This is an interesting time in the changing legal landscape relating to gay and lesbian prisoners, but public and scholarly attention is lacking. Rights of lesbian, gay, bisexual and transgendered prisoners are often conceived of either in long-established concerns relating to guards’ discrimination or in newly popular attention to the special needs of transgendered prisoners. Although these are important issues, such a focus can lead advocates and courts to overlook the evolving standards (or stagnant policies, despite apparent potential for progress) regarding the rights of gay and lesbian prisoners.
This article discusses three recent legal and social developments that have application in the prison context but are yet to be fully explored there. It begins by examining an area that receives much attention in most every other aspect of society: same-sex marriage and correlative rights. Visitation and other rights are vastly different for gay and lesbian prisoners unless the progress in broader society in this regard is brought to bear upon the prison system. The article next discusses the First Amendment right to access information – perhaps the most traditional of civil liberties that is still overlooked when it comes to prisoners – and notes the special discrimination against LGBT publications.
Finally, the article touches upon the controversial topic of homosexual protective custody, and notes that judicial unwillingness to require standards has left the issue stagnated and ill-explored.
Spousal Visitation Rights
In most regards, visitation policies vary too greatly and are too dependent upon individualized factors relating to each prisoner to be subject to easy categorization or analysis based on the impact on gay and lesbian prisoners. However, there is one form of visitation that is categorically and uniformly limited to spouses, if provided at all:
conjugal visits. Contrary to popular conceptions, the defining characteristic of the value of a conjugal visit is not sex but the opportunity to spend time with one’s life partner. The visits are more accurately referred to as “family visits” by the prison systems which allow them. As one scholar explains, “The term ‘conjugal’ refers to the rights that are the recognized inherent rights of married couples in society and ‘[s]ex is but one component of these rights.’ Conjugal rights encompass the rights of a couple to associate together, build a home together and enjoy all the privileges of an interpersonal relationship together. Therefore, conjugal visits enable inmates to enjoy these attributes while they are incarcerated. Conjugal visits encourage and promote normal family behavior, a critical component of the rehabilitation process.”2
Married couples are allowed conjugal visits in only five penal systems in the U.S.: state prisons in California, New Mexico, New York, Washington, and Mississippi.3 Three of these jurisdictions recognize gay marriage to some extent, and a fourth recognizes domestic partnerships. California4 (and Massachusetts5) recognize same-sex marriages and allow them to be conducted in their state. New Mexico residents can get marriage certificates from Massachusetts, based on its formal legal opinion that there is no ban in New Mexico on recognition of same-sex marriages.6 New York recognizes same-sex marriages validly performed outside the state.7 Washington law expressly prohibits recognition of same-sex marriages, but provides for registered domestic partnerships that engender specified rights.8 On the other extreme, Mississippi, by statute and through a provision of its state constitution, prohibits gay marriage and expressly bars recognition of gay marriages validly performed elsewhere.9
In addition to the newly announced recognition of gay marriage (which will be explored in a moment), California’s Domestic Partner Rights and Responsibilities Act of 2003 is extremely broad, providing that “Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”10
From the plain language of the statute, then, if the California Department of Corrections and Rehabilitation will allow prisoners to have conjugal visits with a spouse, as it does, then it must allow the same privilege for registered domestic partners. This reasoning, perhaps unsurprisingly, was initially resisted by the prison system. But after threats of litigation, the California agency relented and announced new policies clarifying that prisoners with same-sex registered domestic partners are entitled to conjugal visits.11
This appears to be the clearest governmental recognition to date of the right to spousal/conjugal visits for a prisoner with a same-sex partner.
California’s Supreme Court recently held that the state must make full marriage available to same-sex couples.12 The domestic partner statute and the CDCR’s interpretation remain extremely important, however, because some gay and lesbian couples may choose to remain registered domestic partners, preferring that to marriage for any number of personal reasons. Moreover, the Court’s decision is subject to reversal by constitutional amendment, a proposal for which will be before the voters in November.13
Regardless of what may happen in November, the California Supreme Court’s recent decision will have wide-ranging implications for gay and lesbian litigants, including anyone challenging a prison’s arguably discriminatory policies on any subject. This is because the Court held that sexual orientation discrimination is to be subject to the same heightened scrutiny as discrimination based on other suspect classes, such as race and religion.14 In the past, discrimination against gays and lesbians (in prison or out) could be justified by the state with nothing more than a “rational basis” for the different treatment – the lowest level of inquiry in constitutional jurisprudence. California’s recent decision reverses that, so discrimination on the basis of sexual orientation will be permissible only under circumstances in which the discrimination is truly necessary to meet an extremely important need. This is the same standard applied in instances of racial discrimination.
In the rest of North America, even prison systems are beginning to recognize and accommodate gay marriages. Canada allows same-sex prisoners to wed while still incarcerated. Last October, two male inmates of a federal penitentiary in Quebec province married in the prison chapel. It was the third gay marriage to be performed in a federal prison in Canada since gay marriage was recognized on the national level in July 2005.15 Canada permits “private family visits” for a broad range of relatives including same-sex couples, but the visitor cannot be another prisoner.16 In Mexico, the National Human Rights Commission ruled in February 2007 that conjugal visits must be allowed to same-sex couples on the same terms and conditions as are extended to straight couples, and Mexico City’s jail had its first same-sex partner conjugal visit the following July.17
Importantly, this article addressed only the formal policies for visitation that are premised upon the prison system’s recognition of a person as the prisoner’s “spouse” or the legal equivalent of a spouse. There are a variety of other visitation rules and informal practices that lead to discrimination against gay and lesbian prisoners. For instance, PLN is aware of considerable anecdotal evidence that guards frequently prevent prisoners from hugging or holding hands with a same-sex visitor or engaging in other touching or signs of affection that would be allowed with a straight relationship. Addressing this form of discrimination poses considerable proof problems and other complications, making both litigation and policy proposals scarce.
Right To Receive Information
Although most First Amendment rights are subject to some level of reasonable regulation and are balanced against other compelling state interests, outside the prison context, a core principle of First Amendment jurisprudence is rejection of the legitimacy of a “heckler’s veto.” This means that an individual’s right to engage in protected speech or religious worship cannot be restricted due to fear of a violent reaction by some private individuals. This principle, however, is not followed in a number of cases brought by gay and lesbian prisoners seeking access to publications or even the religious services of their choice.
The Metropolitan Community Church developed a special ministry for homosexuals many years ago. When the Michigan Department of Corrections barred MCC, while allowing other religious organizations into the prisons, MCC and state prisoners brought suit. In 1984, their claims were rejected, with the court accepting the CDRC’s position that it was necessary to prevent violence and internal disruption. The Court concluded that the ban “was not an unreasonable nor exaggerated response to the threat perceived by prison administrators. Thus, we will try not to second-guess prison administrators on matters relating to prison security, even when those matters affect the constitutional rights of inmates in a manner we find discomforting.”18 There have been no recent cases regarding access to religious services by gay and lesbian prisoners, but the U.S. Court of Appeals for the Sixth Circuit cited this case favorably as recently as 2005.19
Issues regarding receipt of information continue to arise for gay and lesbian prisoners. In 2005, the U.S. district court in Indiana upheld a prison policy that banned all publications containing “blatant homosexual materials.”20 An appeal was not taken. The prison had refused the plaintiffs’ requests to receive copies of The Advocate and Out magazines.
Prison officials justified the rule as promoting safety and security because those who received such materials, they said, would be perceived as gay and thus more likely to be targeted by other prisoners for abuse.21 The court found this to be within the prison authorities’ discretion.22 This follows litigation and an unreported consent decree,23 which led the Federal Bureau of Prisons to modify its regulations so the decision on banning a sexually explicit publication would turn on whether “its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity.”24
Thus, the relative success of those pushing for greater prisoner access to gay and lesbian publications ironically is entrenching a criteria that would be wholly unacceptable outside the prison context. In one sense, this is nothing new – as the court noted in upholding a ban on The Advocate, “When it is all said and done, there is a wide variety of constitutionally protected actions, processes and rights that exist in open society that may not be permissible in the prison setting.”25 But the heckler’s veto is a qualitatively different concept. Anywhere in society, maintenance of safety and order is a legitimate governmental interest, and the courts balance this against free speech rights. Thus, loud rallies in the middle of the night, marches that involve carrying dangerous weapons, and similar activities can be banned in many circumstances, notwithstanding the effect that constitutionally protected expressive activity may be curtailed. The heckler’s veto principle simply says that the fact that someone else might have a problem with the content of your constitutionally protected activity is not a factor that the court will take into account. In other words, the “threat of harm” has to be from a legitimate source. It is legitimate for neighborhood residents to object to amplified sound at three o-clock in the morning, and the government can prevent rallies on that basis. It is not legitimate to engage in violence because you disapprove of what someone is saying or reading, so the government may not curtail your speech or reading materials on that basis. But in these prison cases, the courts allow prison officials to consider threats of harm from illegitimate sources. Even more troubling is the fact that the court accepted at face value prison officials’ claim that receiving gay publications would put the prisoner at risk of harm and that prison officials were incapable of operating a prison safe enough for a prisoner to receive such publications.
The court cases above did not address the heckler’s veto concept; but in a different context, one court considered the heckler’s veto principle and applied it to reject prison officials’ claims. The case involved a ban on practicing the Wiccan religion in a federal prison in Illinois. In an interesting parallel with the ban on gay and lesbian publications, the BC in this case relied on its assessment that other prisoners may come to believe that the practitioners were engaging in dark magic against them, which could lead to violence.
Unlike past cases in which such a determination by prison officials that a threat existed was given great deference, the Court here held that “relying on other inmates’ reactions to a religious practice is a form of hecklers’ veto. The [Religious Freedom Restoration Act] does not allow governments to defeat claims so easily.”26
The refusal to consider the heckler’s veto principle in most cases reflects the judiciary’s general reluctance to impose otherwise universally accepted matters of principle upon prison officials’ discretion. There are other reasons to object to these policies, of course.
Gay and lesbian publications bring news and descriptions of political developments.
Since all prisoners have limited choices when looking for publications of that nature, there is no reason to believe that a prisoner reading The Advocate is necessarily homosexual. And if there is any risk of retaliation for reading the publication, the prisoner presumably would decline to be seen reading it. However, these considerations again would require the courts to question the authoritative declarations of the prison officials.
Finally, gay and lesbian prisoners continue to face manipulation of their housing at the whim of prison officials. In an interesting application of the equal protection clause, the Fifth Circuit ruled in 2004 that a gay former prisoner may sue prison officials for failure to protect him during “a horrific eighteen-month period of incarceration during which the defendant prison officials failed to protect him from prison gangs who repeatedly raped him and bought and sold him as a sexual slave.”27 The Court approved a 14th Amendment claim, on the plaintiff’s theory that the officials’ failure to protect him was motivated by his sexual orientation. In doing so, the Court maintained the lax standard of review for discrimination claims based on sexual orientation, but concluded that the prison officials violated even that standard: “Neither the Supreme Court nor this court has recognized sexual orientation as a suspect classification [or protected group]; nevertheless, a state violates the Equal Protection Clause if it disadvantages homosexuals for reasons lacking any rational relationship to legitimate governmental aims.”28 Since there can be no argument “that according homosexuals less protection than other inmates would advance any legitimate aim,” this type of discrimination on the basis of sexual orientation failed even the rational basis test.29
More recently, however, a gay prisoner in California brought suit after he was removed from protective custody and promptly assaulted with a knife. He alleged he was transferred to the general population as part of an effort to intimidate him into not complaining about an earlier body cavity search during which a prison guard said to him, “‘I know where you faggots keep your shit’ [and] then proceeded to thrust one or more of his fingers or thumb up Plaintiff’s anus to search for drugs.”30 In late 2007, the US District Court for the Eastern District of California dismissed the suit, stating that the allegations were insufficient to make out a cause of action under either 42 U.S.C. § 1985(2) or (3), which provide for a civil action in cases of conspiracies to obstruct justice or to deprive a person of federally protected rights.31
In the absence of any fear of violence, some gay prisoners object to being placed in segregated custody exclusively because of their sexual preference. They, too, find no help from the court system. An Illinois case from last December is illustrative. The plaintiff described himself as openly gay and previously housed in the general population in one institution without incident or cause for concern. But when he was transferred to a different prison, he was placed in protective custody, with no cellmate, and put under psychiatric care. He objected to these conditions and to being treated differently because of his sexual orientation. The court, however, concluded that he had no legal claim: “The complaint does not state an equal protection or due process claim. The Constitution does not protect against all arbitrary actions of prison officials, but only those that cause the plaintiff to suffer a deprivation of a constitutionally protected liberty, life or property interest. . . . Smith has no liberty or property interest to be assigned to any particular institution or to be housed with other inmates.”32 The decision thus underscores the judiciary’s failure to see sexual orientation discrimination as actionable in most circumstances. (Just two years before this decision, the Supreme Court held that segregating prisoners on the basis of race is subject to strict scrutiny;33 but here, the court rather summarily dismissed a case challenging segregation of prisoners on the basis of sexual orientation. This further illustrates the importance of California’s elevating sexual orientation discrimination to a suspect class and subject to strict scrutiny, as noted above.)
Again, the issue relates to unbridled discretion of the prison officials. In other contexts, scholars and courts readily identify unbridled discretion as an open invitation to prejudice – if officials do not need to explain themselves or justify their actions against a set of defined, legitimate criteria, then we have no way of telling when the true motive is bigotry. Whether or not protective custody for gay prisoners is good policy is subject to debate and it may well be that a more nuanced approach – identifying circumstances under which it variously should be mandatory, prohibited, or available – is what we need. However, when the courts refuse to see invidious discrimination or to probe for justifications even when faced with severe accusations of punitive use of officials’ discretion, then there is never an occasion for working through the various policy implications and options.
It is interesting to consider together the segregation policies and the prior section relating to gay and lesbian publications. On the one hand, prison officials say and the courts accept that being identified as gay because of your reading choices raises an unacceptable risk of violence. Courts reject prisoners’ efforts to challenge this premise. But when prisoners seek protective custody because of this risk, they are refused it. In a final inconsistency, the fact that some systems reject the claim that being identified as gay is enough to justify protective custody is not considered to undermine claims that reading gay publications will lead to violence.
A generation ago, prison activism and queer liberation were one and the same, ideologically, rhetorically, and practically. We often trace the modern gay movement to the Stonewall uprising on June 27-28, 1969, which began when a drag queen, who had been arrested in one of the routine police raids on gay bars, kicked an officer in the chest with his high-heeled boot, grabbed the keys from the disoriented officer, and uncuffed himself and the other drag queens in the paddy wagon – all leading to hours of violence from and against police officers, and a number of arrests.34 Today’s Pride marches around the country every June or early July bear little resemblance to this militancy, but the first march in commemoration of the Stonewall uprising, on June 28, 1970, made a point to stop in front of the Women’s House of Detention and articulate solidarity with the prisoners inside.35 In the following years, leading gay activists took up the call, “What’s outside is inside,”36 a significant gay newspaper ran a cover consisting of a mural depicting a prison entitled “We Are All Fugitives,”37 and gay publications devoted regular columns to prison advocacy and created projects designed to get news and analysis to people in jail. 38
More recently, however, it is rare to find someone who calls herself a queer liberationist and speaks of the need for attention to what is happening in the prisons. Instead, we see other interests at work in the sub-categories for advocacy in this area. The relatively new recognition of transgender rights poses interesting intellectual problems, so this receives attention from both scholars and advocates of various stripes looking for new and interesting fronts. This is a fine and understandable motivation, but it is also important to address the dearth of research and analysis of basic, persistent problems facing gay and lesbian prisoners.
1 The author is an assistant professor at The George Washington University, teaching in the University Writing Program on topics including “Law as a Force for Social Change” and “Progressive Movements: Rewriting History.” He is assistant editor of Sexual Orientation and the Law and the author of the 2008 edition of Hate Crimes Law. He is also an attorney and chair of the Amicus Curiae Committee of the National Lawyers Guild.
2 Rachel Wyatt, Note: Male Rape in U.S. Prisons: Are Conjugal Visits the Answer?, 37 Case W. Res. J. Int’l L. 579 (2006) (citing Bonnie E. Carlson & Neil Cervera, Inmates and Their Families: Conjugal Visits, Family Contact, and Family Functioning, 18 Crim. Just. & Behav. 318, 319 (1991)).
3 Cal. Dep’t. Of Corr., Inmate Visiting Guidelines (2003), http://www.cya.ca.gov/Visitors/docs/InmateVisitingGuidelines.pdf; Miss. Dep’t Of Corr., Visitation (2006), http://www.mdoc.state.ms.us; N.M. Dep’t. Of Corr., Inmate Visitations (2006), http://corrections.state.nm.us/policies/CD-100200.pdf; N.Y. Dep’t. Of Corr., How To Visit An Inmate (2005), http:www.nyc.gov/html/doc/html/visit.html; Wash. Dep’t. Of Corr., DOC Guide For Friends And Family Of Incarcerated Offenders (2005), http://www.doc.wa.gov/general/P184.pdf.
4 In re Marriage Cases, 2008 Cal. LEXIS 5247 (Cal. May 15, 2008).
5 Goodridge v. Dep’t of Health Services, 440 Mass. 309, 98 N.E.2d 941 (2003); Opinion of the Justices to the Senate, 440 Mass. 1201; 802 N.E.2d 565 (2004) (advisory opinion that civil unions in place of marriage would be unconstitutional).
6 See David Abel, “Same Sex Couples from N.M. Allowed to Marry in Mass. – Bay State Agency Clarifies Ruling,” Boston Globe, July 27, 2007, B3.
7 Martinez v. County of Monroe, 2008 NY Slip Op 909 (N.Y.App.4th, Feb. 1, 2008) (community college employee’s marriage to same-sex partner is entitled to recognition under state law and spouse may enjoy spousal health care benefits); Jeremy W. Peters, New York Backs Same-Sex Unions from Elsewhere, New York Times, A1, May 29, 2008 (reporting on gubernatorial directive that “all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.”)
8 Wash. Rev. Code § 26.60.01 et seq.
9 Miss. Code Ann. § 93-1-1, 3; Miss. Const. §263-A.
10 Cal. Fam. Code § 297.5(a).
11 Jesse McKinley, “Gay Inmates to be Granted Conjugal Visits in California,” New York Times, June 3, 2007.
12 In re Marriage Cases, 2008 Cal. LEXIS 5247 (Cal. May 15, 2008).
13 Jack Leonard, Voters Will Decide on Gay Marriage: An initiative to amend the state Constitution to prohibit such unions qualifies for the November ballot, Los Angeles Times, B1, June 3, 2008.
14 In re Marriage Cases, 2008 Cal. LEXIS 5247 at 199-209 (Cal. May 15, 2008).
15 Phil Couvrette, “Gay Inmates to Tie the Knot In Quebec Pen,” The Gazette (Montreal), Oct. 16, 2007.
16 Correctional Service of Canada, Standard Operating Practices 700-12, “Private Family Visits,” available on http://www.csc-scc.gc.ca/text/plcy/sop/700-12e-eng.shtml.
17 Associated Press, “Mexico City Prison System Allows First Gay Conjugal Visit,” International Herald Tribune, July 29, 2007.
18 Brown v. Johnson, 743 F.2d 408, 412 (6th Cir. 1984).
19 Espinoza v. Wilson, 814 F.2d 1093, 1097 (1987).
20 Willson v. Buss, 370 F. Supp. 2d 782, 787-88 (N.D. Ind. 2005).
22 Id. In 1987, the Sixth Circuit likewise deferred to the prison official’s assertion that distribution of LGBT publications would create a security risk. Espinoza v. Wilson, 814 F.2d 1093 (6th Cir. 1987).
23 National Gay Task Force v. Carlson, No. CA 27-0809 (D.D.C. 1980)
24 45 Fed. Reg. 75125 (Nov. 13, 1980) (interim rule, expressly in response to criticism), codified as amended at 28 C.F.R. §540.71(b)(7).
25 Willson v. Buss, 370 F. Supp. 2d 782, 786 (N.D. Ind. 2005).
26 O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir. 2003) (emphasis in
original). The only other case that appears to have even acknowledged the heckler’s veto principle is one in which the court dismissed it as having no application. See Roe v. Crawford, 514 F.3d 789, 796 (8th Cir. 2008).
27 Johnson v. Johnson, 385 F.3d 503, 512 (5th Cir. 2004).
28 Id. at 532 (brackets in original).
29 Id. at 533.
30 Gonzalez v. City of Fresno, 2007 U.S. Dist. LEXIS 60630, *4 (E.D. Cal. Aug. 7, 2007).
31 Id. at *13-14.
32 Smith v. Walker, 2007 U.S. Dist. LEXIS 94773 (C.D. Ill. Dec. 28, 2007).
33 Johnson v. California, 543 U.S. 499 (2005).
34 Martin Duberman, Stonewall (New York: Dutton, 1993), 197-98.
35 Regina Kunzel, “Lessons in Being Gay: Queer Encounters in Gay and Lesbian Prison Activism,” Radical History Review 100 (Winter 2008) at 11-12.
36 Id. at 14 (citing Mike Riegle, “Sexual Politics of ‘Crime’: Inside and Out,” Gay Community News, Dec. 10, 1983).
37 Id. at 13 (reprinting the cover of Gay Sunshine No. 14, 1972).
38 Id. at 14 (citing RFD and Gay Community News).NLG
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