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The recent electoral victory of Barack Obama and the Democratic party presents a unique opportunity to overturn the most perverse policy of the Bush administration and the religious right, the conservative repressive sexual agenda. The following nine proposals can help frame a new sexual agenda to be introduced in the first 100 days.
For the last three decades the religious right fought a take-no-prisoners war over popular morality. Taking power with Bush’s victory in 2000, Christian conservatives were finally in the position to impose their beliefs as public policy. And they did so with a vengeance. At the local, state and federal levels, religious zealots, working through the Republican party, took control of the apparatus of the State and aggressively implemented a diverse set of programs to further their goal of creating a morally upstanding, Christian society. Family life, sexual relations, education, scientific knowledge and popular entertainment became battlegrounds of
the culture wars.
The culture wars played a decisive role in the 2000 and 2004 elections, but were eclipsed in the 2006 Congressional elections, the religious right’s moral fervor spent. While sex issues were all but absent from the 2008 national presidential campaign, they did help rally the conservative faithful at the state level. Efforts to outlaw gay marriage were successful in Arizona (Proposition 102), California (Proposition 8)and Florida (Marriage Protection Amendment) as was Arkansas’ Proposed Initiative Act No. 1 that prohibits co-habiting couples of the same sex, whether gay or straight, from either adopting a child or serving as foster parents.
Nevertheless, efforts in Colorado (Amendment 45) and South Dakota (Initiated Measure 11) to, respectively, establish “fetal personhood” and ban abortion failed. And in Washington, voters approved a proposition permitting physician-assisted suicide similar to one already in force in Oregon. In 2008, it was the collapsing economy, failed Bush policies and culture-war fatigue as well as Obama’s broad popular appeal that turned the tide for the Democrats.
The Democratic landslide provides a unique opportunity for Congress and the President-elect to quickly address at least one of the many profound failings of the Bush administration, its repressive sex policies. The following proposals can help frame the upcoming battle for political reform and, hopefully, finally put an end to the religious right’s culture wars.
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Proposal #1: Safeguard Roe v Wade
President-elect Obama was a co-sponsor of the 2007 Senate version of the Freedom of Choice Act (S. 1173) that would reaffirm Roe as a fundamental right. As he stated: “Throughout my career, I’ve been a consistent and strong supporter of reproductive justice, and have consistently had a 100% pro-choice rating with Planned Parenthood and NARAL Pro-Choice America.” Congress should pass and Obama should sign the Freedom on Choice Act.
If enacted, the law would effectively overturn many state and federal restrictions imposed over the last eight years on a woman’s ability to choose an abortion. In particular, the Act would lift requirements on health-care providers to provide questionable medical “information” about the risks of having an abortion; lift restrictions limiting abortion providers to only licensed physicians; lift parental-notification and approval requirements for minors seeking an abortion; and overturn the dubiously-named “partial-birth abortions” laws.
One of the critical features of the Roe decision was establishing personhood at the moment of birth. As evident in Colorado voters’ rejection of the “fetal personhood” proposition, the notion of personhood at the moment of conception is a veiled attempt to undercut Roe. Medico-scientific advances are pushing the moment of birth earlier and earlier before full-term is reached, with an increasing number of ever-smaller preemies living healthy lives. This is a remarkable accomplishment and should only strengthen the need to ensure that personhood remains at birth.
Proposal #2: End Abstinence Policies
The Bush administration’s abstinence-only crusade is a failure. Mounting research data indicates an upswing in pregnancy among teen girls, including Sarah Palin’s daughter, Bristol, and that the abstinence-only policy must be replaced. Abstinence-only education contributes to unwanted pregnancies, oftentimes leading to unwanted abortions. According to the ACLU, the federal government has spent more than $700 million since 1997 on abstinence-only programs and, last year, allocated approximately $170 million to such programs.
Obama once insisted: “As President, I will improve access to affordable health care and work to ensure that our teens are getting the information and services they need to stay safe and healthy.” Democrats need to take Obama at his word and quickly move to end funding for existing abstinence-only programs and implement a more humane, sex-positive and age- appropriate educational programs.
In addition, humane sex education is only half the challenge in addressing the needs of teens and young people regarding their sexual health. The monies that have been wasted on abstinence-only programs should be more wisely spent on providing health care screenings and, where appropriate, birth control materials. A young person needs to be supported in terms of both her/his mind and body for an effective sex education program to work.
Proposal #3: Remove Religion from the Classroom
U.S. District Judge John Jones ruled in December 2005 that the board of Dover, PA, school district had violated the Establishment Clause of the First Amendment by requiring biology teachers to include “intelligent design” in their curriculum. In a trial recalling the legendary 1925 Scopes monkey trial, the judge found that such intellectual hokum was nothing more than a disguised form of creationism smuggled into the classroom under a different name.
For the last half-century, Americans have attempted to restricted religious practice in public life, especially prayer in school. In 1962, Engel v. Vitale ended state-mandated, teacher-led prayer; the follow years, Abington Township v. Schemmp extended Engel. The 1971 Lemon v. Kurtzman called for the strick separation of church and state. And the 1985 Wallace v. Jaffree decision ended the moment of prayer in the classroom. While believes of all strips need to have their First Amedment rights protected, even in voluntary group meeting in schools, relgion needs to removed from the classroom.
The tyranny of religion is the ignorance it fosters. As evident in the Dover decision and other battles over evolution, this ignornace has found expression and public-policy legitimacy in the many false Bush-administration claims like those that linked abortion to breast cancer and advised that condoms to not prevent conception or transmission of sexual diseases. The administration of lies must be thoroughly repudiated and replaced.
Proposal #4: Accept Civil Unions & Marriage among Same-Sex Couples
President-elect Obama has come out in favor of civil unions and in opposition to marriage among same-sex couples. The recent electoral decisions banning gay marriage in Arizona, California and Florida reflect a deep fear among many Americas about the meaning of marriage, personal intimacy, in a rapidly changing world.
According to the Human Rights Campaign, twenty-six additional states that have constitutionally restricted marriage to one man and one woman. These states are: Alabama (2006), Alaska (1998), Arkansas (2004), Colorado, Georgia (2004), Kansas (2005), Idaho (2006), Kentucky (2004), Louisiana (2004), Michigan (2004), Mississippi (2004), Missouri (2004), Montana (2004), Nebraska (2000), Nevada (2002), North Dakota (2004), Ohio 2004), Oklahoma (2004), Oregon (2004), South Carolina (2006), South Dakota (2006), Tennessee (2006), Texas (2005), Utah (2004), Virginia (2006) and Wisconsin (2006).
In addition, fifteen states have passed laws, but not constitutional amendments, restricting marriage to one man and one woman. These include Delaware, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, Minnesota, New Hampshire, North Carolina, Pennsylvania, Vermont, Washington, West Virginia and Wyoming.
However, the question that haunts these popular initiatives is simple: Are they Constitutional? Since America was first settled by English colonists nearly four centuries ago, there has been a persistent battle between civil and religious authorities over who had the power to legitimized a marriage agreement. Is marriage a legal contract between consenting adults involving property relations or a sacred relation involving a holy union mediated by god? In practice, civil society has won the battle and determines formal marital agreements. However, religious organizations persist in laying claim to a role in sanctifying these relations. This confusion must finally be put to rest.
Gay marriage is legal in two states, Connecticut and Massachusetts. A peculiarly historic irony informs the gay-marriage issue as Obama assumes the presidency. When Obama’s parents married in 1960, twenty-two states had laws prohibiting interracial marriage. These states ranged from traditional hard-core racist strongholds like Alabama, Mississippi and Louisiana to otherwise moderate Delaware and Maryland. The Supreme Court’s now-celebrated Loving decision of 1967 voided "racial hygiene" laws, finding that state “anti-miscegenation” law violated the Equal Protection and Due Process Clauses of the Constitution’s 14th Amendment. A similar Court decision could well apply to marriage among gay men and women and, thus, finally bring full bourgeois rights to a discriminated minority.
Proposal #5: End “Don’t Ask/Don’t Tell”
President-elect Obama earlier this year announced his intention to end the "Don’t Ask/Don’t Tell" [DADT] policy banning gay people from military service. "There’s increasing recognition within the armed forces that this is a counterproductive strategy,” he said, “ya know, we’re spending large sums of money to kick highly qualified gays or lesbians out of our military, some of whom possess specialties like Arab-language capabilities that we desperately need. That doesn’t make us more safe". [NY Daily News, April 11, 2008]
Congress should pass and the new president should sign the Military Readiness Enhancement Act [MREA]. MREA ends the discriminatory and unworkable policies inherent to DADT. It was introduced in the 109th Congress by Rep. Martin Meehan (D-MA) and has 122 bipartisan co-sponsors.
In a 2006 report, the Boston Globe found that since 1994 a total of 9,682 soldiers have been discharged on sexual ground. It reports that “the number of soldiers facing discharge under the [DADT] policy has dropped steadily — from 1,273 in 2001 to 906 in 2002 and 787 in 2003 … .” Time magazine argues that “because the military is fighting two wars, commanders discharge only about 600 bisexuals, gays and lesbians each year, down from about 1,200 a year in the late ’90s.” [Boston Globe, March 19, 2006; Time, July 23, 2008]
The new president and Congress could join an increasing number of former military leaders calling for DADT’s repeal. General John Shalikashvili, former chairman of the Joint Chiefs of Staff and former supporter of DADT, is one of its fiercest critics, arguing that it is simply an unworkable policy. "When that day [of ending DADT] comes, gay men and lesbians will no longer have to conceal who they are, and the military will no longer need to sacrifice those whose service it cannot afford to lose."
His assessment is shared by former defense secretary William Cohen. He argues that "we’re hearing from within the military what we’re hearing from within society,that we’re becoming a much more open, tolerant society for diverse opinions and orientation." It’s time to deposit DADT in the dustbin of history.
Proposal #6: Adopt Enlightened Obscenity Standards
The ’08 presidential campaign was remarkable for the absence of any discussion by the two leading candidates of obscenity or pornography, decency. Bob Peters, president of the conservative advocacy group, Morality in Media, solicited replies from both candidates as to their respective positions on enforcing pornography laws. He reports that neither candidate replied to his inquiry. The candidates’ shared silence on the issue of media pornography speaks volumes as to the relative acceptance of “indecent” materials among consenting adult Americans. [OneNewsNow, August 15,2008]
Federal obscenity policies are framed by an effort to protect the “public” for what is broadly considered pornographic or “indecent” materials. These efforts focus on two principal areas: (i) indecent expressions offered over broadcast media like television and radio that might offend a viewer/listener and (ii) the display of sexually explicit images of children on the Internet.
In the wake of Janet Jackson now infamous “accidental” display of her breast during the 2004 Super Bowl halftime show and incidents involving Cher and Nicole Richie during live award shows in 2002 and 2003, the issue of "fleeting" expletives is now under consideration by the Supreme Court. This decision could be as significant as the 1978 FCC vs. Pacifica ruling against the broadcast (i.e., the censorship) of George Carlin’s "seven dirty words". Times change, one can only wonder if justice does as well?
The Court recently upheld, in a 7-to-2 ruling, the 2003 “Protect Act” (an acronym for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) that seeks to curb sexually explicit images of children on the Internet. The law applies to "any person who knowingly advertises, promotes, presents, distributes, or solicits" child pornography. Some civil libertarians wonder whether movies or innocent photographs of babies in the bath might be covered by the law. The two dissenting justices were David Souter and Ruth Bader Ginsburg.
As a Constitutional lawyer, President-elect Obama will likely give special consideration to his appointments to the FCC and, in time, the federal courts. One can only hope these appointments will encourage personal freedoms and enhance individual choice while preserving and protecting the privacy of those most vulnerable to violation and without genuine consent. Justices like Souter and Ginsburg.
Proposal #7: Decriminalize & Regulate Commercial Sex
President-elect Obama must have met one or more commercial sex workers during his days organizing on the streets of Chicago’s South Side. Our next president knows something about American urban life. He must know, like most Americans, that, like the “war on drugs”, every attempt to halt this illegal activity has failed.
The FBI reports that in 2005, 85,000 arrests were made for prostitution or commercial vice; such arrests declined by 13 percent (from 98,000) over the preceding decade. Law enforcement anti-prostitution efforts are focused on public nuisance offenses. Thus, they tend to target streetwalkers, massage-parlor workers (often non-documented migrants) and strippers or pole-dancers in would-be gentlemen’s clubs. The secret sex trade, accessed through escort services, craigslist and news weeklies, flourishes.
Two states have decriminalized and regulated commercial sex. In Nevada, brothel prostitution is regulated in rural counties. In Rhode Island, private consensual commercial adult sex has been decriminalized, although the state still enforces laws against streetwalkers and brothel prostitutes. In years to come, we are likely to see further decriminalization efforts in other states and localities.
The Democrats and the next president can make a big dent in the “war on drugs” and commercial vice by decriminalizing and regulating both enterprises. In addition, they should support the adoption of national “Safe Harbor Laws” that protect young people (to 18 years of age) from criminal prosecution if arrested for prostitution and that provide the needed social and medical services for their rehabilitation.
Proposal #8: Develop Better Diagnostic, Treatment & Incarceration Methods for Sex Offenders
The President-elect and the Congress have a unique opportunity to address one of America’s oldest and thorniest questions: How to deal with sex offenders. They have been part of the social landscape since the nation’s earliest colonization and persist as social deviants, increasingly identified as criminals. As presented on shows like NBC’s “Dateline” series, “To Catch a Predator”, their apparent omni-presence fosters a state of constant fear and trepidation among the American.
In response to vocal public outrage over the apparent ubiqutous presence of offenders “free” in their community, state goverments are pushing far-reaching civil confinement law. With its passage earlier this year, New York joined nineteen other states that permit the continued imprisonment of sex offenders after they have completed their sentence. Civil confinement permits the state to transform a criminal sentence with a specified duration into an indeterminate life sentence.
The President-elect and the Congress should initiate a two-front educational campaign that addresses the issue of sexual offenders. The first front would be directed to the general public and help deal with the widespread fear about the actual treat represented by sex offenders. It can also inform participants about the realities of childhood sexuality. Thus, it can dispel many popular myths, like sex crime is on the increase. It can help the public recognize sexual abuse and assess the experiences of both the victim and perpetrator of such behavior. Equally important, such a campaign would include a “professional” component made up of thoughtful representatives from appropriate federal agencies, law enforcement groups, criminology, public interest and legal organizations, psychology and other fields that addresses the issues of sex offenders.
The output from such a “blue ribbon” committee could lead to legislative, law-enforcement and clinical recommendations that could help America finally address the problem of sex offenders. It would be an invaluable contribution by the Obama administration and a progressive Congress.
Proposal #9: Reform, Extend & Strengthen PEPFAR
President-elect Obama should move quickly to adopt Congress’ revision of the Bush administration’s PEPFAR programs (for President’s Emergency Plan for AIDS Relief). Bush first promulgated it in his 2003 State of the Union address, declaring: "I ask the Congress to commit $15 billion over the next five years, to turn the tide against AIDS in the most afflicted nations of Africa and the Caribbean." And it did.
PEPFAR, the centerpiece effort for U.S. “soft” foreign diplomacy, suffers the same failures as other Bush-administration programs that deal with cultural values, including abortion and teen sex education. It is intended to improve the care, treatment and prevention of those suffering from HIV/AIDS in developing countries. While limitedly successful, for anything is better then nothing, it could never achieve its true potential because of its ideological blinders. Put simply, its prevention efforts are inhibited by its restrictions on condom.
Earlier this year Congressed passed legislation reauthorizing PEPFAR (HR-5501). It allocate $50 billion for PEPFAR over the next five years, rejected White House efforts to hold funding to $30 billion. It also removed a requirement that at least one-third of HIV prevention funds went to abstinence-until-marriage programs. It signals a new PEPFAR.
The new 111th Congress should quickly pass this reauthorization legislation and the new president should sigh it. It will signal not only a change in foreign health-care policy and “soft” diplomacy, but perhaps a change in overall international relations as well. Of course, the great-unanswered questions of Iraq, Afghanistan, Pakistan,Iraq and Palestine-Israel remain to be addressed.
DAVID ROSEN is the author of the forthcoming, "America’s Grand Sex Scandals: From Pochontas to George W. Bush" (Key, 2009), and can be reached at firstname.lastname@example.org.