Seeing It, Knowing It

Glazer, Elizabeth M. | December 6, 2009

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 “tak[ing] 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 “refin[e]—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 about how to measure doctrinal effect. Although McDonald and I agree that the obscenity doctrine should not be applied in a way that is biased toward homosexual content, he and I part ways on the issue of determining when to measure the effects of a biased obscenity test. For McDonald, unless and until the obscenity test is applied in a court of law in a biased manner—that is, unless and until a work which would not constitute obscenity but for its homosexual content is held to be unprotected—the obscenity test has not generated any discriminatory effect. This source of disagreement is fundamental because it divides McDonald and me on the question of implementation and, ultimately, on whether the obscenity doctrine merits refinement. To McDonald, the obscenity doctrine is fine as is unless and until it is misapplied in court; I believe, on the other hand, that the doctrine’s discriminatory effects are inherent to the test used and thus the doctrine merits refinement even absent “misapplication” in court. Part II of this Reply responds to McDonald’s objections that derive from our disagreement on measuring doctrinal effect.