[Eugene Volokh, 6:10 PM]
The only glitch with the new site is that the old archives haven't yet been copied over from blogspot. I hope to have this straightened out by early next week; hope it's not much of a problem until them. If you really need to access the old archives, they're here.

 
[Eugene Volokh, 6:01 PM]
Solicitor General's office proposes schedule in campaign finance case: Marty Lederman, who knows such things, writes that the SG today filed a motion proposing an expedited briefing schedule in the McCain-Feingold (BCRA) case:

The Solicitor General, on behalf of the Executive Branch appellees/cross-appellants Federal Election Commission, et al. (appellants in No. 02-1676), respectfully moves that the Court establish an expedited briefing schedule. Appellees/cross-appellants Senator John McCain, et al. (appellants in No. 02-1702) have authorized us to state that they join in this motion. We have been unable to determine whether appellants/cross-appellees Senator Mitch McConnell, et al. (appellants in No. 02-1674) and appellants/cross-appellees National Rifle Association, et al. (appellants in No. 02-1675) consent to or oppose this motion.

1. In order to facilitate expeditious resolution of this complicated and critically important case, this Court should note probable jurisdiction on June 5, 2003, in Mitch McConnell, United States Senator v. Federal Election Commission, No. 02-1674; National Rifle Association v. Federal Election Commission, No. 02-1675; Federal Election Commission v. Mitch McConnell, United States Senator, No. 02-1676; and John McCain, United States Senator v. Mitch McConnell, United States Senator, No. 02-1702. The Court should at that time order that the cases be consolidated and should issue one of the following schedules for briefing and argument.

a. If the Court wishes to hold oral argument in early September, we propose the following schedule: (1) The opening brief for each set of parties who were plaintiffs in the district court will be limited to 100 pages and will be filed and served by 3 p.m. on June 27, 2003. (2) The opening brief for each set of parties who were defendants in the district court will be limited to 100 pages and will be filed and served by 3 p.m. on July 18, 2003. (3) The reply brief for each set of plaintiffs will be limited to 40 pages and will be filed and served by 3 p.m. on August 5, 2003. (4) The reply brief for each set of defendants will be limited to 40 pages and will be filed and served by 3 p.m. on August 22, 2003. (5) Oral argument will be held on September 5 or 8, 2003.

b. If the Court wishes to hold oral argument during the week of September 29, 2003, we propose the following schedule: (1) The opening brief for each set of parties who were plaintiffs in the district court will be limited to 100 pages and will be filed and served by 3 p.m. on July 2, 2003. (2) The opening brief for each set of parties who were defendants in the district court will be limited to 100 pages and will be filed and served by 3 p.m. on July 29, 2003. (3) The reply brief for each set of plaintiffs will be limited to 40 pages and will be filed and served by 3 p.m. on August 22, 2003. (4) The reply brief for each set of defendants will be limited to 40 pages and will be filed and served by 3 p.m. on September 15, 2003. (5) Oral argument will be held during the week of September 29, 2003. If the Court wishes to hold argument on the first scheduled argument date (October 7, 2003) of the October 2003 Term, additional time could be allotted for the parties� reply briefs.

2. Given the number and complexity of the questions presented, and the length of the district court opinions, the brief lengths proposed above are reasonable. We note, moreover, that the briefing scheme we propose will not lead to a substantial increase, and may even result in a decrease, in the total volume of briefing. If each of the various appeals from the district court decision were briefed in accordance with Rules 25 and 33(g) of the Rules of this Court, the Executive Branch parties would be entitled to file a 50-page opening brief and a 20-page reply brief in connection with our own appeal (No. 02-1676). The Executive Branch parties would also be entitled to file a 50-page brief as appellees to defend the district court�s judgment to the extent that the court held various BCRA provisions to be constitutional. Indeed, under the usual briefing regime established by the Rules of this Court, the Executive Branch parties would appear to be entitled to file a separate 50-page brief as appellees with respect to each of the several appeals that are likely to be taken by the various groups of plaintiffs.

3. The schedule we propose would enable the parties to brief the questions presented in the most coherent manner possible and would thereby assist the Court in its consideration of the case. The district court upheld several provisions of BCRA and invalidated several others. In this Court, most of the parties to the case will likely be appellants as to some issues and appellees as to other questions. Some BCRA provisions that the district court held unconstitutional are very closely related to provisions that the court sustained. For example, the district court struck down the primary definition of the term �electioneering communication� in BCRA � 201, and the attendant ban on the use of corporate and union general treasury funds to finance �electioneering communications� as so defined, while upholding Section 201's backup definition of the same term (with the final clause of the backup definition severed). See 02-1676 J.S. 18-19.

If the Executive Branch parties are required to address such closely related issues in separate opening briefs -- e.g., to challenge the district court�s invalidation of Section 201's primary definition of �electioneering communication� in our opening brief as appellants, while defending the constitutionality of the backup definition in our opening brief as appellees -- our ability to provide a coherent and succinct explanation and defense of the statutory scheme as a whole is likely to be impaired. The plaintiffs would encounter comparable difficulties under such a briefing regime. All parties will likely be able to present their arguments in a more coherent and logical manner under a schedule in which the plaintiffs first set forth all their constitutional challenges to BCRA, and the defendants then set forth their defense of the statute as a whole. Such an approach would ensure that both plaintiffs and defendants can brief the various constitutional issues in the order that is most conducive to an understandable presentation (e.g., by discussing the various BCRA provisions in the order in which they appear in the statute), rather than having the structure of the briefs determined by whether a party is technically an appellant or an appellee with respect to a particular constitutional claim. In addition, because the three-judge court did not produce a unified opinion, an approach to briefing that encourages the parties to focus primarily on the statute rather than on the interaction of the three judges' opinions may prove more useful to this Court. Because most parties to this case (whether plaintiffs or defendants) are likely to be appellants with respect to a significant range of issues, it is essential that both plaintiffs and defendants retain the right to file reply briefs that they would possess if the appeals were briefed in the ordinary manner. In the alternative, this Court should order an appropriate briefing schedule for the various appeals from the district court�s decision, under which three rounds of briefing would be permitted for each appeal and all appellants would be entitled to file reply briefs, in accordance with the Court�s usual practice. Cf. pp. 3-4, supra. [Footnote: If the Court wishes to hold argument on September 5 or 8, 2003, an appropriate three-round briefing schedule would be as follows: (1) Appellants� briefs will be filed and served by 3 p.m. on July 8, 2003. (2) Appellees� briefs will be filed and served by 3 p.m. on August 4, 2003. (3) Appellants� reply briefs will be filed and served by 3 p.m. on August 22, 2003.]

4. In Buckley v. Valeo, 424 U.S. 1 (1976), this Court allotted a total of four hours for oral argument. The Executive Branch parties anticipate that this case will likewise require more than the standard allotment of argument time. Until it is clear how many parties will file jurisdictional statements, however, and whether the Court will note probable jurisdiction in all such cases and as to all issues raised by the jurisdictional statements, it is difficult to determine precisely how much additional argument time will be necessary. The Executive Branch parties expect to file a motion at a later date suggesting a proposed allotment of time for oral argument, after it is clear what parties and issues will be before the Court.

Respectfully submitted.

THEODORE B. OLSON
Solicitor General
Counsel of Record

 
[Eugene Volokh, 5:45 PM]
We've moved! We are now here at volokh.com -- we're still using blogger to post things, but we're just not hosted on blogspot any more. We hope that the result will be much quicker access for our readers.

     Please update your bookmarks and blogrolls accordingly, and please spread the word.

 
[Eugene Volokh, 3:56 PM]
More questionable behavior by New York Times Pulitzer-winning reporter Rick Bragg: Jack Shafer, in Slate's Pressbox, has a detailed story. The article starts with what I'd already heard, which seems relatively minor on its face -- Bragg put his name on a story datelined Apalachicola, Florida, even though he only visited the town briefly, and even though all the factual details were collected by an unpaid intern. Shafer, though, goes on to raise some much more serious points:

The Apalachicola story abounds with Braggian narrative detail, describing in its lede the meanderings of an oyster boat over the bay's oyster beds. Oysterman "Bobby Varnes prods the sandy bottom with a worn wooden pole, rhythmically stabbing at the soft sand as the boat idles along, waiting for the pole to strike a hard, brittle shell." White egrets "slip like paper airplanes just overhead" and mullet "belly-flop with a sharp clap into steel-gray water." . . .

It's unlikely (though possible) that such precise notes could have been written by Yoder, a December 2001 graduate of Auburn University, and transferred whole-cloth to Bragg. (If that were the case, Yoder would deserve the sole byline, if not Bragg's job.) More plausibly, the well-traveled Bragg conjured the Apalachicolan scenes and moods based on the tyro's notes and on his knowledge of the area. . . .

The Times has filed no corrections for the Apalachicola piece, but Bragg's unorthodox use of uncredited reporters may explain the number of corrections the Times has appended to other Bragg stories over the years. Every reporter makes mistakes, but Bragg's gargantuan goofs defy explanation -- often making you wonder if he even visited the scene of his own story. [Shafer gives examples.]

Such errors cry out for public pillory -- or at the very least careful policing by editors. Instead, Bragg continued to live his enchanted life at the Times, which he joined in 1994. . . .

Bragg's sin is not a simple matter of failing to give credit, as the editor's note implies. Bylines and datelines state unequivocally that the reporter was there, saw what he saw, and reported it faithfully, unless an "additional reporting" squib accompanies the story. In bylining a story that he did not witness, and writing vivid descriptions of things he did not see, Bragg comes perilously close to the techniques of Jayson Blair. . . .

Serious stuff.

 
[Eugene Volokh, 2:28 PM]
Supreme Court refuses to vacate lower court's stay of its decision in the McCain-Feingold election law case: Rick Hasen reports that Chief Justice Rehnquist issued the following order, in his capacity as circuit justice for the District of Columbia (emphasis added):

Applicants have filed an application to vacate the stay entered by the District Court. After consulting with other members of the Court, I shall deny the application to vacate the stay entered by the District Court. An act of Congress is presumed to be constitutional, see Bowen v. Kenrick, 483 U.S. 1304 (1987), and the Bipartisan Campaign Reform Act should remain in effect until the disposition of this case by the Supreme Court. The application to vacate the stay is denied, and the application for an injunction pending appeal, which was contingent on my vacating the District Court's stay, is thereby rendered moot.

For Rick's explanation of what this means, see here; Rick is a leading election law scholar.

 
[Eugene Volokh, 11:37 AM]
Lies, damned lies, and statistics: A colleague of mine, while praising Laumann et al., The Social Organization of Sexuality (1994), pointed out one table that reminds us that surveys are, at best, no more accurate than their respondents. Here are some key items from that table (3.1), which reports on what all respondents -- overwhelmingly straights, rather than gays -- say about their frequency of masturbation:

• Among men age 18-24, 41.2% say they don't masturbate at all.



• Among all men, 36.7% say they don't masturbate at all.



• Among black men, 60.3% say they don't masturbate at all.



• Among men with less than a high school education, 54.8% say they don't masturbate at all. (Come on, folks, do you really need classes for this? Was Joycelyn Elders right?)

Uh, yeah, right, whatever you say.

     So I think Laumann et al. and the GSS do provide the best data that I've found -- but one always have to acknowledge that even the best data is far from perfect. (Note that the masturbation information was gathered by asking the respondents to fill out questionnaires, and not through face-to-face questioning.)

 
[Eugene Volokh, 10:07 AM]
I'm skeptical: Time reports on changing wages; if you click on "Wage Rage" on the left-hand side of the screen (a page or two down), you see that, among other things, dietitian salaries rose from an average of $33,000 to $89,000 per year from 2001 to 2002, and law professor salaries rose from $89,000 to $117,000. (Now you know why someone e-mailed this to me; thanks to fellow lawprof Tom Berg for the pointer.)

     This sets my bunk-detection antennae all a-buzzing. It's extraordinarily unlikely that one will see these sorts of increases in one year, and I certainly know of no evidence that this is happening to law professors. The more likely explanation is that the 2001 data, the 2002 data, or both were just wrong, or (as reader Chase Exon points out) were gathered using different methods.

     I tried to quickly search the Bureau of Labor Statistics Web site for the source data -- the Bureau is one source that Time cited (though with no URL, of course) -- but couldn't find any good 2002 data. If anyone has more facts on this, I'd love to hear them. But for now, let's just say that I won't be taking Time's information to the bank.

 
[Eugene Volokh, 9:50 AM]
How errors spread through the media: Spinsanity reports how the Maureen Dowd out-of-context quote of Bush has spread through the media -- a sad commentary on how little fact-checking media organizations do.

 
[Eugene Volokh, 9:19 AM]
Reaching New York Times by e-mail: Slate's Eric Umansky reports:

Monday, this column complained about how difficult it is to contact NYT staffers, and how other papers do a better job of making themselves available to readers. As a number of [Today's Papers] readers have pointed out, there is actually a neat trick, mentioned deep in the NYT's Web site, to get in touch with Timesians. You can get a fairly comprehensive, though somewhat dated, list of staffers' e-mail addresses by sending a blank message to [email protected]. (Go ahead, try it.)

 
[Eugene Volokh, 9:12 AM]
Fashionable Dictionary: It's from Butterflies & Wheels ("Fighting Fashionable Nonsense" -- thanks to InstaPundit for the pointer), and I quite like it. Two entries I particularly enjoyed:

Bashing
Criticising something that I approve of.

Bigot
Someone who believes something I don't believe. See fanatic.

 
[Eugene Volokh, 8:56 AM]
Freedom of speech and intellectual property: The article is now available here, but note again that it's fairly technical, and addresses some relatively detailed issues, rather than the big picture questions (such as whether we should have intellectual property, whether Eldred was wrong, and so on).

     The disclaimer, by the way, reminds me of the legend about how Queen Victoria so liked Alice in Wonderland that she asked Lewis Carroll to send her a copy of his next work. Carroll, by profession a mathematician, dutifully sent her An Elementary Treatise on Determinants. I'm not suggesting that my blogging is remotely comparable to Carroll's work in quality -- but I do want to warn people that those who like the blog might not be that thrilled by the article.

 
[Eugene Volokh, 8:47 AM]
Testimony on gay sexual partner counts: Warning: Slightly graphic. An anonymous reader writes:

I'm a bisexual man, who in the 1970s and 80s regularly visited gay bathhouses. I've had thousands of partners. My average was several in a visit, and I visited an average of about three times per week. I don't have HIV probably because I only give and receive fellatio with men. Anyway, I know from my experiences and those of others that many gay and bi men have innumerable partners. This is mere anecdotal evidence, and of course, I know it won't suffice to prove it to others. But, I know.

He also follows up with this:

While I do agree that most gay or bi men are not as promiscuous as I was. I'd like to add that I do believe that there was a very significant reduction in promiscuity due to the advent of HIV. Moreover, as far as the whole issue of the number of sex partners gay or bi men have in contrast to heterosexual men, I have the bi perspective to share with you. When I wanted to sleep with women, I (usually) had to invest a fair amount of effort in charming them into lovemaking. (Dinner, movies, flowers, romance, etc.) When I wanted to receive or give fellatio, all I had to do was visit a bathhouse. At that time, on a Friday or Saturday night there would be, at any one time, more than two hundred men present, and I could usually find someone with whom there was mutual attraction within a short time. (Note: At most I wore a towel, and oftentimes just around my neck!) Moreover, there were very dark orgy rooms where men would have sex without seeing one another, as well as hot tubs, saunas, showers, and a swimming pool, as well as private rooms. (I never went for dark orgy rooms at all, I have to see whom I'm with.) By the way, I can't tell you the number of times I saw, (or ran into) allegedly straight men, (whom I recognized) many of whom were married or had girlfriends, not to mention the ones I didn't know who had we ding rings, etc. Some of them were there to be serviced, and consequently considered themselves to be totally straight.

Anyway, my whole point is that it was far, far easier for me, a tall, slim, good looking guy, to find male sex partners than female ones. The amazing ease with which a man may find sex with other men, undoubtedly contributes to the higher numbers of partners of gay and bi men. By the way, I usually slept with only three or four women per year, compared to three or four men in one night at a bathhouse. Even today, if one has AOL, for example, and one goes to the "member" chat rooms, one will see a vast number of "M4M" rooms. Within minutes upon entering a chat room one may instant message with other men who are only interested in exchanging photos and finding a quick encounter with a good looking well-built guy. I'm keenly aware that all of this is anecdotal but having spent years having sex with thousands of men I think I have some understanding and insight into this matter. Today, I am very monogamous with a delightful and lovely and "satifsfied" lady who knows nothing of my past. Age has somewhat dampened my ardour, and HIV (and other stds) has made me reluctant to go with men again, despite the fact that oral sex is a relatively low risk activity. In Plato's Republic when (I think it was) Cephalus was asked, what's it like to be an old man, he replied, "I'm finally free from that tyrant, Sex!"

This is a good occasion to repeat what I'd said before: There does seem to be a substantial minority of gay men who do have a huge number of sexual partners; the GSS 1992-2001 sample, for instance, reports that about 15% of gay respondents reported having either 100 or more partners or just said "many" or "lots." This estimate is of course highly imprecise, because of the small sample; but it's consistent with the fact that the self-selected studies did find a large number of hyper-promiscuous gays. When a self-selected study finds such numbers, it may well be that the respondents weren't representative of the median person -- but it would be quite unlikely for most of them to be complete outliers, nd it seems more likely that they do represent a significant minority.

     Also, it does make sense that it would be much easier for men who are interested in casual sex -- as many men, gay or straight, sometimes or even often are -- to find male partners than female ones. My anonymous correspondent expresses the matter well.

     Nonetheless, as I mentioned yesterday, there is a big political difference (whether or not there should be) between claims that (1) most gay men are hyper-promiscuous and (2) a significant minority is hyper-promiscuous, and most have only a moderate number of sexual partners more than straight men. And there is also of course a big factual difference between these claims. As best I can tell at this point, claim 1 is not borne out by the evidence, while claim 2 is.

 
[Eugene Volokh, 10:01 PM]
A new Reason blog: This one is from the Reason Public Policy Institute side of the operation rather than Reason Magazine side, so it's a bit more wonky, focusing on privatization issues. (RPPI is big on privatization advocacy and consulting.) Check it out here; it's called "Out of Control."

 
[Eugene Volokh, 4:42 PM]
The National Association of Scholars is now blogging. The NAS is mostly a group for moderate, conservative, and libertarian academics, but it also contains quite a few liberals who are disaffected with some of the academic left. Worth checking out.

 
[Eugene Volokh, 4:40 PM]
The real question: Reader Colin Fraizer writes:

I think you�re under-emphasizing the most important part of this issue: what can we straights do to boost our average? When I was a single man (I�m now happily married and monogamous), I certainly did all I could to boost our numbers, but clearly we�re having a hard time competing with our gay friends.

Indeed.

 
[Eugene Volokh, 4:31 PM]
Monkey off my back: Just finished a rough, but decent, draft of the piece that I promised for a Houston Law Review intellectual property symposium -- "Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, Saderup, and Bartnicki." Boy, am I glad to be done with that, at least for now.

     By the way, if anyone is interested in reading it, it's available here; note, though, that it's pretty technical, and probably just of interest to those who are legally trained.

 
[Eugene Volokh, 3:24 PM]
The myth of the median hyper-promiscuous gay male: The data on this is getting more and more interesting for me; I'm glad I got tempted into investigating this. Here's my tentative judgment: (1) Quite a few sources claim that the median American gay male is hyper-promiscuous, with a median of hundreds of sexual partners in his lifetime. (2) This appears to be a myth.

     Now it does appear that a significant minority of American gay males do have lots of sexual partners. Moreover, the median American gay male does have somewhat more sexual partners than the median American straight male (likely 10-20 lifetime partners for gays as opposed to 5-10 for straights; my earlier post giving medians of 40 and 16 respectively, was mistaken, because it inadvertently reported averages rather than median).

     But the claim that the median American gay male (not just a minority of gays) is hyper-promiscuous (not just a bit more promiscuous than heterosexuals) appears to be false -- and politically quite important. Claims that "Male homosexuals have . . ." or "Most male homosexuals have . . ." or "The median male homosexual has . . ." are much more politically effective at justifying different treatment for homosexuals than claims that "Some male homosexuals . . . ." Many voters are open to the idea of treating a whole group based on what most of its members do; fewer are open to treating the group based on what a minority of the group does. Also, statements about mild differences in median sexual partners aren't terribly striking, but claims that, say, the median gay man has over 250 sexual partners in a lifetime makes gays seem in a way freakish and deviant, and makes it much harder for people to see gay sexual relationships as emotionally comparable to straight sexual relationships. (I'm making a descriptive claim here about how people are likely to react to promiscuity, not a claim about how people should react to it.)

     There are two reasons why I think the median gay male hyper-promiscuity claim is mythical.

     1. The best data that I've seen -- data drawn from random samples of the population, the most reliable (albeit not perfectly reliable) polling mechanism -- shows that gay males do not have vastly more sexual partners than straight males. The study I reported on when I first blogged about this reported that gay and bisexual males (defined as having had at least one same-sex relationship in the last 5 years) have an average (not a median) of 26.6+/-11.5 lifetime sexual partners compared to an average of 16.9+/-3 for straights.

     Likewise, the GSS dataset that I blogged about below yields similar estimates on the averages, but reports that the median for gay and bisexual men is about 10, compared to a median for straight men of about 6.

     2. All the data I've seen supporting the hyper-promiscuous median gay male claim has been junk science. It often refers to real studies -- but to studies of groups that we have no reason to think are representative of the median gay male. The Wells-Petry Exclusion book, for instance, mostly relies on studies of gay males who are being treated for sexually transmitted diseases; there's lots of reason to think that those people have many more sexual partners than the median gay male. The Masters, Johnson & Kolodny college textbook relies on a study that (1) was limited to the San Francisco Bay area, and (2) involved a self-selected sample, not a randomly chosen sample; Schmidt's Straight & Narrow, a book that criticizes homosexuality from a Christian perspective likewise heavily relies on this study, as well as on another survey (Jay & Young) of self-selected respondents. (Schmidt also cites other articles, which I'm getting the library to pull -- if I find that some of the data there is of higher quality, I'll certainly report it.)

     I actually think this would make an interesting story for mainstream journalists to cover (if they haven't already). I suspect that many thoughtful, generally knowledgeable people believe the myth; I know that I had, based on some stuff that I recall vaguely hearing from the mainstream media in the 1980s. The myth has been spread both by people that oppose homosexuality, and by people who seem to have no such agenda (see Masters, Johnson & Kolodny). As I argue above, the myth is, I think, politically quite salient. But it does appear to be a myth.

 
[Eugene Volokh, 3:07 PM]
Straight & Narrow: A fellow academic whose work I generally much admire also e-mailed me about the hyper-promiscious median gay male theory, and pointed me both to Bell & Weinberg's Homosexualities and a book by Thomas Schmidt called Straight & Narrow (1995). The Schmidt book is a criticism of homosexuality from an evangelical Christian perspective, and chapter 6 purports to be a summary of a wide range of statistical evidence.

     The evidence that I checked, though, seems to be highly unsound. For instance, here's its core claim about the number of sexual partners among homosexuals:

We can quantify the phenomenon of homosexual promiscuity, especially among males, more specifically. The numbers are astounding. Bell and Weinberg found that 74 percent of male homosexuals reported having more than one hundred partners during their lifetime, 41 percent more than five hundred partners, 28 percent more than one thousand partners. . . .

Note that the claim is about homosexuals generally -- "homosexual promiscuity," "found that 74 percent of male homosexuals," and such.

     What Schmidt doesn't mentioned is that, as I quoted in my earlier post, Bell & Weinberg specifically said:

It should be pointed out that reaching any consensus about the exact number of homosexual men or women exhibiting this or that characteristic is not an aim of the present study. The nonrepresentative nature of other investigators' samples as well as of our own precludes any generalization about the incidence of a particular phenomenon even to persons living in the locale where the interviews were conducted, much less homosexuals in general.

And why do Bell & Weinberg warn precisely against what Schmidt is doing -- "generaliz[ing] about the incidence of a particular phenomenon . . . [among] homosexuals in general"? Because Bell & Weinberg was (1) a survey only of gays living in the San Francisco Bay area, and (2) wasn't even a random sample, but was rather a self-selected sample, drawn from those gays who heard about the study through various means -- "such as public advertising, bars, personal contacts, gay baths, organizations, mailing lists, and public places" -- and who then chose to respond. Statisticians routinely warn against the huge unreliability of such self-selected samples.

     This isn't mentioned, however, in Schmidt's discussion of Bell & Weinberg. Likewise, the one other study that I have so far checked of those Schmidt relies on (I plan to ask the library for the other studies), a "large survey conducted by K. Jay and A. Young," was likewise a self-selected survey, though a national one. Schmidt claims that

Another large survey conducted by K. Jay and A. Young found that only 7 percent of male homosexuals had been in a relationship that had lasted more than ten years; 38 percent had never been in a relationship that lasted more than one year; 55 percent had never been in a relationship that lasted more than two years. (p. 107)

But the first page of the Kay & Young chapter from Schmidt draws his data says "As with all the statistics, it is difficult to know if the subsample suggests an accurate figure for the gay male population generally." You bet it is, because the sample is self-selected -- but Schmidt doesn't seem to be detained by this, doesn't acknowledge the survey's limitations, and says that the survey "found" information about "male homosexuals," with no qualifiers or caveats. (By way of comparison, the Hite Report on Female Sexuality reported that over 70% of women who were married 5 or more years had been unfaithful; but to my knowledge this number is now rejected, precisely because the Hite Report involved a self-selected, rather than random, sample of respondents.)

     So, as usual, don't believe everything you read -- especially on this subject, apparently.

 
[Eugene Volokh, 2:45 PM]
Sexual partner mismatches: A reader writes:

I've always wondered: What accounts for the difference in the median number of sexual partners for heterosexual men vs. heterosexual women? I'm even more confused about the difference in averages.

     That, I'm told is one of the great puzzles in this field. The differences in median are mathematically explainable, if you assume that many women have very few sexual partners but a substantial minority has many more.

     To give a highly stylized example, imagine a sample of 10 men and 10 women, in which six of the women have only 2 partners each, but the remaining four have sex with each of the 10 men. The result might then be that each man sleeps with approximately one of the six women, and with each of the four women. Thus, the median sexual partners for the men will be 5, while the median for the women is 2.

     But this can't explain the averages, because in theory the average numbers should be equal. For every woman a man sleeps with, there's a man a woman sleeps with. In the example above, the women sleep with 6 x 2 + 4 x 10 = 52 men, for an average of 5; and the men sleep with 10 x 1 + 2 x 2 + 10 x 4 = 52 women, for an average of 5. Why then do we see the huge differences in what the surveys report?

     I've heard two main explanations. One is that some women (e.g., prostitutes) have sex with very many partners, and they're also the ones who are less likely to respond to surveys. So they're undersampled, and their experience doesn't get revealed on the surveys.

     The second, which I suspect accounts for more of the discrepancy, is that many respondents deliberately lie, subconsciously misstate, or interpret ambiguous terms (such as "sexual partner," which some might see as covering only genital intercourse and others might see as including oral intercourse and some other practices) in a way that fits their preferences: Men overreport their number of sexual partners, women underreport, or both. I'm pretty sure that this is a big part of the problem, just based on my own unscientific sense of how men and women react to these sorts of questions.

     Naturally, this might cast some doubt on all the results of the studies -- maybe the numbers are vastly different from what the surveys show, because so many people are lying. Still, this is the best data we have, and the assumption is that the results are at least generally in the right ballpark, even taking into account some pretty pervasive lying by people.

 
[Eugene Volokh, 1:54 PM]
More about sexual partner counts: Joe Doherty here at the Empirical Research Group of UCLA Law School has been good enough to analyze the General Social Survey dataset (1991-2002) for me on this issue. The GSS asks randomly selected respondents for their sex, the sex of their sex partners over the last five years (exclusively male, both male and female, or exclusively female), the number of female sex partners since 18, and the number of male sex partners since 18. (We started the data with 1991, because the "sex of sex partners over the last five years" question was only asked starting then.) Here is the data that he got; note that there were only 150 homosexual male respondents, 67 bisexual male respondents, 116 bisexual female respondents, and 110 homosexual female respondents, so the data for those groups is necessarily subject to some degree of error. (I ignore the female sexual partners of gay males and male sexual partners of lesbian females, the averages for both are about 2, presumably reflecting earlier heterosexual experimentation, but the medians are 0.)

	Average sexual partners since 18	Median sexual partners since 18
Homosexual male	37	10
Bisexual male	23 (13 female, 10 male)	11 (9 female, 2 male)
Heterosexual male	15	6
Homosexual female	8	4
Bisexual female	16 (5 female, 11 male)	7 (2 female, 5 male)
Heterosexual female	5	3

Note that the averages are consistent with the dataset that I reported on earlier, from The Social Organization of Sexuality; that book, though, didn't give medians (i.e., the levels at which 50% of the relevant population report lower or equal numbers and 50% higher or equal), and the only reliable data that I've seen on medians is from the GSS.

 
[Eugene Volokh, 11:03 AM]
National Jewish Population Survey: A couple of readers e-mailed me to suggest that the NJPS, which I cited yesterday for the breakdown of the ages of American Jews compared to all Americans, is flawed; see this article for a sample. I can't tell whether it's flawed enough that we should just ignore its results -- possible, but naturally there's a hot debate about it. Nonetheless, it's the best data that I've seen on the age question; if anyone has better data, please point me to it.

 
[Eugene Volokh, 9:12 PM]
"The Blair Pitch Project": OK, I think that's one of the rare headline puns that was actually worth it. And it's over an interesting article, too, about Jayson Blair's book / movie plans. Here's one excerpt that I found particularly interesting:

In particular, Mr. Blair comments frankly in the proposal on Jonathan Landman, the editor who oversaw the metropolitan desk where Mr. Blair was assigned. Of the now-famous e-mail that Mr. Landman sent to colleagues saying that Mr. Blair had to be stopped from reporting for The Times, Mr. Blair writes in his proposal that "it was actually in the context of whether I should be writing during a two-week break I took for drug and alcohol rehabilitation. Months later he would send me an e-mail offering his unqualified support for my improvements."

Mr. Blair goes on to write that while Mr. Landman "is no hero in this story," he calls him "an honorable and honest man." However, he asserts that Mr. Landman�s "neo-conservative views have been some of the most difficult things for any minority reporter at the Times to handle."

Tell us more about this phenomenon of minority reporters at the Times having trouble handling "neo-conservative views." I would have thought that reporters would be good at handling all sorts of views (yes, even neo-conservative ones), at least if they wanted to be good at being objective, thoughtful, and competent journalists. In fact, I would have thought that journalism schools would train reporters of all races to handle all sorts of views, and that the Times would insist on that from its reporters. It will be interesting to see just what particular view Blair -- or, apparently, "any minority reporter" -- found so difficult to handle.

 
[Eugene Volokh, 9:05 PM]
Another tip for speaking more slowly: A reader contributes one word: "Ganja." Good plan!

 
[Eugene Volokh, 5:58 PM]
Google facts: I am happy to report that a search for "reliable love charms" in google (with the quotes included) yields zero hits. (And, no, I wasn't looking for something to use myself -- I'm a happily married man.)

UPDATE: Michelle Dulak points out what should have been obvious to me:

True right now -- but in another day or two, Google will send all searchers for "reliable love charms" straight to you, you know.

And, boy, will they be disappointed.

 
[Eugene Volokh, 5:22 PM]
More on the Yale Law School bombing: MSNBC reports that "law students had filed out of the classroom [where the explosion occurred] after finishing final exams only 10 minutes before the bomb exploded, at about 4:50 p.m." Thanks to How Appealing for the pointer.

UPDATE: A Yale Law student reports to How Appealing that this account was mistaken -- "there was not an exam being administered in Room 120 (where the explosion was) immediately prior to the incident; rather, there was an exam there this morning, but it ended much earlier in the day."

 
[Eugene Volokh, 5:19 PM]
Everything old is new again (and everything new is old): As I mentioned in my criticism of the Slate juror punishment/reward proposal, English law used to provide for punishing jurors who supposedly reached the "wrong" conclusions; the reversal of this policy, in Bushell's Case, was thought to be a milestone in English liberty. Gary O'Connor, in the Statutory Construction Zone has some more details on the early English law, courtesy of Sir William Blackstone (the leading English legal commentator of the 18th century) -- very interesting stuff, and much worth reading. An excerpt:

[T]he WRIT of attaint . . . lieth to enquire whether a jury of twelve men gave a false verdict. The attaint jury had to have 24 members for the law wills not that the oath of one jury of twelve men should be attainted or set aside by an equal number, nor by less indeed than double the former. The person bringing the attaint was limited to the evidence that was given to the original jury, because the law judged it the highest absurdity to produce any subsequent proof upon such trial, and to condemn the prior jurisdiction for not believing evidence which they never knew.

If this 24-member jury found that the verdict was false, �very terrible was the judgment which the common law inflicted upon them . . The judgment was, 1. That they should lose their liberam legem, and become for ever infamous. 2. That they should forfeit all their goods and chattels. 3. That their lands and tenements should be seised into the king's hands. 4. That their wives and children should be thrown down. 6. That their trees should be rooted up. 7. That their meadows should be ploughed. 8. That their bodies should be cast into gaol. 9. That the party should be restored to all that he lost by reason of the unjust verdict.�

There's more.

 
[Eugene Volokh, 4:32 PM]
Yale explosion was apparently in a classroom, not a mail room: So Reuters reports, though it says that "Early reports indicated the blast ripped through a mail room at the law school." This is significant, because it suggests a different delivery mechanism -- a person carrying in a package that he may well have known contains a bomb, rather than a bomb being mailed to the school.

 
[Eugene Volokh, 2:31 PM]
Explosion at the Yale Law School: The Associated Press reports:

An explosion was reported in a mail room at the Yale University law school, a city spokesman said. . . .

The incident came as the nation was on elevated alert for possible terrorist attacks and several hours after President Bush -- a Yale alumnus -- visited the state to speak at the U.S. Coast Guard Academy graduation ceremony in New London.

I much hope that all my friends, and all our readers' friends, at Yale Law are OK.

UPDATE: AP now reports that "No injuries were reported" -- I hope that indeed no-one was injured.

 
[Eugene Volokh, 1:15 PM]
Does your law firm want a goodwill-building gift for summer associates? Three guesses as to what that might be . . . yes, you got it in one: The newly released Academic Legal Writing, written by an especially shameless contributor to this blog. I think the book sends a good message -- "We're a firm that's interested in the intellectual side of law as well as the practical one, and we want to help you succeed as a law student and as a lawyer." And it sends the message quite inexpensively: The book sells for $18.95 a copy, but you can get a 20% discount for orders of more than 10, and if you order more than 50 you can get a discount and also have Foundation personalize it for free with some cover stickers ("Compliments of Marshall, Story & Cooley"). One big firm is actually already buying a whole bunch of copies for its summer associates.

     Or, another option: If your firm regularly competes to hire students who are members of some law journals (either at a national law school or at a local one), you might buy copies for all the law journals' staff members. This may make them feel better about the firm when interview season starts this Fall, and can provide a good ice-breaking topic of discussion when you're doing the on-campus interviews. Fifty books (the amount needed for the personalization) with the 20% discount ends up being just a bit over $750 -- pretty cheap as recruiting tools go.

     If you're interested in either option, please e-mail me at [email protected], and I'll get you in touch with the Foundation people. (You can also e-mail [email protected] or fax your request to Alan at 212-367-6799, but if you e-mail me then I'll try to make extra sure that everything gets properly taken care of.) By the way, InstaPundit was kind enough to write a very nice review of the book; for the jacket blurbs, a copy of the Table of Contents, Judge Kozinski's Foreword, and part of the first chapter, go to this site.

     By the way, you might ask: Why is this guy being so shameless? Well, it isn't the money -- given the relatively low cover price, I'm not going to make much from this book. But it took me a lot of time and effort to write this book, and I think it has some helpful ideas in it. If I was willing to work on getting the book written, I figure I need to work on getting it read, too.

 
[Eugene Volokh, 12:50 PM]
We give you the context for Slate's Bushisms, because Slate doesn't: Today's Bushism:

"First, let me make it very clear, poor people aren't necessarily killers. Just because you happen to be not rich doesn't mean you're willing to kill." -- Washington, D.C., May 19, 2003

OK, think about this one -- whom do you think Bush is talking about here? When you've figured that out, read the context and see if it matches what you guessed:

PRESIDENT BUSH: Non-NATO status, yes. That puts the Philippines right up there with Australia, Egypt, Israel. These are major non-NATO allies, which means it will be easier for us to answer requests on military equipment; to provide parts and equipment to make sure that the defense capabilities of the Philippine military are modern, and the choppers fly, choppers are maintained, choppers move; when the President orders up a strike, it happens quickly. All this does is facilitate the capacity to interact with each other on a better basis, on a priority basis.

Secondly, the other thing I talked about was a comprehensive review of -- and that just means our military is going to be involved with your military, the Philippine military, in such a way as to determine needs and assess whether or not we've got the capacity to help meet those needs.

Q: And the poverty problem?

PRESIDENT BUSH: And the poverty problem -- listen, this nation is committed to dealing with poverty. First, let me make it very clear,
poor people aren't necessarily killers. Just because you happen to be not rich doesn't mean you're willing to kill. And so it's important to understand -- people are susceptible to the requirement by these extremists, but I refuse to put a -- put killers into a demographic
category based upon income. After all, a lot of the top al Qaeda people were comfortable middle-class citizens. And so one of the
things you've got to do is to make sure we distinguish between hate and poverty.

Secondly, trade is an important aspect of helping to create the conditions necessary for people to rise out of poverty. . . .

Sounds a bit different with some context, no? Sounds like Bush was exasperated by the repeated claims that poverty breeds terrorism, and pointed out, with some exaggeration, that he thinks otherwise. Do you think that Slate readers who had no idea about the context would have gathered that?

 
[Eugene Volokh, 12:33 PM]
Competitive Enterprise Institute mouse-pad: Just got my spanking new Competitive Enterprise Institute "Politically Correct Periodic Table of the Elements" mouse-pad (sample here) -- looks very cool.

 
[Eugene Volokh, 10:51 AM]
Jews vs. non-Jews by age: In response to my skepticism about the exit poll in which 4% of the respondents were Jews, some readers e-mailed me that Jews were much older than the population. (David Bernstein noted this on his blog.) I was skeptical that this was so, especially in numbers that were enough to make them 4% of voters even though they're just 2% of the population. (I realize that there may be other reasons why Jews may vote more than non-Jews, but I don't think they're enough to account for the disparity, either.) So I actually looked up some numbers, from the United Jewish Communities' National Jewish Population Survey (2000-01) and the 2000 census. Here are the results, with some rounding and interpolation:

Age range	% of American Jews who are in this range	% of all Americans who are in this range
75+	9	6
65-74	10	7
55-64	10	8
45-54	17	13
35-44	13	16
25-34	13	14
18-24	10	10
0-17	19	26

There are differences (though note that the survey reached 4500 respondents, so the differences for some of the age groups are within the margin of error), but not as large as some suggested, and not large enough to explain why 4% of the exit poll respondents were Jews while Jews are only about 2% of the adult population.

 
[Eugene Volokh, 10:28 AM]
Speaking more slowly: Thanks to everyone for all the suggestions; so far, there's one that I suspect is likely to work best for me, and that I'll try this Fall. Several people recommended it, but here's one message in particular, from reader Jay Gilbert, which also echoes my skepticism about more radical reeducation plans:

I am a professional announcer, and offer you a simple way to solve the problem of speaking too fast for your students.

Actually learning to make your words come out more slowly would probably require Clockwork-Orange behavior modification. �Don't address the problem this way. �

Instead, just concentrate on the spaces between thoughts. � Add a beat or two between sentences or phrases. �When you inhale, just hold your breath a second longer. �That shouldn't be a hard habit to develop.

Will definitely try this out.

 
[Eugene Volokh, 10:16 AM]
My favorite recommendation for how to speak more slowly: "Be born in the South." Thanks, Troy, that really helps.

     I also liked another suggestion (by Ross) -- "move to Texas" -- but then I realized that it would be completely counterproductive, at least for the first years. If I talk fast for Angelenos, imagine how annoyed the Texans will be.

 
[Eugene Volokh, 8:33 AM]
CNN assault weapons story and the police firing weapons into the ground? I haven't been following the CNN assault weapons scandal as closely as I should have been, so maybe this is old hat; but it seems that the Broward (Florida) Sheriff's office might be at fault, too. Here's a Miami Herald article:

Gun-rights advocates are miffed at Broward Sheriff Ken Jenne and CNN over a recent TV segment that National Rifle Association officials characterize as a virtual political ad for extending a federal ban on some semi-automatic weapons.

Officials of both CNN and the sheriff's office contend they never intended to mislead viewers and say any flaws in the broadcast were accidental.

CNN has since broadcast follow-up reports that satisfied both sides as fair and balanced. . . .

At issue is a 1994 ban on 19 types of semi-automatic firearms, a measure that will expire just before the presidential election unless Congress acts to extend it. Gun-control supporters want it extended and even broadened. Gun-rights supporters say the ban is misguided, misunderstood and pointless.

BSO and CNN stepped into the fray Thursday with footage of an on-air demonstration purportedly designed to show the difference between banned weapons and their legal counterparts.

When a BSO employee fired a banned weapon, the camera showed bullets ripping through a cinderblock target. When a legal semi-automatic weapon was fired, the camera showed another cinderblock seemingly unharmed.

In fact, the bullets from the legal gun never hit the cinderblock. CNN spokesman Matthew Furman said the camera operator didn't realize the sheriff's employee had switched targets and was firing into the ground.

''When we learned that the demonstration was less than clear, we told our viewers that,'' Furman said.

The comparison seemed to imply the banned weapon packed more punch than its legal counterpart. In fact, the two are the same in terms of firepower. . . .

Sheriff's spokesman Jim Leljedal said Jenne favors extending the 1994 ban but never meant to misinform the CNN audience by participating in the Thursday segment.

''There was never any intent to mislead,'' Leljedal said. "They wanted to talk about it, so we did, and on very short notice we got some guns out and we did some demonstrations for them.'' . . .

''The idea is that these weapons . . . will penetrate a bulletproof vest, they will go through a concrete block. And that's what our homes are made of,'' Leljedal said.

NRA leaders say the 19 banned weapons are basically identical to other, equally powerful weapons that are legal. They contend gun-control lobbyists and the news media have blurred the debate by suggesting the ban covers a broader range of weapons. . . .

So the question: If the sheriff's office "never intend[ed] to mislead viewers," then why was "the sheriff's employee . . . firing into the ground"?

 
[Eugene Volokh, 8:19 AM]
More on gays and politics: Huh -- I would not have expected this: Apparently the Voter News Service exit poll surveyed over 13,000 people, which would indeed yield decent numbers of gay respondents (subject to the inherent problems that exit polls have), enough for margins of error of +/-5% or so. According to the poll, Bush drew 25% among gays, Gore 70%, and Nader 4%. So I take back my quibble about David Horowitz's column; his 30% estimate (which I assume he took from some other poll) seems to be within the margin of error from this one, again with the usual caveats about the limitations of exit polls.

     This also gives us a sense of the vote breakdown among other small groups, such as Jews (19% Bush, 79% Gore, 1% Nader); but note that the fraction of respondents who say they're Jewish (4%) shows the limitations of these polls: Jews are only about 2% of the adult population, and while it's possible that they vote at higher rates than the average, I doubt that this is enough to make them 4% of the electorate. I suspect that our fondness for sharing our opinions (it's no wonder that so many law professors are Jewish!) might lead us to respond to polls at higher rates, which is an example of how exit poll results (and poll results generally) can get thrown off.

     Hispanics voted 35% Bush, 62% Gore, 2% Nader; Asians voted 41% Bush, 55% Gore, 3% Nader.

     One other item: People who had a gun in the households (48% of all respondents) voted 61-36 for Bush; people who didn't voted 58-39 for Gore. (Of course, note that household gun ownership may correllate with various other factors that might themselves push people in one or the other direction.)

     Thanks to my friend and fellow Kozinski clerk Josh Goldfoot for the pointer.

 
[Eugene Volokh, 8:05 AM]
Gays and politics: My friend and fellow lawprof (and director of the Northwestern Demography of Diversity Project) Jim Lindgren writes:

Perhaps Sullivan's 30% of gays voting Republican was referring to exit polling.

In 1998, 2000, and 2002 the General Social Survey (which was conducted in the Spring of those years) reported the political affiliation of a total of 265 gays, lesbians and bisexuals (126 males and 139 females), with sexuality defined by the gender of reported sex partners in the last five years the variable SEXSEX5). The breakdown for the gay and bi males is 23.5% Republican and leaning Republican, 57.4% Democrats and leaning Democratic. The breakdown for the lesbian and bi females is 22.0% Republican and leaning Republican and 48.5% Democrats and leaning Democratic. The rest are independents or other party adherents.

Combining male and female gays, lesbians and bisexuals, the percentage Republican or leaning Republican is 22.7% and the percentage Democrats or leaning Democratic is 52.6%. The margin of error depending on sampling assumptions ranges from about 6 to 8%.

In actual voting, some of the independents would vote Republican, more would probably vote Democratic, which would probably bring the proportion voting Republican to the general vicinity of Sullivan's 30%, though perhaps Sullivan or others have actual exit polling data.

The GSS is a huge survey, so it makes sense that it could get decent data on this, though note that even the GSS yields a relatively high margin of error; but I would highly doubt the reports of any exit polls, which tend to have many fewer respondents, and thus very few gay respondents.

     Also, I like any survey which contains a variable named SEXSEX5.

 
[Eugene Volokh, 7:55 AM]
A modest proposal: Amy Lamboley at Crescat Sententia does the Slate jury reform proposal one better:

Much as I like Steven Landsburg's article over at Slate about incentives for juries to get their verdicts right, he's missed the American group that is most in need of incentives -- voters. That's right. Besides fining jurors who get it wrong, we should fine voters who get it wrong. . . .

The argument is surprisingly plausible, once you accept the notion that it's a good idea for the government to give the right "incentives" by threatening to punish jurors (or voters) for decisions that the government finds "wrong." Check out the details.

 
[Eugene Volokh, 8:46 PM]
David Horowitz on gays and the Republican Party: An excellent piece (thanks to Andrew Sullivan for the pointer). Here's a key quote:

[T]he very term "homosexual agenda," is an expression of intolerance as well. Since when do all homosexuals think alike? In fact, thirty percent of the gay population voted Republican in the last presidential election. This is a greater percentage than blacks, Hispanics or Jews. Were these homosexuals simply deluded into thinking that George Bush shared their agendas? Or do they perhaps have agendas that are as complex, diverse and separable from their sexuality as women, gun owners or Christians, for that matter?

In your confusion on these matters, you have fallen into the trap set for you by your enemies on the left. It is the left that insists its radical agendas are the agendas of blacks and women and gays. Are you ready to make this concession -- that the left speaks for these groups, for minorities and "the oppressed?" Isn�t it the heart of the conservative argument that liberalism (or, as I would call it, leftism) is bad doctrine for all humanity, not just white Christian males? . . .

The piece is at times a bit strident, but much worth considering. (Quibble: I would be very surprised if there were really reliable data that 30% of gays voted Republican in 2000; it's just extremely hard to get good information on 2-3% of the population. But the basic point still holds.)

UPDATE: Ramesh Ponnuru has a somewhat different perspective on this.

 
[Eugene Volokh, 5:59 PM]
Speaking more s-l-o-o-o-o-o-w-l-y: Every year, lots of student evaluations say I talk too fast. This, I think, is a fair criticism -- I do talk fast, and this may make it harder for students to follow me and especially to take notes.

     I'd like to correct this to some extent (though of course I don't want to go too far in the opposite direction), but I don't know how. I've tried to tell people to raise their hands if I'm talking too fast, but that doesn't help, since students are understandably reluctant to speak up about this during class. So let me ask you this: Have any of you managed to teach yourself to slow down when talking, and, if you have, can you share the secret with me? My e-mail address is volokh at law.ucla.edu.

 
[Eugene Volokh, 4:59 PM]
Still more questionable statistics about homosexual men's median number of lifetime sexual partners: As I mentioned a few days ago, one source I found on this subject -- Melissa Wells-Petry, Exclusion (1993), a book that generally supports the exclusion of gays from the military -- had a pretty serious error in one of its claims. (Wells-Petry, by the way, represented the Family Research Council in some gays-in-the-military lawsuits in the late 1990s, but I don't know whether she's still affiliated with them.) The book said:

Research suggests there are qualitative and quantitative differences between patterns of homosexual and heterosexual activity. There is ample evidence homosexuals are likely to have significantly greater numbers of sexual partners than heterosexuals. Examples in the literature include studies showing "homosexual men . . . reported a median of 1,160 lifetime sexual partners, compared with . . . 40 for male heterosexual intravenous drug users"; . . .

But when I looked up the study, it turned out that it reported the very high median number of sexual partners for homosexual men with AIDS. The words "with AIDS" were replaced in Exclusion by ellipses, even though there's good reason that the sexual practices of homosexual men with AIDS are not representative of the sexual practices of homosexual men who didn't get AIDS (just as the level of drinking among Americans with liver disease is likely not representative of the level of drinking among Americans generally). Not the right way to use ellipses, it seems to me.

     I just got the other sources cited by the book, and it turns out that the book's other assertions are similarly misleading. Here's the full text from the book (endnote numbers in quotes):

Research suggests there are qualitative and quantitative differences between patterns of homosexual and heterosexual activity. There is ample evidence homosexuals are likely to have significantly greater numbers of sexual partners than heterosexuals. Examples in the literature include studies showing "homosexual men . . . reported a median of 1,160 lifetime sexual partners, compared with . . . 40 for male heterosexual intravenous drug users";[12] "homosexual men had significantly more sexual partners in the preceding one month, six months, and lifetime (median 2, 9, and 200 partners, respectively), than the heterosexual subjects (median 1, 1, and 14 partners)";[13] and "homosexual patients are likely . . . to have more partners . . . than heterosexual patients."[14]

     It is common in the literature to find homosexuals reporting median lifetime numbers of partners in excess of 1,000. One study reported the "median number of lifetime sexual partners of the [more than] 4,000 [homosexual] respondents was 49.5. Many reported ranges of 300-400, and 272 individuals reported 'over 1,000' different lifetime partners."[15] Another study reported:

[h]eterosexual patients from all risk groups reported considerably fewer sexual partners than did homosexual men, both for the year before onset of illness and for lifetime. . . . Homosexuals had a median of 68 partners in the year before entering the study, compared to a median of 2 for heterosexuals. . . . Homosexuals in the study had a median of 1,160 lifetime partners, compare to a median of 41 for heterosexuals in the study.[16]

In another study of 93 homosexuals, the "mean number of estimated lifetime sexual partners was 1,422 (median, 377, range, 15-7,000)."[17] . . .

Every study except one involved men who were mostly or entirely drawn from samples of sexually transmitted disease patients, mostly with HIV. Even though the book excerpt repeatedly makes general statements about "homosexual men" or "homosexuals," the studies quoted at notes 12, 13, 14, 16, and 17 studies were focused not on homosexual men generally, but only on a sample that would predictably have many more sexual partners than the average gay men. The book never acknowledged this; it did mention "homosexual patients" in one quote and people with an "illness" in another, but never explained what illnesses made these people into patients -- and the other three quotes don't even mention disease.

     The study relied on by the source quoted at note 15 did try to measure the behavior of gays generally -- but it was conducted in the 1970s, before the AIDS epidemic hit, and it in any event involved a self-selected sample, which makes its results questionable. The book doesn't note either of these limitations on the study. Incidentally, it's the one study that produces a median estimate (50 sexual partners) that's much lower than the others, perhaps because it doesn't limit its focus to people who have sexually transmitted diseases. The book doesn't explain that this one result, which seems like an outlier in the data that the book presents (49.5 as opposed to 1160, 200, 1160, and 1422), may actually be the most representative estimate (out of a bad lot).

     Naturally, when books get something wrong, newspapers get it at least as wrong. So the errors made their way into at least one newspaper that I could find, the Washington Times, Nov. 26, 1992:

EXPLOSIVE NUMBERS

Talk about timing. As the Pentagon and rest of the nation await President-elect Clinton's decision on ending the ban on homosexuals in the military, here comes an explosive book that could scare the pants back on you.

Scheduled for release in March, "Exclusion: Homosexuals' Right to Serve," is written by Melissa Wells-Petry, a major and lawyer in the Army's Judge Advocate General Corps who lives in Germany, where she's recovering from wounds sustained during the Gulf war.

Provided access to Maj. Wells-Petry's manuscript, the weekly newspaper Human Events highlights one factor weighing especially heavily in the debate -- the increase in health risks (AIDS, hepatitis-A, hepatitis-B, syphilis, gonorrhea) to fellow servicemen and women that would accompany admission of homosexuals to the military in significant numbers.

Maj. Wells-Petry finds "qualitative and quantitative differences between patterns of homosexual and heterosexual activity," citing a study in the Annals of Internal Medicine where "homosexuals had a median of 68 partners in the year before entering the study, compared to a median of 2 for heterosexuals, and homosexuals had a median of 1,160 lifetime partners, compared to a median of
for heterosexuals." She also notes a study in the journal Medicine that gave homosexuals a "mean number of estimated lifetime sexual partners of 1,422."

More so than any other profession, Maj. Wells-Petry writes, the military requires its members to live and work under close conditions that afford minimal privacy, allowing far less personal choice than is normal in civilian life. For that reason, maintaining "discipline, good order and morale" is essential to the success of our armed forces.

While interference with any one of these needs would inflict serious harm on the military, Maj. Wells-Petry says, the opening of the services to homosexuals, given their unusual sexual practices and related health risks, would do damage to all three.

     Thus, so far, the theory that gay men have a stupendously high median number of sexual partners -- in the 200+ range (see here and here) -- seems to me to be entirely unsupported, though if anyone can point me to specific evidence to the contrary, I'd love to see it. As best I can tell, the only halfway reliable evidence does suggest that gay men have somewhat more sexual partners than straight men do, perhaps by a factor of 2 or 3; but that's a vastly smaller difference than some have alleged.

 
[Eugene Volokh, 3:23 PM]
The fundamental interconnectedness of all things -- here, religion and guns: I teach (1) free speech law, (2) copyright law, (3) a seminar on firearms regulation policy, and, occasionally, (4) a class on the law of government and religion. The first and the fourth are clearly connected (the First Amendment); the first and the third are connected as well (constitutional law); the first and the second are connected, too (copyright law is a speech restriction, albeit generally a constitutional one). Even the second and the fourth are connected -- there are some interesting copyright law and constitutional issues raised by copyright cases brought based on the copying of religious works.

     What I particularly like, just because they do show that "law is a seamless web," is connections between the second and the third (copyright and guns), and the third and fourth (guns and religion). Copyright-and-guns questions actually arise, albeit indirectly, when people debate questions such as Napster liability vs. gunmaker liability; I've debated this issue on a lawprof discussion list that I'm on. (It turns out that the case for Napster liability is vastly stronger than the case for gunmaker liability, partly because it's much easier for Napster to determine whether a use of Napster is infringing than for gunmakers to determine whether a gun is going to be used for illegal purposes.)

     Now we've got Praise the Lord and no ammo, please -- religion and guns, together in one tasty litigation morsel. My colleague Jonathan Zasloff passes along this press release (emphasis added by me):

LUTHERAN CONGREGATION FILES FIRST SUIT AGAINST CONCEAL-CARRY LAW

Tuesday, May 20, 2003 � Today Edina Community Lutheran Church sued the State of Minnesota to have portions of the �conceal-carry� law declared unconstitutional as infringing on the Minnesota Constitution�s guarantee of religious freedom. The decision to take legal action was made Sunday by unanimous vote of the church council after a unanimous poll of members at Sunday worship.

Citing the church�s �sincere and well-established commitment to peacemaking and non-violence,� the Edina church has prohibited firearms on all of its property, including the church building, the parking lot, a child care center, and a playground. The church plans to notify others of this prohibition with a sign reading �Blessed are the peacemakers. Firearms are prohibited in this place of sanctuary.�

In so acting, the church declined to comply with the conceal-carry law, which requires all �private establishments,� including churches, to allow firearms in parking lots.

The church also declined to comply with the new law�s notification requirements. Under the law, firearms cannot be prohibited from buildings unless signs with state-specified language are posted at all entrances and those entering receive a personal demand for compliance. These requirements infringe on the church�s right to religious communication and will hinder the church�s traditional welcome to worship.

According to Pastor Pamela Fickenscher of the church, �Our entire church property is a place of peace and sanctuary, not a place for firearms. As worshipers arrive, they should be greeted with a welcome and a blessing, not a demand that they drop their guns.�

The Edina church has invited other churches to join with it in challenging the law, which was passed on April 28 and goes into effect on May 28. The lawsuit was prepared and filed for the church by former U.S. Attorney David Lillehaug of the Minneapolis law firm of Fredrikson & Byron.

Further information on the lawsuit may be obtained from the church�s pastors, Pastor Erik Strand and Pastor Pamela Fickenscher, at 952-926-3808. Attorney Lillehaug may be reached at 612-492-7000.

A few thoughts:

1. Despite the ambiguous language of the press release, the lawsuit can't possibly lead to the law as such being struck down as unconstitutional; rather, the most the church can get is an exemption from the law. The law will still apply to property owners who don't have a religious objection to allowing firearms on their property.



2. Under the U.S. Constitution's Free Exercise Clause, religious objectors generally cannot get exemptions from laws of general applicability (see Employment Division v. Smith (1990)). (This is an oversimplification, but close enough for now.) The Minnesota Constitution, however, has been interpreted as providing such exemptions whenever two conditions are both met: (1) the law substantially burdens the objector's religious practice -- for instance, by requiring him to do something that he feels religiously prohibited from doing -- and (2) the government can't show that applying the law to the objector is necessary to serve a compelling government interest. (Several other states have also interpreted their state constitutions this way, and several more have state statutes that set up such a rule.) The church's claim is thus plausible.



3. Though the law in this area is unclear, I think that if the church leaders sincerely believe that their religion prohibits them from allowing guns on church property, and prohibits them from posting the signs that the law requires, the "substantial burden" condition will be met. (It won't matter, incidentally, whether this obligation is founded in specific provisions of scripture, or whether it's shared by other Lutheran congregations; the only question is whether such a sincere belief is present.) The question, then, will be whether courts find that the government interest in allowing people to effectively defend their lives and bodies against violence, even on other people's property, is compelling, and whether the law is necessary to serve the interest. This matter will naturally occupy hundreds of pages of legal briefs, so I won't go into it here; suffice it to say that it's hard to predict which way the courts will come out on this.

In any event, a pretty interesting legal debate, it seems to me.

 
[Eugene Volokh, 11:19 AM]
Done with grading! Just finished the grading for my Free Speech Law exam -- less painful than usual, since I only had 45 exams to grade. Now is the pleasant part: Calling the A and A+ students and congratulating them; I always enjoy that. (The exam is blind-graded, but once I hand in the grades, I can learn who got what.)

 
[Eugene Volokh, 10:35 AM]
Juries and incentives: Reader Ben Zycher writes:

I read Steve Landsburg's column on Slate and your reaction. Landsburg actually is quite a creative guy, and most of his columns, like his textbook, are clever. I agree with you that this one was horrifying, but for a slightly different reason. The problem is not so much the incentives of the jurors but instead the incentives of the jury masters: Nothing in Landsburg's column offers a hint as to why public officials would strive to structure the payments so as to "get it right." Presumably, they would structure the payments so as to achieve some other set of bureaucratic/political imperatives, and the jurors would be led to advance those objectives. In this sort of model, there is no need to have jurors thinking about what the jury masters want; they simply respond to the payment scheme offered, itself driven by the incentives facing the masters, among which "getting it right" is unlikely to be particularly important unless they are faced with some efficient set of incentives imposed by some other body, which presumably would have another set of goals, ad infinitum. . . .

Well put.

 
[Eugene Volokh, 8:35 AM]
More on the discrimination-against-religion case: My friend and fellow law professor Rick Garnett has a great op-ed on this case and on its broader significance. Marty Lederman of SCOTUSBlog also points out that the certiorari petition and the brief in opposition are on the Web.

     Reader Avi Schick reports, by the way, that the Shepard's feature on LEXIS (SHEP 299 F.3d 748) reports that certiorari was denied. Don't believe everything you read!

 
[Eugene Volokh, 6:55 AM]
Lenny Bruce: Ronald Collins and David Skover, the authors of The Trials of Lenny Bruce (2002), are petitioning New York Governor George Pataki to posthumously pardon Lenny Bruce for his 1964 obscenity conviction (a conviction based on his nightclub performance, which certainly would not qualify as obscenity even under 1964 standards). Noted First Amendment lawyer Robert Corn-Revere of Davis Wright Tremaine is the attorney of record in the case; the petition is accompanied by two letters of support signed by, among others, Floyd Abrams, Margaret Cho, Martin Garbus, Thomas Goldstein, Nat Hentoff, Lee Levine, Penn & Teller, Steve Shiffrin, Nadine Strossen, Laurence Tribe, Robin Williams, and even yours truly.

 
[Eugene Volokh, 3:39 PM]
Rewarding juries when they get it right, punishing them when they get it wrong: That's the proposal in a Slate piece:

Twelve years ago, a New York jury acquitted Lemrick Nelson of stabbing Yankel Rosenbaum and set him free. This week, following Nelson's stunning confession that he had in fact stabbed Rosenbaum, a federal jury convicted him of violating Rosenbaum's civil rights (though they also seem to have concluded that the stab wounds did not cause Rosenbaum's death). In other words, the first jury blew it.

Five years ago, an Indiana jury convicted Richard Alexander of multiple sexual assaults and sentenced him to 70 years in prison. Three years later, two other men were charged with the same crimes after one was linked to the assaults by DNA evidence and the other confessed. By then, Richard Alexander had served three years in prison for a crime he did not commit. In other words, that jury blew it too.

But the members of those juries will never be punished for their errors. That means they never had the right incentive to get their verdicts right in the first place. . . .

Weighing evidence is a difficult job. It requires a lot of attention and a lot of energy. And it would be a good thing if juries performed that job with diligence. The way to make workers diligent, as every manager knows, is to reward them when they succeed and punish them when they fail. It would be easy to apply that principle to juries: When subsequent evidence reveals that jurors got the verdict right, send each of them a big fat check. When subsequent evidence reveals they got it wrong, hit each of them with a big fat fine. And if you worry the associated risk will discourage people from serving on juries, pay them each a big fat fee for serving in the first place. . . .

In the meantime, there's no reason we couldn't use the occasional Lemrick Nelson case to send jurors a message. Every assembly line worker in America, every cab driver, every doctor and lawyer and magazine columnist, reaps financial rewards and punishments that depend on his performance. Only jurors are excepted. You can justify that exception only if you believe that getting court verdicts right is the least important job in America.

I was looking throughout the piece for some evidence that this was a joke -- a parody of how economic reasoning is sometimes misapplied to law -- or at least for some recognition that this proposal would be a disaster in the real world, though it might be an interesting bit of economic theorizing for some hypothetical alternate universe in which people and institutions behave very differently from how they do here. But I didn't see that; the author seems to be at least halfway serious.

     There are many problems with this proposal, but here's the main one: Some human institution, run by some government officials, will have to decide whether "the jurors got the verdict right" or "got it wrong." Those officials will have their own agendas and their own prejudices -- even if they're entirely well-intentioned, and just want to do a good job. (Even if the subsequent review board is a jury, chosen from one's fellow citizens, they will still have their own agendas and prejudices, as will those full-time government employees -- the equivalents of judges and prosecutors -- who participate in running that review jury system.)

     Jurors will be keenly aware that those government officials will have the power to reward the jurors -- or to force the jurors into financial ruin. After all, that's what the Slate piece wants them to do: To worry about the risk of being punished (or to care about the risk of being rewarded), and to respond to that "incentive." But will jurors really think that the reviewing officials will make their decisions based solely on the objective evidence? Or will the jurors suspect that the officials do have political agendas and prejudices, and adjust their own decisions accordingly? Won't some jurors say: "Well, I think the case against this guy wasn't proven beyond a reasonable doubt, but I think the reviewing officials will disagree -- this is a terrorism case, after all; there's a war on terrorism; and surely the reviewing officials will be upset with anyone who seems to be obstructing the war on terrorism." Imagine yourself as a juror in that sort of case; wouldn't you think this way?

     The jury system is foreseeably inefficient in many different ways. The main argument for having it (and I'm not saying this is necessarily a sufficient argument, just that it's the main one) is not that jurors are more accurate decisionmakers than judges. Rather, the argument is precisely that jurors are not answerable to government officials, and neither hope for reward nor expect punishment based on whether government officials see their views as "right" or "wrong." (Cf. Bushell's Case (1670), holding that jurors cannot be punished for rendering the "wrong" verdict.) If you take that away, you give jurors an "incentive" not just to reach a factually accurate conclusion -- you give them an incentive to reach a conclusion that their reviewers will like, and you thus destroy the one greatest merit of the jury system.

     The chief complaint about attempts to apply economic arguments to real life -- and especially to law -- is that economists create models that ignore too much about the real world. In their haste to try to create a simple and therefore useful model, they create a radically oversimplified and therefore useless model. If the Slate argument is serious, then it's an excellent example of this phenomenon.

 
[Eugene Volokh, 2:13 PM]
Suzuki libel lawsuit against Consumers Union: Just read the opinions in Suzuki Motor Corp. v. Consumers Union, including Judge Kozinski's masterful dissent from denial of rehearing en banc. I think Judge Kozinski was absolutely right on this, and the panel opinion was mistaken. (I'm particularly interested in the independent review question, the chief First Amendment procedural issue here, because I cowrote an article that touches on this very issue.)

     Much of Suzuki's case against Consumers Union stems from the fact that Consumers Union set up a special rollover test, beyond its normal ones, that it was expecting the Suzuki might fail, and that the Suzuki (but not the other SUVs) did indeed fail. The Consumer Reports article clearly said that CU did set up such a special test, in part because CU had reason to suspect that the Suzuki would indeed roll over; but the majority in this case seemed to be troubled by that. They described this as "test-rigging," and pointed to several statements that they said showed a potentially bad motive on CU's part:

Turning to the evidentiary basis for Suzuki�s claims, Suzuki contends that there is sufficient evidence that CU �rigged� the tests to produce the rollover result, demonstrating its awareness of the probable falsity of the negative Samurai rating. In support of this argument, Suzuki highlights the testimony of Denison, who stated that Landau, after witnessing Sheehan and Small�s clean runs through the long course, said: �If you can�t find someone to roll this car, I will.� After this comment was allegedly made (and after Sheehan and Small had taken the Samurai through 37 long-course runs without incident), Suzuki notes that Pittle, who was not a CU test driver, decided to drive the Samurai, tipping the vehicle after 10 runs to a cheer from a CU onlooker. Suzuki also points to the fact that CU modified the long course, which it had used since 1973, to replicate the Pittle situation and then resumed its testing of the Samurai until it tipped up -- again eliciting statements that can be construed as expressions of satisfaction (�That�s it. That looked pretty good.� �All right Ricky baby.�). . . . A reasonable jury could find by clear and convincing evidence that CU sought to produce a predetermined result in the Samurai test.

There are, however, two problems with this argument on the majority's part.

     First, even if "CU sought to produce a predetermined result in the Samurai test," that doesn't make their report false (which is necessary, though not sufficient, to prove defamation liability) -- it at most makes it unfair. The Samurai did roll over on CU's modified course, a course that CU did accurately describe; and the other trucks CU tested did not roll over. As Judge Kozinski points out, "We don't hold participants in public debate to Article III standards of impartiality."

     Second, there's nothing inherently wrong with engineers seeking to reproduce a result that they expected. That often happens: You as an engineer hear reports that there's a problem with a product, and you try to reproduce the problem. (That has certainly often happened to me when I was a computer programmer, and still sometimes happens as I continue to maintain the programs that I wrote.) You have real reason to think the problem is there, because of things people reported to you (in this case, CU had heard of apparently disproportionate rollovers involving Samurais, and one early test drive by a CU employee showed possible flaws with the Samurai), or because of your theoretical understanding of the matter (in this case, the Samurai's dimensions and weight were such that engineers might conjecture that there's a problem with it). You then try to reproduce the problem. If your testers can't reproduce it, you might say �If you can�t find someone to [reproduce this bug], I will.� And when you do reproduce the problem, you might cheer, say �That�s it. That looked pretty good.,� or �All right Ricky baby.�

     Ah, some might say, then why do the test at all if you know what you're looking for? Well, first, the test might reveal that you can't duplicate the problem, in which case that's evidence that the reports might have been erroneous or at least flukes. And, second, the test might reveal that the problem could be duplicated only with conditions so extreme that all the other SUVs would fail the test as well. If the Samurai rolled over only under conditions that would lead all the other trucks to roll over, then that would be consistent with the theory that there's some mishandling that no SUV can deal well with.

     But the Samurai did fail the modified test, and the other trucks passed it. Consumers Union accurately reported this, and accurately reported that they ran a special test, prompted by their suspicions about the Suzuki. You can call it "rigging" the test, but it's just trying to duplicate a problem. And when a magazine accurately reports its efforts on this, they should have a perfect defense against a libel lawsuit. It's unfortunate that the Ninth Circuit didn't see things this way, and I hope the Supreme Court corrects it.

 
[Eugene Volokh, 10:46 AM]
Assembly for black students (and their parents) only: An interesting story, which raises an interesting legal question much like one that Eric Muller and John Rosenberg had been discussing a week or two ago:

The mid-April Lancaster High School morning assembly that excluded nonblack students, staff and parents, as well as media, and angered some black and nonblack parents, was legally questionable, according to experts.

While school administrators say other ethnicities weren't banned from attending the meeting, they say it was called specifically for black students.

The Valley Press reporter sent to cover the meeting not only heard other nonblack students being turned away, but also was not allowed to attend.

While standing in the lobby the reporter heard two white students and one white staff member ask why the meeting was called for black students and why they couldn't attend.

"The meeting we had Thursday (April 17) was not meant to be exclusive and to shut doors," Lancaster High Principal Bill Appleton said. "It was meant to be inclusive, to be sure we address the needs of a subgroup on campus.

"There was a misperception of the meeting and that's unfortunate," the principal added. "The purpose was to address issues that are specific to a cultural group, so they would be able to hear without feeling any degree of intimidation from anyone else."

In Appleton's view, the April 17 meeting was sponsored by the Brothers and Sisters United, or Black Student Union, for its members and other black students to address issues specific to black students.

"I don't think we ever anticipated that anyone else wanted to attend," Appleton said.

Although black students were the only ones who received invitations to the meeting, administrators and BSU adviser Eve Richard believe the meeting didn't exclude other races but was simply designed for black students. . . .

The California Department of Education's lawyers . . . said the district had the right to address its black students if the intent was to enhance the academic program or to change behaviors.

When asked if that includes calling a meeting for one race and excluding another, the state's Deputy General Counsel Roger Wolfertz said yes, it does.

"Otherwise, it may not work," he said. . . .

 
[Eugene Volokh, 8:36 AM]
Our fairly media-savvy fellow citizens: According to this story about why many people misquoted by Jayson Blair seemed unfazed by the errors (thanks to How Appealing for the pointer):

Just 21% of Americans believe all or most of what they read in their local papers, according to a poll last year by the Pew Center. In another survey, the center found that 45% believe news stories are "often inaccurate."

As so many of the posts on this blog have argued, such skepticism is unfortunately entirely justified.

 
[Eugene Volokh, 8:20 AM]
May states discriminate against religious institutions or programs in their voucher-based aid plans? Last year (in Zelman v. Simmons-Harris), the Supreme Court held that states don't have to exclude religious institutions and programs from generally available voucher plans -- for instance, a state may provide school vouchers to students who go to all private schools, whether religious or secular; such programs, the Court held, don't violate the Establishment Clause.

     But what if states want to discriminatorily exclude religious institutions and programs from such generally available plans? The state of Washington, for instance, provides certain kinds of help to college students, but excludes students who are studying theology. Is this permissible? Or does such exclusion violate the Free Exercise Clause (by discriminating against religious practice), the Free Speech Clause (by discriminating against religious speech), the Establishment Clause (by showing hostility towards religion, inhibiting religion, or conveying a message of disapproval of religion), or the Equal Protection Clause (by discriminating based on religion)?

     Lower courts have disagreed on this subject, and the Supreme Court has just agreed to consider the issue. The case in which the Court granted certiorari is the Washington state case, Davey v. Locke, where the Ninth Circuit held that excluding theology programs from the generally available voucher programs was unconstitutional. My tentative prediction: 5-4 to hold that states may not exclude religion from these programs, with Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas on one side and Justices Stevens, Souter, Ginsburg, and Breyer on the other. (Of course, if one of the Justices retires, the lineup may change slightly, but I doubt that the result will).

     Of course, there's much more at stake here than college-level theology education -- some state courts have interpreted their state constitutions as prohibiting school voucher programs that include religious schools among other schools, even though the Establishment Clause does not prohibit such programs. That's the real battleground here, and the Locke v. Davey case (in the Supreme Court, the parties' names will be reversed, since the party that challenged the lower court decision -- Washington state, represented by Governor Locke -- was the defendant below) will likely have a substantial effect on that battle.

     Here's Sasha's post from last year about the Ninth Circuit decision; and here's my long post on the subject, also from last July:

EXCLUDING RELIGION: Two months ago, in Zelman v. Simmons-Harris, the Supreme Court held that the federal Establishment Clause doesn't require that religious schools be excluded from even-handed school choice programs. But as Juan Non-Volokh points out [here] . . ., some court decisions -- including a decision just this morning [August 5, 2002] -- hold that state constitutional church-state provisions may require such exclusion. Are those state court decisions (and state legislative decisions to exclude religious schools from programs that are open to private secular schools) constitutionally permissible?

     Generally, state courts and legislatures may interpret state constitutions in a more rights-protective way than the federal constitution. Many state courts have done this to various rights provisions in their state constitutions, such as those governing free speech, search and seizure, and right to bear arms. There's no inherent conflict between the federal constitution imposing various constraints on both the federal and state governments, and a state constitution imposing still more constraints on the state government. That's part of the virtues of our federal system -- a state's citizens may enact protections against their state government beyond what the federal constitution provides.

     But a state may not secure supposed constitutional rights that themselves violate the rights of others. For instance, a state constitution cannot provide more protection of the right to free speech by giving one race extra speech rights beyond what another race has -- this might not violate the federal Free Speech Clause (since it gives more protection than the federal clause offers), but it does violate the Equal Protection Clause, which generally prohibits states from treating people differently based on race.

     That's why I think that state constitutional provisions (and state statutory provisions) that require the exclusion of religious schools from evenhanded choice programs do violate the federal constitution. It's not that there's anything wrong in principle with state citizens having extra protection against their state legislature -- but this "protection" cannot take forms that are themselves unconstitutionally discriminatory.

     Four constitutional provisions are potentially relevant here, and if exclusion of religious schools violates any one of them, then it�s unconstitutional.

     1. The Free Exercise Clause bars the government from �prohibiting the free exercise [of religion].� The Court has treated this as an antidiscrimination rule, under which the government may not �impose special disabilities on the basis of religious views or religious status.� For example, the Court has held that even if a city may ban killing of some animals, it can�t ban only religious killing.

     The strongest response is that the Free Exercise Clause bars only discriminatory �prohibit[ions],� and excluding religious schools from a school choice program isn�t the same as prohibiting them outright. But a Court plurality has suggested that the antidiscrimination rule requires equal access to benefits as well as equal freedom from prohibitions.

     2. The Free Speech Clause bars the government from �abridging the freedom of speech�; and selectively excluding certain sets of views from broad funding programs, the Court has held, is an unconstitutional abridgement. If a funding program is open to all speakers meeting certain objective criteria -- for instance, if a public university funds a wide range of student newspapers -- the program
can�t then exclude religious speakers.

     The strongest response is that funding student private educations isn�t really analogous to funding student newspapers, because it�s vastly more expensive. When that much money is being given out, the counterargument would go, the government should have more flexibility to choose which views it wants to subsidize. It�s hard to tell exactly how the Court would resolve this.

      3. The Establishment Clause says the government shall �make no law respecting an establishment of religion,� and the Court has repeatedly said that this bars the government from �advancing or inhibiting religion,� from �endors[ing] or disapprov[ing] of religion, or from showing favoritism or �hostil[ity] to religion�:�The First Amendment mandates governmental neutrality . . . between religion and nonreligion.� Just as discriminating in favor of religion is impermissible advancement, endorsement, and favoritism, so excluding religion would be impermissible inhibition, disapproval, or hostility.

     The Supreme Court has never struck down a program on these particular grounds, so courts might conclude that these quotes are just �dictum� -- offhanded remarks that weren�t really fully considered by the Court. But they�ve been repeated often enough (in dozens of cases) that the Justices seem to have been serious about them.

     4. The Equal Protection Clause bars states from �deny[ing] to any person . . . the equal protection of the laws.� The Court has interpreted this as barring both race discrimination and religious discrimination. It�s not clear, though, whether this would bar discrimination against all religious institutions, or only discrimination among religions. (�Person� in the Equal Protection Clause includes corporations.)

     Lower courts are split on the subject; in an article I wrote a few years ago, I cite various cases that strike down discriminatory exclusion of religion, and various cases that uphold it. For a good example of a very recent Ninth Circuit case that strikes down such a discriminatory exclusion, see Davey v. Locke; for an example of a Ninth Circuit case that upholds such a discriminatory exclusion, see K.D.M. v. Reedsport School District.

     My bottom line: If the government sets up a school choice program that's open to private secular schools, then I think it's unconstitutional for it to exclude private religious schools based on their religiosity. I'm not sure whether courts will ultimately rule that way, but I think that there are good precedential and normative reasons for them to do so. (Note that this doesn't make it unconstitutional for the government to fund only government-run schools -- there, the classification is based on whether the school is run by the government, not based on whether it's run by a private religious entity or a private secular secular entity.)

 
[Eugene Volokh, 5:54 AM]
More questionable statistics about male homosexuals' median numbers of sexual partners: So I've gotten interested in this subject, and especially in how the statistics are gathered and reported here (see my original post for another example). My search for data on this brought me to Wells-Petry, Exclusion (1993), which seems to generally support the exclusion of gays from the military. I haven't read the whole book, so I can't speak to its general merits -- but I did find the following claim:

Research suggests there are qualitative and quantitative differences between patterns of homosexual and heterosexual activity. There is ample evidence homosexuals are likely to have significantly greater numbers of sexual partners than heterosexuals. Examples in the literature include studies showing "homosexual men . . . reported a median of 1,160 lifetime sexual partners, compared with . . . 40 for male heterosexual intravenous drug users"; . . . .

Wow, pretty striking; so I looked in the endnote. The name of the article already made me a bit suspicious -- Haverkos, The Epidemiology of [AIDS] Among Heterosexuals, 260 J.A.M.A. 1922-29 (1988) -- but remember that this was in an endnote, many pages away from the footnote; most readers wouldn't see the name. Nor would they see, unless they got a copy of the article, the full text of the sentence:

In early studies conducted by the CDC, homosexual men with AIDS reported a median of 1160 lifetime sexual partners, compared with 81 for Haitian men with AIDS and 40 for male heterosexual intravenous drug users with AIDS.

Yes, that's right -- the sexual partner count wasn't for male homosexuals generally, but for male homosexuals with AIDS; the book replaced the qualifier "with AIDS" by an ellipsis.

     Well, then. There's a bit of a difference, no, between the assertion that "homosexual men . . . reported a median of 1,160 lifetime sexual partners" and the assertion that "homosexual men with AIDS reported a median of 1160 lifetime sexual partners"? Imagine a study which found that "People who drink alcohol and are dying of liver disease reported drinking a median of 10 drinks a day, compared with 1 drink a day for people with hepatitis who are dying of liver disease" -- would you think it's entirely proper to report it as "People who drink alcohol . . . reported drinking a median of 10 drinks a day, compared with 1 drink a day for people with hepatitis . . . ."?

     I'm trying to get the other sources cited by Exclusion to support its point, and will report on what I find. I stress again: I'm not denying that male homosexuals do on average have more sexual partners than male heterosexuals. My claim is simply that you can't infer to homosexuals generally either from AIDS patients or, as with the source described in the earlier post, from a self-selected sample of gay men in the San Francisco Bay Area in 1970.

 
[Eugene Volokh, 3:52 PM]
Academic Legal Writing book is now available on amazon: Thanks to reader Craig Rolle for the heads up -- here's the page, and here's more information on the book, including the Table of Contents, Judge Kozinski's Foreword, and parts of the first chapter.