By Judith A. Reisman, Ph.D. and Mary E. McAlister, Esq.
INTRODUCTION
In 2007, then-Professor at Harvard Law School, now Supreme Court Justice, Elena Kagan said,
Richard Posner is the most important legal thinker of our time and for generations to come legal scholars will dissect and analyze, will praise and criticize his distinctive legal vision.”[1]
With this in mind, it is vital to examine the September 4, 2014 decision of Chief Judge Richard A. Posner, writing for the Seventh Circuit, rejecting as unconstitutional the definition of marriage as the union of one man and one woman.[2] The court essentially concluded that homosexuals’ lives are “basically similar to those of heterosexual[s]” and that “[t]he sex and love lives of most gay and straights today are both similar and conventional.”[3] Adhering to Justice Kagan’s guidance, this article analyzes Judge Posner’s scholarship on homosexuality, standing as it does on the original sex research of fellow Harvard alumnus, Alfred C. Kinsey,[4] and its influence on his opinion invalidated marriage as the union of one man and one woman. Judge Posner’s professional trust in Kinsey’s data was predicted by Indiana University Dean Frank Horack in 1950:
The principal impact of the Kinsey Report will be on...the law...[aiding] police officers, prosecutors, judges….They will use the data and their professional advice will be heeded by the judge. Here the Report will control many decisions and dictate the disposition and treatment of many offenders [5]
Judge Posner’s decision proves the accuracy of Dean Horack’s prediction.
1: Defining “Marriage”
Voltaire said that “[i]f you wish to converse with me define your terms.”[6] However, Judge Posner’s 40-page opinion stating that marriage cannot be defined as the union of one man and one woman does not state how “marriage” should be defined.[7] What has been the building block for the civil society will be metamorphosed from an empirically verified, historically protective child-rearing covenant, to anything or nothing.
As Dean Horack forecast, decades of Judge Posner’s legal scholarship shows that he has heeded the sex research of Alfred Kinsey, the father of “the sexual revolution.”[8] In Sex and Reason, Judge Posner cites Kinsey 25 times, claiming Kinsey’s “two great studies” are “the high-water mark of descriptive sexology,”[9] crediting him as the “central figure” in the “scholarly science” of sexology.”[10] Yet, historian Paul Robinson explains:
“The notion of [sexual] outlet, for all its apparent innocence, performed important critical services for Kinsey. Principal among these was the demotion of heterosexual intercourse to merely one among a democratic roster of six possible forms of sexual release….[M]arital intercourse….received about one third the attention devoted to homosexual relations. . . . a remarkable feat of sexual leveling . . . the fundamental categories of his analysis clearly worked to undermine the traditional [marital] sexual order.[11]” (Emphasis added).
2: Homosexual and Heterosexual Relationships
Indeed “outlet” sex with many partners became a dominant homosexual theme. The pre-eminent pioneering homosexual periodical, The Advocate, in its 1994 self, Survey of Sexuality of 2,500 men, reported, that for homosexual couples:
- 2 percent had only one sexual partner,
- 28 percent had sex with others but were “supposed” to be monogamous,
- 20 percent were in “open” relationships.[12]
By comparison, for heterosexual marrieds: “about 3% to 4% of currently married people have a sexual partner besides their spouse in a given year and about 15% to 18% of ever-married people have had a sexual partner other than their spouse while married.”[13] Even Kinsey Institute data revealed 43 percent of homosexual men reported from 100 to 1000 or more “outlets,” or partners in their lifetime.[14] Heterosexual men report a median of seven “outlets” in their lifetime.[15] Homosexual and heterosexual relationships, are not “essentially the same.”[16]
Kinsey himself engaged in sadomasochistic sodomy with multiple of male “outlets” and in pornographic filming of these in his attic and in his sound-proofed rooms at Indiana University.[17] Kinsey’s secret sex acts were criminal at the time of the writing of his “great studies.”
3: The Economic and Social Results of Heterosexual Monogamy
Judge Posner, an expert on economics and law,[18] failed to acknowledge the economic and social optimality of monogamous conjugal unions, instead insisting:
“No evidence in support of the claim of optimality is offered…a number of countries permit polygamy—Syria, Yemen, Iraq, Iran, Egypt, Sudan, Morocco, and Algeria—and that it flourishes in many African countries that do not actually authorize it, as well as in parts of Utah.”[19]
Women, children and national economies do not “flourish” under polygamy. World Bank data for official and unofficial polygamous societies find average annual per capita household income is $3,900. Including the oil-rich countries raises income averages to $8,800 versus annual incomes of $39,000 to $102,000 for monogamous nations.[20] Hard evidence supports the economic facts: societies historically built on monogamy and its virtues create optimality; high standards of living. Freedom for women as first class citizens (not enduring clitirodectomy, etc.) has been the basis of healthy families and the civil society.
4: Married Homosexual Parents Make For Happier Children?
Judge Posner conjectured that if “homosexual adoptive parents” married (undefined) children would be happier.[21] However, this perceived children’s happiness is undermined by domestic violence, the third highest homosexual health hazard after AIDS and substance abuse (cancer is first for lesbians).[22] Homosexual researchers estimate “at least 500,000 gay men are abused by their lovers each year.” They clarify, “[w]ith two men in a relationship….violence occurs more frequently in the gay male community than in straight America.”[23] An adopted child in such households would be likely to experience not only the anxiety of potential parental AIDS, but also substance abuse driven violence and the consequent increased risk of being sexually abused.[24] In fact, “31 percent of lesbian mothered children said they had been forced to have sex as did 25 percent of homosexually fathered children [compared to] 8 percent of children in biologically parented homes.”[25]
5: The Scientific Subject Matter Underlying Same-Sex Marriage
Kinsey’s methodology was faulty. He coded women as “married” if they were “in common-law relationships…at least a year,”[26] (including prostitutes living with their pimps). Yet Judge Posner believes Kinsey’s data are, “the high-water mark…[of] scholarly science.”[27] Kinsey’s reports dwarf all others, he said, “in both sample size and interviewing depth,”[28] and “are a vast mine of useful information.…because of the extraordinary length to which the interviewers went to elicit truthful answers.”[29] In fact, Kinsey justified “Forcing a subject” to reply the ‘right’ way and he changed their answers when necessary.[30] Also 1,400 “normal” subjects were sex offenders,[31] while 75 percent of others were purged. [32] Below, Judge Posner references the “Kinsey scale,” that purported to show “10 to 37” percent of the male population are sometimes homosexual.[33]
“A zero has only heterosexual preference, a six only homosexual preference. A three is a perfect bisexual, indifferent to the sex of his partner. Kinsey proxied preference by “fantasy”….in a rough sense pre-social, biological preferences.”[34]
In fact, Kinsey opined that most men change preference throughout their lives.[35] He “proved” sexuality is fluid. Still, Judge Posner concludes that homosexuality is immutable:
“[Homosexuality] is an immutable (and probably an innate, in the sense of in-born) characteristic rather than a choice… shaped by a fetus’s exposure to certain hormones.”[36]
6: Calling Homosexuality Immutable Ignores Early Sex Abuse
Claiming that homosexuality is immutable ignores the wide body of homosexual literature itself and the multiple studies that identify early sex abuse as a dominant component of homosexual and lesbian orientation. The July 2000 US DOJ National Incident-Based Reporting System (NIBRS) said males accounted for 96 percent of all of sexual offenders. Some of the 96 percent of males abused boys.
“Boys under age 12 were 25 percent of all sex abuse victims. [Forcible sodomy peaked at] around age 4…The risk of being sexually assaulted with an object peaked at ages 3 and 4, then fell to less than half by age 8. The NIBRS data find that 63 percent of all forcible sodomy victims under age 5 are boys, 64 percent of sodomized children under age 12 are boys and 49 percent of sodomized children between 12 and 17 are boys… the estimated 2percent to 5 percent bi/homosexual cluster is mainly responsible for the reported sodomizing of boys….”[37]
Moreover 21percent of homosexuals reported to The Advocate that they were sexually abused by an adult by age 15.[38] Such boy sex victims, traumatized and gender confused are often labeled “gay,” which now the Seventh Circuit proclaims is innate and immutably inherited.[39]
7: The Child in Kinseyan Changed Law
Since 1948 old and new measures of crime skyrocketed as legal academia adopted a Kinseyan “sexual leveling” and “outlet” perspective, trivialized pre-Kinsey laws and encouraged policymakers to fundamentally transform the law. Five quick examples:[40]
- In 1950 The Group for the Advancement of Psychiatry (GAP) said: “[P]ersons under the age of 7 . . . are… fully capable of part or exceptionally even full responsibility for sexual behavior….” with an “Adult”.[41]
- The 1955 Model Penal Code on rape of 10 yr. olds. An “actor must be at least 5 years older” for criminal rape. The “previous promiscuity of the child” should be considered.[42]
- 1962 Vanderbilt Law Review: “Even at the age of four or five, [her] seductiveness may be so powerful as to overwhelm the adult . . . The affair is therefore not always the result of the adult’s aggression; often the young female is the initiator and seducer.”[43]
- 1969 Georgia Law Review: “Child molestation” is a “relatively minor crime.” The “absurdity of enforcing most of our sex laws…should be obvious, even to the most prudish Neo-Puritans.”[44]
- 1973 Missouri Revision Commission: Rape and child abuse “carry extremely severe punishment…Those few who are punished are dealt with cruelly, to the satisfaction of no one except a shrinking frenetic fringe of maniacal moralists.”[45]
These five examples typify seven decades of trivializing women and child-protective laws. This reflected a seismic shift from America’s child-centric to an adult-centric society that embraced a utopian ideal of no-fault divorce which has penalized women, children and marriage. Although often divorce cannot be avoided, its prevalence leads to more non-biological parents in the home, which has led to increased child abuse.
“Girls who are merely without fathers were about 50 percent more vulnerable than the average girl, but girls with stepfathers were almost 150 percent more vulnerable….Clinicians have noted that in many cases of father-daughter incest the offender was really a stepfather[46]…. [Children] in these families are more vulnerable to stepbrothers, stepsisters, step cousins…”[47]
Nevertheless, the Seventh Circuit rejected faithful man-woman matrimony as optimal for children,[48] ignoring evidence incompatible with a Kinseyan worldview.
8: Tradition and Child-Protective Values
Citing to no evidence, Judge Posner asserts that “homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world.”[49] The atrocities, murders, gassing, lynching, etc., of millions of men, women and children of provably immutable populations—Jewish, Black, Indian, Asian, etc., cannot be compared to historical concerns about unattached bachelors or homosexuals. Unlike the immutable characteristics of race, decades of scientific searching has failed to locate a gay gene.[50] White homosexual males always enjoyed rights and privileges previously denied to generations of women and minorities. Hijacking women’s conjugal rights erodes their legal and social benefits: a) their human right to select eligible mates from the total male gene pool and b) their hard won contractual benefits, the results of generations of women’s struggle for justice and equality for themselves and their offspring.[51]
9: The Children of Table 34
Finally, the data Kinsey presented and upon which Judge Posner relies, were neither scientific nor representative of societal norms. Moreover, Kinsey’s “sample size and interviewing depth”[52] were criminally tainted. His “proof” that children are “sexual from birth” even capable of “orgasms” came from records of 317 to 2,035 infants and children, the youngest 2 months old, abused around the clock, as recorded in Chapter 5 of Sexual Behavior in the Human Male. While proffering a studious analysis of Kinsey’s scholarship, Judge Posner apparently ignored data showing blatant child abuse placed in clear view as Tables 30-34 in Kinsey’s book. Judge Posner is relied upon to provide objective review and analysis, so it is troubling that he has failed to address the evidence of child abuse by Kinsey’s team, not only in Tables 30-34, but also in discussions such as the following description of four out of “six types” of “orgasmic” responses of infants and children.
- Extreme tension with violent convulsion…sobbing, or more violent cries, sometimes with an abundance of tears (especially among younger children)…about one sixth (17 percent) of the pre-adolescent boys.
- …hysterical laughing, talking, sadistic or masochistic reactions, rapid motions (whether in masturbation or in intercourse)….continued through the orgasm. A small percentage (5 percent)…
- …sometimes fainting of subject….occasionally occurs throughout the life of an individual. Regular in only a few (3 percent) of the pre-adolescent…males.
- Pained or frightened.… The genitalia… become hypersensitive…some males suffer excruciating pain and may scream if movement is continued or the penis even touched. The males in the present group become similarly hypersensitive before the arrival of actual orgasm will fight away from the partner [the rapist] and may make violent attempts to avoid climax, although [says Kinsey] they derive definite pleasure from the situation….About 8 per cent of the younger boys are involved here…[53]
CONCLUSION
If, as Justice Kagan says, Judge Posner sets the standard for legal scholarship, and if “the high-water mark of descriptive sexology,” is Kinsey, then it is worthwhile to examine the Seventh Circuit’s failings in its marriage decision. In sum, the court failed 1) to define marriage; 2) to prove homosexual domestic permanence instead of the documented preference for “outlets;” 3) to prove that polygamy leads to economic and social “flourishing;” 4) to acknowledge the risks adopted children of homosexuals face from parental AIDS, substance abuse, violence and child abuse; 5) to acknowledge the methodological flaws of the Kinsey research upon which the decision relies; 6) to follow the scientific evidence that homosexuality is not immutable; 7) to follow the evidence of optimality of biological two-parent families; 8) to recognize that homosexuals have not faced discrimination equivalent to the murder and mayhem visited upon minorities; 9) to acknowledge the child sex abuse underlying Kinsey’s “scholarly science.”
The Seventh Circuit’s and other courts’ similar decisions on marriage are the latest examples of an effort to replace the Constitution with a Kinseyan worldview. Other examples include Lawrence v. Texas, in which the Supreme Court de-criminalized sodomy[54] and Steffan v. Perry, which addressed homosexuality in the military.[55] A re-evaluation of the basis of our legal scholarship may be in order.
ENDNOTES
[1] Elena Kagan, Richard Posner, the Judge, 120 Harvard L. Rev., 1121 (March 2007).
[2] Baskin v. Bogan, 2014 WL 4359059 (7th Cir. 2014).
[3] Mark Thompson, The Advocate: Long Road to Freedom, (1994). Kirk and Madsen, After the Ball 1989. “Homosexualities, a widely publicized study issued by the Kinsey Institute [in 1978] showed that gay men lead daily lives that are basically similar to those of heterosexual men.”
[4] Alfred Kinsey, Wardell Pomeroy, Clyde Martin, Sexual Behavior in the Human Male, (1948); Kinsey, Pomeroy, Martin and Gebhard, Sexual Behavior in the Human Female, 53 (1953).
[5] Frank Horack, Jr. Sex Offenses and Scientific Investigation, 44 Illinois Law Review, 156, 158 (1950). See especially, Kinsey’s Criminal Psychopathology in American Law at: http://www.drjudithreisman.com/archives/2014/04/kinseys_crimina.html.
[6] Voltaire, http://thinkexist.com/quotation/if_you_wish_to_converse_with_me-define_your/175628.html
[7] Baskin v. Bogan, 2014 WL 4359059 (7th Cir. 2014).
[8] Richard Rhodes, Father of the Sexual Revolution, New York Times, Nov. 6, 1997, http://www.nytimes.com/books/97/11/02/reviews/971102.02rhodest.html.
[9] Richard A. Posner, Sex and Reason, 19 (Harvard University Press, 1992).
[10] Id. See http://www.wnd.com/2014/09/federal-judge-envisions-rape-license-for-right-to-rape/#Q9CUBVrVOsxOAQQL.99 .
[11] Paul Robinson, The Modernization of Sex, 58, 59 (Harper & Row, New York, 1976).
[12] August 23, 1994, “The Advocate Survey of Sexuality” self report data on partner relationships, pp. 22-24. See also, Reisman and Johnson, The Briefing Book www.scribd.com/doc/38648184/The-Briefing-Book,
[13] K. Bowman, Just How Many Spouses Cheat? Forbes (June 29, 2009) citing NORC General Social Survey, http://www.forbes.com/2009/06/28/sanford-ensign-affair-opinions-columnists-extramarital-sex.html.
[14] Bell and Weinberg Homosexualities A Study of Diversity Among Men and Women, 308 (table 7) (Kinsey Institute, 1978).
[15] ScienceBlogs, http://scienceblogs.com/purepedantry/2007/08/14/men-and-woman-cannot-have-diff.
[16] Baskin at *5.
[17] James H. Jones, Dr. Yes, The New Yorker August 25 and September 1, 1997, 99-113. In fact, it appears that Kinsey died from “orchitis” contracted venereally and/or from self-inflicted masturbatory trauma inflicted on his sex organs. Id.
[18] Judge Posner is the author of Economic Analysis of Law, which is widely used in law schools and is regarded as the leading authority on the interdisciplinary field of law and economics. See, Posner, Economic Analysis of Law, xix (Aspen Publishers, 6th ed. 2003).
[19] Baskin, at *15.
[20] http://www.bioedge.org/index.php/bioethics/bioethics_article/11103. Gendercide in India. “When the British colonised India in the 18th century, they were shocked to discover “missing girls”. Some accounts describe villages without a single girl.” Now polygamy is illegal except for Muslims.
[21] Baskin, at *11.
[22] David Island and Patrick Letellier, Men Who Beat the Men Who Love Them, 13-14 (New York, Harrington Park Press, 1991).
[23] Ibid.
[24] Ana Samuel, The Kids Aren’t All Right: New Family Structures and the "No Differences" Claim, Public Discourse June 14, 2012, http://www.thepublicdiscourse.com/2012/06/5640.
[25] M. Regnerus , 41 Social Science Research 752-770 (2012); see also, Michael Shepherd http://www.pressherald.com/news/details-matter-when-citing-child-rearing-studies_2012-07-29.html.
[26] Kinsey, et. al. Sexual Behavior in the Human Female, at 53 (1953).
[27]. Posner, Sex and Reason, at 19.
[28] Id.
[29] Id.
[30] Kinsey, et. al., Sexual Behavior in the Human Male, at 55.
[31] Id. at 392
[32] William Simon, quoted in Arno Karlen, Sexuality and Homosexuality, at 456 (W. W. Norton, Inc., New York, 1971).
[33] See Sex and Reason, at 119; See also, Richard A. Posner, Overcoming Law, at 555 (Harvard University Press, 1995).
[34] Sex and Reason, at 80.
[35] Kinsey, et. al., Sexual Behavior in the Human Male, at 639.
[36] Baskin, at *5
[37] Judith Reisman, How the FBI and DOJ Minimize Child Sexual Abuse Reporting, The Institute for Media Education, July 2002, http://drjudithreisman.com/archives/fbi.pdf.
[38] The 1994 Advocate Survey of Sexuality, August 23, 1994, at 21. See also, Judith Reisman and Charles Johnson, The Briefing Book, www.scribd.com/doc/38648184/The-Briefing-Book,
[39] Judith Reisman, Crafting Bi/Homosexual Youth, 14 Regent University L. Rev., 283 (2001), www.drjudithreisman.com/archives/regent.pdf,
[40] Reisman, et al, Reliance on Kinsey’s “Scientific” Child Sex Atrocities and the Effects of His Crime and Fraud on Past and Current Law and Public Policy, Publication forthcoming.
[41] Manfred Guttmacher, Psychiatrically Deviated Sex Offenders, Report No. 9 (Committee on Forensic Psychiatry of the Group for the Advancement of Psychiatry 1950).
[42] American Law Institute, Model Penal Code § 43.02.
[43] Ralph Slovenko & Cyril Phillips, Psychosexuality and the Criminal Law, 15 Vand. L. Rev. 797, 809 (1962) (emphasis added).
[44] Note, Pedophilia, Exhibitionism and Voyeurism: Legal Problems in the Deviant Society, 4 Ga. L. Rev. 149, 150 (1969) (emphasis added).
[45] Orville Richardson. Sexual Offenses Under the Proposed Missouri Criminal Code, 38 Missouri L. Rev., 372 (1973).
[46] Consider the increase in incestuous infant exploitation and childhood venereal disease, Nadine Hartley, Yahoo! Contributor Network, “Disturbing Reports of Infant Rape Continue as the Public and Government Ignore Our Babies.” January 29, 2010. http://voices.yahoo.com/infant-rape-epidemic-america-5370565.html?cat=25. when vulnerable adults and teens believe “sexual development” begins at birth for “most children aged zero to three will…[e]xperience an erection or vaginal lubrication.” Barbara Huberman, RN, MEd, Director of Education and Outreach October 2002, Advocates for Youth, http://www.themediaproject.com/facts/development/0_3. Huberman is on the Advisory Committee for the National Sexuality Education Standards: Core Content and Skills, K-12. “Actually, Kinsey was the first sex researcher to uncover evidence that violation of the [incest] taboo does not necessarily shake heaven and earth…Pomeroy reports many beautiful romances between father and daughter [participants].” Penthouse magazine, “Incest: The Last Taboo,” December 1977.
[47] David Finklehor, Sexually Victimized Children, at 122-123 (1979). http://drjudithreisman.com/archives/fbi.pdf.
[48] Baskin, at *15.
[49] Id. at *5. See also Kirk and Madsen, After the Ball, (1989) for the discussion of immutability; "Based on their personal experience, most straights probably would put the gay population at 1% or 2%," but when asked, people respond with the "‘10% gay’ statistic which our propagandists have been drilling into their heads for years." at 15. See also summary, id. at 14-16.
[50] Jeffrey Satinover, M.D. Homosexuality and the Politics of Truth, at 113-117 (Baker Books, 1996), citing W. Byne and B. Parsons, Human Sexual Orientation: The Biologic Theories Reappraised, 50 Archives of General Psychiatry, at 228-39.
[51] Love” was never the reason for the marriage contract. The marriage covenant was a business contract which worked to balance the “war between the sexes,” protecting an aging wife/mother and her children against adventurous, fickle or mean-spirited male exploitation. There are no hard data which find celebrating “love” to be the purpose for marriage laws. If “love” were so all-powerful and reliable there would be no need for marriage laws. One can often fall in and out of love with many lovers. To create laws for the purpose of protecting and celebrating “love” would render monogamy--the protection of women and children--null and void.
[52] Posner, Sex and Reason, at 19.
[53] Sexual Behavior in the Human Male, (1948) at 160.
[54] Lawrence v. Texas, 539 U.S. 558 (2003)
[55] Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994)
APPENDIX: TABLE 34,
Sexual Behavior in the Human Male, 1948, page 180