NORMAN RESIDENT FILES COMPLAINT WITH UNITED NATIONS ALLEGING U.S. DISCRIMINATION

By Perry Mason (written Nov, 1999) Late last year I filed a formal complaint with the United Nations Human Rights Commission (UNHRC) against the United States for violations of a little-known international law called the International Covenant on Civil and Political Rights (ICCPR). The U.S. is in violation of this treaty (and other international instruments), which it signed and ratified, because of federal and state laws and practices that discriminate against persons based on (perception of) sexual orientation. Under the U.S. Constitution, international treaties have the status of federal laws. Thus the authority for my complaint comes from the Constitution, the ICCPR, case law under the ICCPR, and international customary law.

As instructed via a letter dated September 29, 1997 from the UNHRC, I submitted my complaint to the Commission in Geneva, Switzerland on December 14, 1998. Normally two to three years are required for such complaints to be evaluated and for the UNHRC to issue a ruling. Under UNHRC guidelines, an individual may submit a complaint to the UN if he or she is a victim of a human rights violations or "has direct, reliable knowledge of violations". My complaint specifically deals with sodomy laws in several states, including Oklahoma, as well as the U. S. Supreme Court sodomy case Bowers v. Hardwick. In the complaint, I offer arguments as to why Bowers is no longer good law and also complain of the so-called Defense of Marriage Act and the U.S. military regulations under the Uniform Code of Military Justice regarding, among others, sodomy and "Don't Ask, Don't Tell". The complaint also covers various other laws that discriminate based on sexual orientation - laws that are themselves unlawfully broad and/or vague, e.g. "Outraging Public Decency" and "Attempting to Engage in an Act of Lewdness [sodomy]", both of which are on the books in Oklahoma. These laws violate both the ICCPR and the U.S. Constitution, among other things.

Unlike U.S. federal law, under the ICCPR sexual orientation is covered under the provisions regarding sex/gender discrimination. Technically, sexual orientation is a "sex classification", thus it is only logical that it be covered under sex discrimination provisions. The only other U.S. court that has included sexual orientation under sex discrimination has been the Hawaii Supreme Court, in what is now known as the Hawaii same sex marriage case, Baehr v. Lewin (now on appeal).

Among the authority used in my complaint is another case brought before the UNHRC, Toonen v. Australia. In that case Nicholas Toonen complained in December 1991 about the sodomy law in the Australian territory of Tasmania. The UNHRC found in Toonen's favor, ruling in March 1994 that the sodomy law violates the right to privacy guaranteed by the ICCPR. In addition to privacy violations, I argue, like Toonen, that sodomy laws, along with the other laws and practices already mentioned, violate the Equal Protection provisions of the ICCPR (under "sex" and "other status"). Unlike Toonen, I also argue that these laws and practices violate the ICCPR guarantees of expression and association. I argue that sexuality involves "communicative significance", and thus that persons of the same sex should be allowed to participate in public displays of affection without fear of legal reprisal. Such laws and practices (especially the Defense Of Marriage Act) do not allow same sex couples the necessary social and personal development, such as the ability to establish and maintain intimacy and marriage.

According to the UN's ruling in the Toonen case, a person is not only considered a victim if "caught in the act of sodomy" by police and subsquently prosecuted. A person is a victim if a "threat" exists that they will be prosecuted under a sodomy law or other discriminatory law by virtue of their sexual orientation. These laws also victimize individuals because they give legal sanction to anti-gay animus, regardless of the fact that they may be invoked legally. Thus the law currently condones the expression of discrimination based on sexual orientation. However, in the United States, a person must be caught in the act of sodomy by police and prosecuted for the so-called crime of sodomy before being considered a victim and having the required standing to sue in U.S. courts.

In Oklahoma, as in four other states, sodomy is prohibited only between men or persons of the same sex. This situation is also true in the U.S. armed forces. Heterosexual sodomy is now allowed in the U.S. armed forces, per the ruling in a 1992 Oklahoma Air Force case with an interesting name - United States v. Fagg.

Under UN procedures, eveidence of discrimination may be presented via media accounts, although media depictions may not be the sole source of evidence. Additionally, vindication by the UN does not result in the awarding of monetary damages.

As part of my complaint, I submitted scores of exhibits as evidence of discrimination in the U.S. and in various states, including but not limited to: sodomy laws in several states, including 0klahoma; the Defense Of Marriage Act; extensive federal and state case law sanctioning discrimination in employment and other fields; evidence of discrimination at OU; the Matthew Shephard case; evidence of maltreatment by those perceived to be "gay" by the police and the courts; evidence of discrimination by figures of authority on the national and state level; and U.S. military regulations and practices.

Another interesting note - the U.S. has not made the ICCPR "self-executing". In other words, the treaty is not enforceable in U.S. courts, and Congress has not incorporated its provisions into law that would be enforceable in U.S. courts. However, it is still possible to use the ICCPR as an argument in U.S. courts because (among other reasons), the U.S. signed and ratified the ICCPR, the U.S. is a member of the United Nations; and the U.S. is in violation of international customary law. The U.S. Supreme Court has ruled that "customary law is part of our law, and must be ascertained by the courts of justice." Under the ICCPR, all parties to the treaty, including the United States, must "provide an effective remedy" to the complaints lodged under the treaty; the U.S. does not. This failure to abide by the correctionary mechanism of the ICCPR is also mentioned in my complaint.

Should a ruling be rendered in my favor, it should become easier for same sex partners to kiss and hold hands. In other words, it will be easier for people to simply be themselves. Hopefully, the military (including the ROTC) will also have to admit openly "gay" recruits as it now does openly "straight" ones. Finally, sodomy laws will hopefully be overturned and the choice of who to love will not be subject to criminal penalties. A reduction in hypocrisy, unhealthy repression of feelings and discrimination should be profound. Albeit, like anything else, it will take time.

The fact that affectional preference is the subject of so much discrimination and governmental interference, resulting in litigation and its accompanying time and expense, is beyond ridiculous. It's time to stop it. If you or someone you know has been a victim of this type of discrimination, please e-mail pmason@law.com, or write and send evidence to: Perry Mason, c/o Student Advocate, PO Box 2455, Norman, OK 73070 (www.studentadvocate.org). I can submit your information to the UN as part of my pending complaint.