three examples of priests using Grindr to meet teenagers for sex but fail to make any case that Burrill himself is attracted to minors or has any track record of predatory behavior. Instead, they write, “There is no evidence to suggest that Burrill was in contact with minors through his use of Grindr. But any use of the app by the priest could be seen to present a conflict with his role in developing and overseeing national child protection policies.”

They quote Thomas Berg, a professor of moral theology at St. Joseph’s Seminary, to make their point more directly: “When it becomes evident that a cleric is regularly and glaringly failing to live continence, that can become only a step away from sexual predation.”

This assertion, repeated by many other Catholic publications in the past two days, shocks the conscious of LGBTQ people everywhere, many of whom work with children as teachers, social workers and community leaders — overseeing child protection policies without the least conflict with their private adult sexual lives.

Religion News Service jumped on the gay-bashing wagon fast, Steven P. Millies opining, “I am a sinner. So are you. So is Monsignor Jeffrey Burrill. Not one of us has a personal life that would withstand the sort of scrutiny The Pillar has applied to Burrill. Every single one of us has had a shameful moment we regret, and I suspect most of us must be caught up in cycles of sinfulness that we repeat less because we want to than because we are sinners and cannot help being sinners.”

Notice how Millies appears to defend Burrill even as he heaps hate speech on gay people, calling us shameful and sinful while implying that our sexuality is regretful.

I choked on story after hateful story like his while preparing this piece, both in nominally liberal and more conservative religious publications. The Burrill scandal has prompted a tiring and toxic wave of overt homophobia from religious writers who seem more interested in targeting gay people for moral condemnation than in focusing on the hypocrisy that should be the center of this tale.

3.) Jeffrey Burrill is a hypocrite who worked to hurt LGBTQ people while living his off hours as a sexually active gay man

First, let’s shoot down a disingenuous liberal Catholic talking point. The accusations The Pillar printed are not innuendo. They are not mere gossip. Look, I’m angry Grindr sold private data, but the data is out there now and it’s clear. Jeffrey Burrill used Grindr for years, often every day, for its intended purpose — to have sex with other men.

Gay men don’t use Grindr to talk about the weather. We don’t use it to idly chat. We use it to have sex. That’s what it’s for. Gay men don’t go to The Entourage and other bathhouses to have a steam and a cup of tea. Gay men go the Entourage for only one reason — to have sex with other men.

That’s not innuendo. It’s reality. It’s truth.

So let’s stop playing silly games, liberal Catholic press. Jeffrey Burrill, the highest ranking Catholic priest in the United States who is not a bishop, has been having sex with men for years, on purpose, on a regular basis, and often while traveling on the Church’s dime.

He did this while working for The U.S. Conference of Catholic Bishops, arguably the most cruel homophobic organization in the United States. You don’t get more cruel, more immoral, than trying to stop a suicide hotline because it reaches out to queer people in crisis. American Catholics and Americans in general reacted with shock and horror when they learned of the moral depravity of the U.S. Catholic bishops in that episode.

But LGBTQ Americans have long understood the Conference’s moral depravity. The fact that the USCCB website (under Burrill’s direction) actively promotes Courage International’s conversion therapy is just another example of moral depravity. PFLAG and ILGA, respected LGBTQ human rights organizations of long standing, group Courage with extremist anti-LGBTQ hate groups.

Rightfully so!

Conversion therapy hurts people. Badly. It causes suicide. Which makes the USCCB’s effort to stop suicide-prevention outreach to LGBTQ people even more despicable.

That all this morally despicable behavior happened under the watch of a sexually active gay (or possibly bisexual) man is jaw dropping. The English language has words for vicious hypocrites like Burrill, but I won’t use them here. I already have in private, and I’ll leave the color and depth of my vocabulary as an exercise for the reader.

Can we stop feeling sorry for this homophobic gay priest, please? Patheos suggests we should “feel bad” for Burrill given he was doing nothing illegal and nothing to feel ashamed of. But this overlooks the critical fact that Burrill was complicit with oppressing and persecuting LGBTQ people, including working to pass laws to hurt gay and transgender people. (LGBTQ Nation has published a summary of the USCCB’s recent homophobic track record.)

No, there’s no shame in using a gay hookup app. There’s nothing shameful about visiting gay bars and bathhouses. That goes without saying. Anyone who suggests otherwise is indulging an ancient human habit of reviling and hurting members of gender and sexual minorities.

The shame here lies in Burrill’s complicity with evil.

He IS a member of a reviled sexual minority and he chose to climb into the highest ranks of an ancient organization that has been making life hell for LGBTQ people for centuries. He lived well. He enjoyed a luxurious (rent free) residence in Washington DC while maintaining a luxury apartment in Wisconsin and jetting around the world on Church business.

His shame lies in his fronting for a Church that pillories gay people for engaging in the very “acts of grave depravity” he indulged in all the time. His shame lies in living with one foot in a Catholic clerical world that constantly flings hate speech at LGBTQ people even as his other foot danced in a world of gay men who know the Church is dead wrong in its baseless moral condemnation and scientifically absurd diagnoses of mental disorders.

I’m glad The Pillar exposed Burrill. It needed to be done.

I’m not happy that Grindr and other tech companies make privacy invasion easy. I’m deeply troubled by the probability that meaningful privacy is no longer possible in today’s high tech world.

I’m equally troubled by the motivations of the conservative Catholic journalists at The Pillar. I know they are engaged in a witch hunt. I know they printed their story to hurt gay people and to strengthen the false notion that gay men are likely to be predatory.

But nobody in their right mind is buying that nonsense, not outside Catholic clerical circles and small numbers of extremist lay Catholics.

Lay Catholics in the United States as a group are fed up with the hierarchy’s homophobia. Unlike members of the clergy, U.S. lay Catholics are slightly more likely than the average American to support LGBTQ equality measures like equal marriage and the proposed federal Equality Act.

It’s a mystery to me why lay Catholics keep funding the Church as it works so hard to stop equality and so hard to hurt queer people, whether those queer people be Catholic or not.

This exposure of extreme hypocrisy elegantly underlines how out of step the all-male, toxically homophobic Catholic clergy are with the flock they say they lead.

American Catholics are good, decent, moral people who don’t put up with injustice. The same cannot be said for their nominal leaders. This episode of hate and hypocrisy underlines that perfectly well.

Isn’t it time for the flock to fight back against the morally depraved shepherd? Isn’t it time to end the Church’s extremist anti-LGBTQ hate speech? If not now, when?

James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to [email protected]

The preceding piece originally appeared at Prism & Pen, ‘Amplifying LGBTQ voices through the art of storytelling,’ and is republished by permission.

Commentary

It’s about visibility not ‘labels’ & it’s about ‘erasure’ & LGBTQ+ identity

LGBTQ+ isn’t a “label” it is a state of being that a human is born with and must be acknowledged, especially by an LGBTQ+ publication

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Jim & his 19-year-old Trans son Sasha on NBC's The Voice (Screenshot via NBC)

SANTA CRUZ – Nearly everyday there are comments posted to the Facebook page of this publication asking why the terms Lesbian, Gay, Bisexual, Transgender, Queer, or Out or openly LGBTQ et cetera are necessary in reporting a story or used in a headline.

The short and most obvious answer of course is that this news publication is about, written by, and published for the LGBTQ+ community, its allies and that’s that. Sadly, in today’s political environment and frankly echo chambers both left and right that message doesn’t seem to resonate.

On Saturday this newspaper published a story about the people depicted above, a father and son musical duo who competed on NBC’s ‘The Voice.’ Nothing special? Actually no, there was indeed something extraordinary, the son is Trans, and that fact was noted in the headline. There was a question raised by a commenter- why did the person being Trans matter?

In a single precise explanation, it is about visibility and for LGBTQ+ youth in particular that is a critical life altering reality. The youth need to be able to see themselves in other people, they need to be able to contrast and compare, and most assuredly they need that affirmation that their sexual identity or gender identity, or both, is validated.

While as Editor I’ll delete hate filled vitriol and just plain internet trolling by those who hide behind their keyboards and pass judgements in a New York minute, but I have left the comments that ask why it is so necessary to “label” up because there is a need for those people to ask that question and then maybe have members of the community answer.

LGBTQ+ people, young, middle aged, even seniors need to read documentation that their stories are part of a greater community. There is not a difference for the LGBTQ+ community than there is for other minorities in this regard- Black, LatinX, Asian, First Nation, (Native American) and so forth. That documentation of these stories is validation and is also very much embracing the uniqueness that characterizes any grouping of humanity.

Yes, it IS important to say so and so is L,G,B,T, or Q+ and yes while inclusivity and full equality is very much the desired and longed for ultimate outcome, it would be a disservice to simply erase the essence of a person’s being and the complexity of the human factor.

Removing the sexual orientation and or gender identity, simply because one wants to see a so-called level playing field when the reality is that the LGBTQ+ community is far from that playing field and certainly no where near any semblance of equal treatment?

That would be erasure. LGBTQ+ isn’t a “label” it is a state of being that a human is born with and must be acknowledged, especially by an LGBTQ+ publication.

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Brody Levesque is a veteran journalist and the Editor of the Los Angeles Blade.

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The 10th anniversary of the official end to ‘Don’t Ask, Don’t Tell’

The lives of 14,000 gay, lesbian and bisexual servicemembers were ruined by the time DADT officially ended

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Franklin Burch of Los Angeles, 70, at the 1993 March on Washington (Photo by Karen Ocamb)

By Karen Ocamb | WEST HOLLYWOOD – Franklin Burch was ecstatic marching down the street waving a small American flag and an “Uncle Sam: I Want You” poster during the March on Washington for Lesbian, Gay, and Bi Equal Rights and Liberation. “Gays and lesbians have a right to serve,” the 70-year old gay vet from Los Angeles told the Washington Post on April 25, 1993. “This is America, and we have these rights.”

An estimated 700,000 LGBTQ and allies agreed, marching past the White House and pouring onto the Mall, many grasping for hope during the horrific Second Wave of AIDS. An idealistic optimism was palpable. Gays had voted en masse to elect Bill Clinton as President of the United States, ejecting the Reagan-Bush administration that ignored the deaths of a generation of gay men. Clinton had promised money for AIDS research and pledged nondiscrimination policies, including lifting the ban on gays and lesbians serving in the military.

Army Col. Margarethe “Grethe” Cammermeyer and Navy Petty Officer Keith Meinhold with ACLU/SOCal’s Ramona Ripston and ANGLE’s David Mixner at an HRCF “Lift the Ban” event in West Hollywood Park Auditorium (Photo by Karen Ocamb) 
 

ANGLE’s David Mixner, a Clinton friend from the anti-Vietnam War days, strenuously pointed out that the US military was America’s largest employer, enabling gay people stuck in hateful environments to get out, get an education, see the world and serve their country. Not giving gays that opportunity was unfair, and therefore, unAmerican.

The March on Washington program opened with a stunning Robin Tyler-produced encapsulation of the moment – a sense of pride in our patriotism. To a recording of military theme songs, flag-bearing gays and lesbians who had been drummed out of the military marched onstage, accompanied by some active-duty military coming out publicly based on Clinton’s promise.

Navy Petty Officer Keith Meinhold and Army Col. Margarethe “Grethe” Cammermeyer ended the procession, with Cammermeyer calling everyone to attention. The crowd – including me – stood at attention, too, tears streaming down our faces at the courage of our people to serve a country that still treated us as deviants. 

Dorothy Hajdys, Allen Schindler’s mother, at DADT protest in Long beach (Photo by Karen Ocamb) 

Then Dorothy Hajdys took the stage carrying a framed photo of her son, Petty Officer Third Class Allen Schindler, murdered six months earlier in a public toilet in Sasebo, Nagasaki, Japan by two shipmates. The coroner said Schindler’s injuries were worse “than the damage to a person who’d been stomped by a horse.” Schindler could only be identified by the tattoos on his arm. The March on Washington crowd gave Hajdys a 10-minute standing ovation. We knew the cost of freedom.

House Speaker Nancy Pelosi read a letter from Clinton, who didn’t attend or send a video, as expected. “I stand with you in the struggle for equality for All Americans, including gay men and lesbians,” Clinton wrote. “In this great country, founded on the principle that all people are created equal, we must learn to put aside what divides us and focus on what we share.”

Liberal Democratic icon Senator Edward M. Kennedy spoke via an audio tape, comparing our March to the famous civil rights march of 1963. “We stand again at the crossroads of national conscience,” Kennedy said.

But there were hints of a coming storm. Robin Tyler tore a Clinton telegram of apology on stage as unacceptable. “A Simple Matter of Justice” banner flapped in the background as beloved ally actress Judith Light said:  “I am grateful to you, the gay and lesbian community, for the impact you are having on all of society. I am grateful for your teaching Colin Powell about equal opportunity. I am grateful for your teaching Sam Nunn about moving into the 20th Century. I am grateful for your teaching George Bush about the consequences of irresponsible neglect and misuse of power. And you are in the process of teaching President Clinton the importance of being a leader and the dangers of compromising with what is right and just.”   

But teaching doesn’t equal lessons learned. Clinton betrayed us, agreeing to a Nunn-devised “compromise” on lifting the gay ban called “Don’t Ask, Don’t Tell, Don’t Pursue.” Democratic Sen. Sam Nunn and Republican John Warner evoked horrific “gay sexual predator” images as they went aboard a submarine to ask sailors how they’d feel lying in such proximity to a gay shipmate. The subtext was clearly an invitation to harass those suspected of being gay and lesbian. Witch hunts were sport.

David Mixner, Diane Abbitt, Roberta Bennett, John Duran protesting DADT (Photo by Jeremy Bernard)  

The cruelty of DADT went beyond the physical. If a buddy on the frontlines in Iraq or Afghanistan was killed by an improvised explosive device (IED), the gay servicemember could not share the fear, the pain, the trauma because letters back home were checked and psychiatrists and chaplains had to report gay-related confessions. The lives of 14,000 gay, lesbian and bisexual servicemembers were ruined by the time DADT officially ended a decade later, on Sept. 20, 2011.

Today, marking the 10th anniversary of the official repeal, the Veterans Administration concedes it is still catching up with all the damage governmental politics created. It’s estimated that more than 114,000 LGBTQ servicemembers or those perceived to be LGBTQ were discharged between Franklin Burch’s service in World War II and the repeal of DADT. 

“Although VA recognizes that the trauma caused by the military’s decades-long policy of discrimination against LGBTQ+ people cannot be undone in a few short months, the Biden administration and Secretary McDonough are taking the steps necessary to begin addressing the pain that such policies have created. LGBTQ+ Veterans are not any less worthy of the care and services that all Veterans earn through their service, and VA is committed to making sure that they have equal access to those services,” writes Kayla Williams, a bisexual veteran and assistant secretary for public affairs in VA’s Office of Public and Intergovernmental Affairs on the VA blog. 

Clinton’s betrayal broke our hearts and ruined lives. But amazingly, it did not stop us — which attorney C. Dixon Osburn, a civilian graduate of Georgetown University Law, recounts in his just released must-read book Mission Possible: The Story of the Repealing of ‘Don’t Ask, Don’t Tell.’ 

This is the stunning story of how Osburn and attorney Michelle Benecke, a Harvard Law graduate and former Army captain, founded Servicemembers Legal Defense Network to immediately help desperate servicemembers and work with nonprofit allies and law firms to challenge DADT in the courtroom and in the court of public opinion.

Mission Possible completes an important trilogy about LGBTQ people serving in the US military, next to Coming Out Under Fire, by Alan Bérubé and Randy Shilts’ Conduct Unbecoming: Lesbians and Gays in the U.S. Military.

These books are not only LGBTQ history, but about our patriotism and what drives our private lives — and how government has intervened to block us at every step based on bias. 

Dixon Osburn leading protest of DADT (Photo courtesy Osborn/SLDN) 

Mission Possible is also a book about endurance, ingenuity and triumph. If a united gay voting bloc and 700,000 people on the Mall and thousands more back home didn’t give Clinton enough clout or backbone to keep his promise to lift the gay military ban – SLDN needed a smart, comprehensive strategy and a willingness and stamina to keep their eyes on the distant prize of repealing DADT. After educating an anti-military community and fighting a “graveyard mentality” that believed that lifting the gay ban was impossible, they had to figure out how to secure bipartisan support.

And there was bipartisan support, privately. “Party sticks with party, unless there’s a breakthrough, Osborn says, noting that GOP Sen. Lisa Murkowski told him: “You have to create the moment so I can be with you.” 

With the discharge of the Arab linguists, DADT became less an issue of civil rights and more publicly an obstacle to national security. There are scores of nail-biting behind-the-scenes stories about how SLDN shifted the public and military consciousness from July 1993 to September 20, 2011, “when President Barack Obama, Secretary of Defense Robert Gates, and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, certified to Congress that implementing repeal of the policy would have no effect on military readiness, military effectiveness, unit cohesion, or recruiting and retention.”

President Obama signs the certification stating the statutory requirements for repeal of “Don’t Ask, Don’t Tell” have been met 9-20-2011 (Official White House Photo by Pete Souza)

December 18, 2010 – on Osburn’s birthday – the Senate finally voted to deliver more than 60 votes to overcome Republican Sen. John McCain’s repeated and stubborn use of the filibuster to block repeal. There are echoes of political machinations of today.

There are crafty stories, as well, illustrating the absurdity of DADT. For instance, Army Sergeant Darren Manzella, Osburn writes, “was the epitome of the competent, well-regarded openly gay soldier who put a lie to the belief that his mere presence would weaken military readiness. He was out to his Army buddies and had even introduced them to his boyfriend.” In 2006 at Fort Hood, he started getting anonymous emails and “calls warning him that he was being watched and to ‘turn the flame down.’” He sought advice from his commanding officer which triggered an investigation, with which Manzella fully cooperated. The Army concluded he wasn’t gay and told him to go back to work. He was subsequently deployed to Iraq, then Kuwait, unsure whether a new commander would discharge him. 

SLDN reached out to Manzella to see if he’d be willing to do a 60 Minutes interview, explaining the pros and cons if he went forward. He said yes, but how to do it knowing the Army wouldn’t grant permission? SLDN communications director Steve Ralls came up with a plan. “Manzella signed up to run in the Army marathon in Kuwait. At a predetermined point, he veered off-course to a waiting car that whisked him to a hotel, where he changed into civilian clothes and met with correspondent Lesley Stahl. After the interview, he changed back into his running clothes, the crew doused him with sweaty water, and the car whisked him back so he could cross the finish line,” Osburn writes. “Once the segment was broadcast, the Army could no longer pretend that Manzella wasn’t gay, or that ‘Don’t ask, don’t tell’ was a law with an on-off switch. He was discharged six months later and became one of the many vocal advocates for repeal.”

On December 22, 2010, President Barack Obama kept the campaign promise he made and signed the repeal of Don’t Ask, Don’t Tell. “For we are not a nation that says, ‘don’t ask, don’t tell.’ We are a nation that says, ‘Out of many, we are one.’  We are a nation that welcomes the service of every patriot.  We are a nation that believes that all men and women are created equal. Those are the ideals that generations have fought for.  Those are the ideals that we uphold today,” Obama said.  “And now, it is my honor to sign this bill into law.”

President Barack Obama signs the Don’t Ask, Don’t Tell Repeal Act of 2010 during a ceremony at the Interior Department in Washington, D.C., Dec. 22, 2010.
(Official White House Photo by Chuck Kennedy)

“There’s been a lot of progress in the last 10 years – despite the last four,” Osburn says. “It’s all been teed up by SLDN.” 

But we still are not fully first-class citizens, though we now have the right to serve and die for our country. The Equality Act is next.

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Karen Ocamb is a veteran journalist, who now works for Public Justice. She has chronicled the lives of LGBTQ+ people in Southern California for over 30 plus years.

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Texas abortion ban author: State can control private sex

The architect of the Texas law that bans abortion says the government should have the power to regulate your private sexual conduct

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This drawing from OpenClipArt has been used to illustrate ‘The Scarlett Letter’

By James Finn | DETROIT, Mi. – Do you think your consensual adult sexual behavior in your own home is nobody’s business but yours? Do you think The Scarlett Letter is a cautionary tale? Do you believe you enjoy the fundamental right to be free from state control of your sex life?

Jonathan Mitchell says you’re wrong. The architect of the Texas law that bans abortion at about six weeks after conception (before many women even know they’re pregnant) says the government should have the power to regulate your private sexual conduct.

Yes, really.

He and co-counsel Adam Mortara just spelled that out in an amicus brief to the U.S. Supreme Court, a friend-of-the-court filing in a Mississippi abortion case in which they urge the justices to overturn the landmark Roe v. Wade.

They don’t stop with the high court’s abortion-ban precedent. They take direct aim at privacy rulings that bar states from banning same-sex marriage or criminalizing private sex like same-gender sex, oral sex, and anal sex. They tell the court outright that people in the U.S. do not enjoy a fundamental right to private sex lives.

This is a remarkable argument from a legal duo who represent leading contemporary thought in the Republican Party, which has traditionally positioned itself as a champion of individual liberty. Many Republicans say they are loyal to the Republican Party because they want the state out of their private lives. I wonder how many of them understand the extent to which leading Republican thinkers urge more state control rather than less state control.

Mitchell’s ‘vigilante’ provision is a clever trick but not a central problem

Mitchell is most well known for his “private right of action” innovation in the the Texas abortion ban, a clever legal trick that has so far impeded judicial review. His innovation, which he’s been thinking about publicly since at least 2018, removes government actors from enforcement. No government actors means potential plaintiffs have nobody to sue. Nobody to sue means courts can’t rule on the law one way or the other.

But as clever as his idea is, it’s still a trick, and other clever people are working hard to bring cases that can be heard and ruled on. Court watchers say they will eventually succeed, that the justices will be forced to confront the central liberty infringement of the Texas law. Then what? Isn’t the right to abortion too firmly embedded in legal theory and practice to be overturned now?

Overturning Roe has far-reaching liberty consequences

No women’s rights are infringed, Mitchell and Mortara write in defense of the Mississippi abortion ban I cited above, because if women don’t want children, they can always choose not to have sex. This argument would apply, they write, even if women’s access to contraception were not assured, claiming a private sex life is not a fundamental liberty guaranteed by the Constitution.

They argue without apology for the right of the State to control women’s bodies, but they don’t stop there.

They acknowledge their legal reasoning leaves “gay sex” rights and same-sex marriage “hanging by a thread” and seem quite cheerful about that. They claim those rights are “lawless,” and the court should not agonize over them. They don’t say so out loud, but their arguments also imply that states should be free to bar or impose barriers to contraception.

‘Outsider’ Mitchell narratives lack context

Mitchell, 45, is often described as a political outsider, but that’s not broadly true. He’s a conservative ideologue who’s spent almost two decades moving between government posts and prestigious law professorships at institutions like Stanford and the University of Texas at Austin. He was a law clerk to the late conservative Supreme Court Justice Antonin Scalia. (His co-counsel Adam Mortara clerked for conservative Justice Clarence Thomas, who never met an individual liberty he couldn’t dismiss or state power he couldn’t justify.)

Mitchell served as Texas solicitor general from 2010 to 2015. He served on Donald Trump’s presidential transition team and was unsuccessfully nominated by Trump to head a federal agency.

He was short listed as a potential Trump Supreme Court nominee and has strong ties to the Federalist Society, which besides taking a constrictive view of human liberty, has long sought to overturn Roe. Mitchell’s legal work has been funded by the Alliance Defending Freedom, which despite the name is mostly known for defending organizations that constrain individual freedom in the name of institutional religious privilege. The Alliance was at one time considered fringe in Republican circles but is now mainstream.

Mitchell is not an outsider. He sits at the center of Trumpian and post-Trump conservative ideology, a center that might surprise the large majority of Americans who, irrespective of party affiliation, value personal liberty more than Mitchell, Mortara, Justice Thomas, et al.

The Scarlett Letter and American Puritanism

In 1850, Nathaniel Hawthorne penned The Scarlet Letter: A Romance, a historical fiction novel now read by most U.S. students while still in high school. The novel is complex and has much to say about human failings, faith, religion, and redemption. But in the main, Americans read the novel as a cautionary tale, a rejection of Puritan anti-liberty practices, an indirect defense of individual liberty. We see protagonist Hester Prynne as a victim of neighbors who can’t or won’t mind their own business.

Americans hold personal liberty in such high esteem that the 2003 Supreme Court decision in Lawrence v. Texas shocked many of us. When the justices ruled that Texas could not enforce a criminal law against two men having sex in the privacy of their own bedroom, the typical reaction went something like, “Of course! Isn’t private sex already a fundamental liberty? How could this ruling even have been necessary?”

That reaction takes us to the heart of constitutional liberty and privacy arguments. Most Americans, like me, believe the State should not have the power to deprive people of individual liberty without a truly compelling State interest. We believe that rights don’t have to be enumerated in the Constitution to be protected. We believe individual liberty is presumed, not granted. We believe that without privacy, true liberty withers on the vine.

We believe the State has no business interfering in anyone’s private sex life.

These are all principles that have at various times been held up by conservatives as virtues. I internalized these ideas as conservative when I was a child attending a very conservative private religious school. As a child in the 70s, I understood the Republican Party to stand for defending these liberty ideas.

When Jonathan Mitchell and Adam Mortara write that the State ought to have the right to control private sex lives, and when Republican thought leaders cheer them on, we had all better sit up and pay attention. Republicans especially should pay attention.

The Grand Old Party isn’t what it used to be. Conservative values aren’t what they used to be. Hester Prynne has a lot to teach us. The question is, will we pay attention before it’s too late?

Do you really want to live in a country where politicians decide if and how you can have sex? I don’t. Now, what are we going to do about it?

********************

James Finn is a former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, a regular columnist for queer news outlets, and an “agented” but unpublished novelist. Send questions, comments, and story ideas to [email protected]

The preceding article was previously published at Prism & Pen– Amplifying LGBTQ voices through the art of storytelling, and is republished here by permission.

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