The judge's decision in Gay Lesbian Bisexual Alliance v. the Attorney General of the State of Alabama, et al., handed down January 29, 1996, in the District Court of the United States for the Middle District of Alabama, Northern Division. (Posted January 31, 1996)
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
FILED
January 29, 1996
Clerk
U.S. DIST. COURT
MIDDLE DIST. OF ALA.
GAY, LESBIAN BISEXUAL
ALLIANCE,
Plaintiff
v. CIVIL ACTION NO. 93-T-1178-N
JEFF SESSIONS, in his official
capacity as Attorney General
of the State of Alabama;
et al.,
Defendants
MEMORANDUM OPINION
The Alabama public funds and facilities statute, Section 16-1-28
of the Alabama Code 1975 (Michie 1995), as summarized in its
preamble, "prohibit[s] any college of university from spending
public funds or using facilities, directly or indirectly, to
sanction, recognize or support any group that promotes a
lifestyle or actions prohibited by the sodomy and sexual
misconduct laws" and "prohibit[s] any group from permitting or
encouraging its members or others to engage in or provide
materials on how to engage in the lifestyle or actions."(1)
Plaintiff Gay Lesbian Bisexual Alliance (GLBA), a student
organization at the University of South Alabama, challenges the
constitutionality of this statute, both facially and as applied
to it by the university, under the first and fourteenth
amendments to the United States Constitution, as enforced through
42 U.S.C.A. Section 1983 (West 1994). GLBA seeks declaratory and
injunctive relief and has named as defendants the Attorney
General of the State of Alabama and the President and the Dean of
Students of the University of Alabama. The jurisdiction of the
court has been properly invoked pursuant to 28 U.S.C.A. Sections
1331 (West 1994), 1343(a)(3) (West 1994). For the reasons that
follow, the court holds that Section 16-1-28, facially and as
applied GLBA, violates the first and fourteenth amendments.
I.
A.
Subsection (a) to Section 16-1-28 provides that "No public funds
or public facilities shall be used by any college or university
to, directly or indirectly, sanction, recognize, or support the
activities or existence of any organization or group that fosters
or promotes a lifestyle or actions prohibited by the sodomy and
sexual misconduct laws."(2) Subsection (b) provides that "No
organization or group that receives public funds or uses public
facilities, directly or indirectly, at any college or university
shall permit or encourage its members or encourage other persons
to engage in any such unlawful acts or provide information or
materials that explain how such acts may be engaged in or
performed." And Subsection attempts to save the statute from
constitutional invalidity by providing that it "shall not be
construed to be a prior restraint of the first amendment
protected speech." and "shall not apply to any organization or
group whose activities are limited solely to the political
advocacy of a change in the sodomy and sexual misconduct laws of
this state."
B.
In the fall of 1991, the Student Government Association at Auburn
University (Auburn SGA) voted to deny the Auburn Gay and Lesbian
Association permanent status as an officially recognized campus
organization.(3) In explaining its action, the Auburn SGA stated
that the "group does not meet the idea[l]s entrusted to the
Student Senate on behalf of the students at Auburn" and
specifically referred to the laws "prohibiting sodomy and sexual
misconduct."(4) The Auburn administration overruled the decision
and recognized the Gay and Lesbian Association as a chartered
student organization and, despite further appeals from alumni and
other groups, reaffirmed its decision.(5)
In response the these events, which had become the subject of
much public discussion across the state, the Alabama House passed
a resolution supporting the Auburn SGA and denouncing the
university's official recognition of the Gay and Lesbian
Association. The resolution stated, in part, "That the House of
Representatives of Alabama does not condone violations of the
laws of the State of Alabama, nor does it recognize a homosexual
life style as an acceptable or legal alternative life style, but
rather acknowledges that the State of Alabama is and resolves
that it shall remain, historically traditional in its view of the
family, and that the State of Alabama is a place where families
can live and grow without being debased or immoralized."(6) The
Alabama Senate passed a similar resolution.(7) The Alabama
legislature passed Section 16-1-28.
According to press accounts and statements of representatives,
the legislature's intent was to suppress the official presence
and voice of gay and lesbian groups at state supported colleges
and university campuses.(8) Members of the Auburn Student
Government Association lobbied for the bill, and one state
representative went so far as to use an effeminate voice,
imitating the "stereotypical image" of a gay man, when he joked
with his colleagues to vote no.(9) A representative's press
release stated: "who in their right mind would put [homosexuals]
in any position within our educational system where they might
become role models of the young[;] ... can anything destroy the
possibility of happiness for a young person more than turning him
or her away from traditional marriage and family life, to the
dismal sewers of sodomy and lesbianism."(10) While the statute
was pending before the Legislature, the State Attorney General
issued an opinion advising a representative that "an organization
that professes to be comprised of homosexuals and/or lesbians may
not receive state funding or use state-supported facilities to
foster or promote those illegal, sexually deviate activities
defined in the sodomy and sexual misconduct laws."(11)
C.
The University of South Alabama encourages a wide variety of
student groups to be active on its campus.(12) The university
believes that the activity of student groups "enhances the life
on campus."(13) It is also committed to freedom of expression
and, in particular, academic freedom.(14) Based on these
precepts, the university has set up a procedure for the formation
and registration of student organizations.(15) Once registered, a
student group enjoys various benefits at the school, including
use of the meeting rooms in the school recreation center,
on-campus banking services, and direct university funding through
the Student Government Association (USA-SGA).(16) There are over
100 registered student organizations at the university.(17)
The GLBA at the University of South Alabama is an officially
recognized student organization whose purpose, according to its
constitution, is to provide support for the university's
homosexual students and to educate the public on homophobia.(18).
GLBA does not advocate the violation of the sodomy statutes.(19)
And as far as the Dean of Students Dale T. Adams is aware, the
group's members have not violated Alabama's sodomy and sexual
misconduct statutes, nor has the group interfered with the
university's educational mission.(20) In fact, according to Dean
Adams, the GLBA has made a contribution to the university in the
areas of HIV awareness and AIDS education, support for gay,
lesbian, and bisexual students, and in educating other students,
faculty, and staff about issues pertaining to homosexual
life.(21)
In the spring of 1992, when Section 16-1-28 was before the State
Legislature, Dean Adams attended a GLBA meeting and suggested
that the group lay low in light of the Auburn controversy and
cancel a planned dance celebrating its first year of
existence.(22) Adams advised GLBA to wait until the Legislature
had concluded its deliberating on the statute. Because the group
wanted to maintain good relations with the dean and the school,
it agreed to cancel the dance.(23)
In June of 1992, after Section 16-1-28 had become law, GLBA
requested a university bank account.(24) The group wanted to take
advantage of the USA-SGA funding process and to avoid commercial
banking fees. The university advised GLBA that any funds could be
frozen under the school's interpretation of Section 16-1-28, and
thus the university effectively denied GLBA an on-campus bank
account.(25)
GLBA has also been denied funding. In the fall quarter of 1992,
GLBA requested $00 to cover publicity costs for World AIDS Day
events.(26) Dean Adams advised the group that the USA-SGA could
not fund the GLBA until he received an opinion from the State
Attorney General on Section 16-1-28's application; instead, he
arranged for the USA-SGA to pay directly for the printing of
campus posters.(27) During the winter quarter of 1993, GLBA
requested $884 from the USA-SGA, $825 of which was to bring a
guest speaker to campus. The USA-SGA executive council approved
$651 for the group, but the USA-SGA senate never voted on this
request because Dean Adams instructed the USA-SGA to table the
request. Deans Adams informed the group once more that he could
not allow any funding of the GLBA until he received an opinion
from the Attorney General.(28) This lack of funding forced GLBA
to cancel its planned speaker, who was scheduled to make a
presentation on gay and AIDS-related legal issues.(29)
In the spring of 1993, GLBA submitted another funding request for
$720 to the USA-SGA. The USA-SGA senate, despite Dean Adams's
prior advice, voted to approve $570 in order to bring a speaker
to campus because it believed that GLBA's planned educational
program had merit and deserved funding. Dean Adams refused to
approve the final payment of this money.(30) During the summer of
1993, GLBA submitted a dramatically scaled down budget of
$198.85. GLBA received only $16.31 to cover the costs of printing
award certificates.(31)
Finally, in July 1993, the Attorney General issued a "letter
opinion" regarding GLBA's receipt of USA-SGA funds under Section
16-1-28. The letter opinion, without specifying how or why the
GLBA and its activities violated Section 16-1-28, stated that the
group could not receive any funds.(32) Because the Attorney
General had failed to provide any definition or guidance on what
the words "foster" and "promote" in Section 16-1-28 meant and how
or why funding GLBA would violate the statute, the university
initiated an independent fact-finding process. Dean Adams
selected a group of faculty, staff, and students to determine if
and how GLBA and its members violated Section 16-1-28 by
"fostering" or "promoting" a life-style or actions prohibited by
the sodomy and sexual misconduct laws.(33) This investigation
into the lives of group members affected GLBA's ability to
maintain and increase its membership.(34) Furthermore, the
USA-SGA will no longer approve GLBA funding requests because
many of its members are afraid that they may be breaking the
law.(35) These actions have hindered GLBA's ability to function
as a student group, to sponsor events and speakers, and to
attract new and maintain old members.(36)
In conclusion, as a result of the enforcement of Section 16-1-28,
GLBA has been denied on-campus banking facilities, disqualified
from receiving funding, and subjected to an intrusive and highly
personal fact-finding investigation. In addition, although the
university has not prevented GLBA from meeting in campus
facilities or from being recognized as an official student group,
the group is still considered by the Attorney General and
university officials as failing within the prohibitions of
Section 16-1-28 and thus not entitled to sue university
facilities.
II.
The first amendment provides that "Congress shall make no law ...
abridging the freedom of speech ... or the right of the people
peaceably to assemble." U.S. Const. amend. I. (West 1987). This
amendment is applicable to the states through the fourteenth
amendment. Gitlow v. New York, , 268 U.S. 652, 666, 45 S.Ct. 625,
630 (1925). GLBA claims that Section 16-1-28, facially and as it
has been applied to GLBA, violates the first amendment.
A.
The outcome of this case is significantly guided, if not
determined, by the recent opinion of the Supreme Court in
Rosenberger v. Rector & Visitors of Univ. of Va., ___ U.S. ___,
115 S.Ct. 2510 (1995). There, the University of Virginia had
denied disbursal of money from a student activities fund to a
student group which published a news paper with a Christian
editorial viewpoint. The student organization claimed that the
denial of funds amounted to viewpoint discrimination in violation
of the first amendment. In upholding the claim, Justice Kennedy,
writing for the Court, reaffirmed certain broad principles: "It
is axiomatic that the government may not regulate speech based on
its substantive content or the message it conveys. ... Other
principles follow from this precept. In the realm of private
speech or expression, government regulation may not favor one
speaker over another. ... Discrimination against speech because
of its message is presumed to be unconstitutional. ... When the
government targets not subjects matter but particular views taken
by speakers on a subject, the violation of the First Amendment is
all the more blatant. ... Viewpoint discrimination is thus an
egregious form of content discrimination. The government must
abstain from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the
rationale for the restriction." Rosenberger, ___ U.S. at ___, 115
S.Ct. At 2516.
The Rosenberger Court then narrowed its focus and wrote: "These
principles provide the framework forbidding the State from
exercising viewpoint discrimination, even when the limited public
forum is one of its own creation. ... Once it has opened a
limited forum the State ... may not ... discriminate against
speech on the basis of its viewpoint." Id. at ___, 115 S.Ct. At
2517. Moreover, the danger to free speech which these principles
seek to contain "is especially real in the University setting,
where the State acts against a background and tradition of
thought and experiment that is at the center of our intellectual
and philosophic tradition. ... For the University, by regulation,
to cast disapproval on particular viewpoints of its students
risks the suppression of free speech and creative inquiry in one
of the vital centers for the nation's intellectual life, its
college and university campuses." Id. at ___, 115 S.Ct. At 2520.
The Court concluded that, having made funds available to varied
and differing student organizations "to convey their own
messages, the University may not silence the expression of
selected viewpoints." Id. at ___, 115 S.Ct. At 2519.
Section 16-1-28 similarly violates the first amendment. It
provides that State colleges and universities, although making
their facilities and funds available to various and differing
student organizations to convey their own messages, must silence
the expression of one, and only one, viewpoint. This is
self-evident from the plain language of the statute. The statute
prohibits only those groups that "foster" and "promote" a
"lifestyle or actions prohibited by the sodomy and misconduct
laws" from using public funds and facilities; groups that
"oppose" such "lifestyle or actions" would not fall within its
prohibition. Thus, a student organization that sought to sponsor
a debate on the morality of various types of sexual conduct could
risk being barred from using campus facilities because the debate
could include the view that certain sexual conduct, including
conduct prohibited by the State's sexual misconduct laws, is
moral. On the other hand, a group that sought to invite someone
to speak solely on the immorality of such conduct would not run
that risk. The statute is therefore limited in application to
restricting only the viewpoint of those who foster and promote
the prohibited "lifestyle or actions." This is naked viewpoint
discrimination.(37)
The statute further states that "No organization or group that
receives public funds or uses public facilities, directly or
indirectly, at any college or university shall permit or
encourage its members or encourage other persons to engage in any
such unlawful acts or provide information or materials that
explain how such [unlawful] acts may be engaged in or performed."
The statute therefore attempts to impose on a group that receives
public funds or uses public facilities the State's viewpoint
regarding certain lifestyles and actions and to require that that
group and its members conform their speech to this viewpoint.(38)
The statute further attempts to dictate the information, and even
the actual words, that may not be used to convey an idea or
belief. This too is viewpoint discrimination. A viewpoint may
include not only what a person says but how she says it. For
example, as the defendants admitted at oral argument, the State
does not seek to ban discussion about sexually transmitted
diseases; rather, it only seeks to limit how such diseases may be
discussed. In other words, the State seeks to impose its
viewpoint on how the discussion may proceed.(39)
And finally, the statute states that its prohibitions "shall not
apply to any organization or group whose activities are limited
solely to the political advocacy of a change in the sodomy and
sexual misconduct laws of this state." It thus attempts,
remarkably, to define an area of permissible speech, thought, and
belief. This subsection, read in conjunction with the preceding
subsections, leaves no doubt that the statute constitutes
viewpoint discrimination.
This conclusion is reinforced by the history of Section 16-1-28.
The statute was passed in the wake of the State Legislature's
displeasure with the decision of Auburn University to allow a
group addressing homosexual issues to be formed on campus. Public
statements made by legislators reflect that the intent behind the
statute was to prohibit and discourage the formation of such
groups on college and university campuses.(40) And the
"lifestyle" condemned in the statute clearly refers to the
"homosexual lifestyle" condemned in the resolution passed by the
State House just before the introduction of the legislation that
would become the statute.(41) Finally, that the State Attorney
General and officials at the University of South Alabama have
limited the statute's application at the university to only GLBA,
an organization that addresses homosexual issues, removes any
doubt about the statute's intent. This history reflects an open
effort by the State Legislature to limit the sexuality discussion
in institutions of higher learning to only one viewpoint: that of
homosexual people. This viewpoint limitation violates the first
amendment. See, e.g., Gay Student Servs. v. Texas A & M Univ.,
737 F2d 1317 (5th Cir. 1984) (denying homosexual group official
recognition at state university violated group's first amendment
rights), cert. denied, 471 U.S. 1001, 105 S.Ct. 1860 (1985); Gay
Lib. v. Univ. of Missouri, 558 F.2d 848 (8th Cir. 1977) (denying
gay group formal recognition on same basis as other campus groups
violated group's first amendment associational rights), cert.
denied, 434 U.S. 1080, 98 S. Ct. 1276 (1978); Gay Alliance of
Students v. Matthews, 544 F.2d 162 (4th Cir. 1976) (denying gay
association's registration and resulting privileges violated
group's first and fourteenth amendment rights), Gay Students
Organization of the Univ. of New Hampshire v. Bonner, 509 F.2d
652 (1st Cir. 1974) (prohibiting gay group from holding social
events on campus violated group's associational rights);
Department of Educ. v. Lewis, 416 So. 2d 455 (Fla. 1982)
(striking down as unconstitutional statute similar to section
16-1-28).
B.
The defendants contend that the State should not be required to
support, and in particular to fund, the viewpoint of an
organization. They rely primarily on Rust. v. Sullivan, 500 U.S.
173, 111 S.Ct. 1759 (1991), where the Supreme Court held that the
government could prohibit health care providers who received
funds from a specific government program from discussing abortion
with their parents.
In Rosenberger, a similar argument was advanced. The University
of Virginia urged that the "case involves the provision of funds
rather than access to facilities"; that "the State must have
substantial discretion in determining how to allocate scarce
resources to accomplish its educational mission"; and that
"content-based funding decisions are both inevitable and lawful."
___ U.S. at ___, 115 S.Ct. at 2518. The Court expressly rejected
this argument. It acknowledged that "when the State is the
speaker, it may make content-based choices. When the University
determines the content of the education it provides, it is the
University speaking, and we have permitted the government to
regulate the content of what is or is not expressed when it is
the speaker or when it enlists private entities to convey its own
message." Rosenberger, ___ U.S. at ___, 115 S.Ct. at 2518. The
Court emphasized, however, that viewpoint-based restrictions are
not "proper when the University does not itself speak or
subsidize transmittal of a message it favors but instead expends
funds to encourage a diversity of views from private speakers. A
holding that the University may not discriminate based on the
viewpoint of private persons whose speech it facilitates does not
restrict the University's own speech ... ." Id. at ___, 115 S.
Ct. at 2519.
The Court also refused to accept "that, from a constitutional
standpoint, funding of speech differs from provision of access to
facilities because money is scarce and physical facilities are
not." Id. "Beyond the fact that in any given case this
proposition might not be true as an empirical matter, the
underlying premise that the University could discriminate based
on viewpoint if demand for space exceeded its availability is
wrong as well. The government cannot justify viewpoint
discrimination among private speakers on the economic fact of
scarcity." Id. Instead, it would be "incumbent on the State ...
to ration or allocate the scarce resources on some acceptable
neutral principle ... ." Id. Otherwise, "scarcity would give the
State the right to exercise viewpoint discrimination that is
otherwise impermissible." Id. A fund "is a forum more in a
metaphysical than in a spatial or geographic sense, but the same
principles are applicable." Id. at ___, 115 S.Ct. at 2517.
Finally, the Rosenberger Court distinguished Rust with the
observation that "There, the government did not create a program
to encourage private speech but instead used private speakers to
transmit specific information pertaining to its own program."
Id. at ___, 115 S.Ct. at 2519.
The fact that the State finds the ideas advanced by a group to be
unpopular or offensive does not warrant an exception. "If there
is a bedrock principle underlying the first amendment, it is that
the government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable."
Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 2545
(1989). See also FCC v. League of Women Voters of California,
468 U.S. 364, 383-84, 104 S.Ct. 3106, 3119 (1984) ("A regulation
of speech that is motivated by nothing more than a desire to
curtail expression of a particular point of view on controversial
issues of general interest is the purest example of a law ...
abridging the freedom of speech, or of the press") (internal
quotation omitted); Papish v. Board of Curators of Univ. of
Missouri, 410 U.S. 667, 670, 93 S.Ct. 1197, 1199 (1973) (per
curiam) ("the mere dissemination of ideas -- no matter how
offensive to good taste -- on a state university campus may not
be shut off in the name alone of 'conventions of decency'").
C.
The defendants contend that the State has the right to enact laws
that prohibit "aiding, furthering, or abetting" violation of
State sodomy and sexual misconduct laws.(42) They contend that
because there is no fundamental right to engage in sodomy or
sexual misconduct, Bowers v. Hardwick, 478 U.S. 186, 106 s. Ct.
2841 (1986), advocating such conduct may be prohibited by state
law. The defendants seek to equate Section 16-1-28 with inchoate
criminal statuses -- for example, Alabama Code 1975 Section
13A-4-1 (Michie 1994) (criminal solicitation), Section 13A-4-3
(criminal conspiracy). They argue that "if a person whose sexual
orientation is admittedly 'gay' or 'lesbian' and thus is
'homosexual,' and since homosexual conduct is not a fundamental
right and it may constitutionally be classified as criminal
misconduct, why is the plaintiff trying to put its members 'above
the law' by trying to convince this Honorable Court that they
should somehow be immune from the enforcement of an inchoate
statute which is corollary to the criminal sodomy status."(43)
If Section 16-1-28 is a inchoate criminal statute, it goes too
far in prohibiting mere advocacy -- that is, the mere verbal
fostering or promoting -- of criminal conduct. In Brandenburg v.
Ohio, 395 U.S. 444 89 S.Ct. 1827 (1969) (per curiam), the Supreme
Court overturned the conviction of a member of the Ku Klux Klan
for merely advocating the propriety of violence and other social
means to accomplish social reform. The Court wrote that "the
constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed
to inciting or producing imminent lawless action and is likely to
incite or produce such action." Brandenburg, 395 U.S. at 447, 89
S.Ct. at 1829. See also Noto v. United States, 367 U.S. 290,
297-298, 81 S.Ct. 1517, 1521 (1961) ("the mere abstract teaching
... of the moral propriety or even moral necessity for a resort
to force and violence, is not the same as preparing a group for
violent action and steeling it to such action.") Similarly and
more to the point, in Healy v. James, 408 U.S. 169, 180-81, 92
S.Ct. 2338, 2345-45 (1972), the Court rejected an attempt by a
university to deny recognition to a student organization,
Students for a Democratic Society, because its parent
organization allegedly advocated disruptive and illegal actions.
The Court wrote that "The critical line heretofore drawn for
determining the permissibility of regulation is the line between
mere advocacy and advocacy 'directed to inciting or producing
imminent lawless action and ... likely to incite or produce such
action.'" Healy, 408 U.S. at 188, 92 S.Ct. at 2350 (quoting
Brandenburg, 395 U.S. at 447, 89 S.Ct. at 1829).
"A statute which fails to draw this distinction impermissibly
intrudes upon the freedoms guaranteed by the First and Fourteenth
Amendments. It sweeps within its condemnation speech which our
Constitution has immunized from governmental control."
Brandenburg, 395 U.S. at 448, 89 S.Ct. at 1830. Section 16-1-28
does not draw this distinction. It is not limited to advocacy
"directed to inciting or producing imminent lawless action and
... likely to incite or produce such action." Brandenburg, 395
U.S. at 447, 89 S.Ct at 1829. Indeed, it attempts to draw within
its reach even a "lifestyle," which in some instances could
require little more than a frame of mind.
In any event, GLBA has not fostered or promoted the violation of
state sodomy and sexual misconduct laws. And yet Section 16-1-28
has been applied to the group to deny it full benefits as a
student organization at the University of South Alabama. The
application of the statute to the group is undoubtedly illegal.
D.
The defendants contend that the government has a compelling
interest in promoting marriage and the procreation of children,
in enforcing Alabama's sexual misconduct statutes, and in
prohibiting the transmission of sexual diseases.(44) Although
this may be true, these arguments, even taken together, do not
justify Section 16-1-28. Even when the State has a compelling
interest in an idea, it still may not exclude viewpoints with
which it disagrees from the debate about the idea. In Lamb's
Chapel v. Center Moriches Union Free School Dist., 508 U.S. ___,
113 S.Ct. 2141 (1993), a school district has opened school
facilities for use after school hours by community groups for a
wide variety of social, civic, and recreational purposes. The
district, however, had enacted a formal policy against opening
facilities to groups for religious purposes. The Supreme Court
condemned this policy, stating: "[I]t discriminates on the basis
of viewpoint to permit school property to be used for the
presentation of all views about family issues and child-rearing
except those dealing with the subject matter from a religious
standpoint." 508 U.S., at ___, 113 S.Ct., at 2145. Similarly, in
this case, Section 16-1-28 discriminates on the basis of
viewpoint to permit universities and colleges to allow themselves
to be used for the presentation of all views about social,
sexual, and family issues except those dealing with the
subject-matter from the standpoint of those who are homosexual
or are concerned about issues to do with homosexual people.
The defendants further argue that "a speech or presentation ...
promoting or fostering homosexual misconduct" would be "very
elaborately, very graphically, and very explicitly vulgar and
lewd" and the State has an interest in prohibiting speech that is
"vulgar and lewd."(45) However, arguably a speech or presentation
opposing, or simply discussing, what the defendants call
"homosexual misconduct" could be equally "very elaborately, very
graphically, and very explicitly vulgar and lewd," and yet it
would not be prohibited by Section 16-1-28. Section 16-1-28 is
not aimed at vulgar and lewd speech, but rather at the promotion
or fostering of a type of speech. In any event, defendants have
not provided an evidentiary basis to support its contention that
speech about "homosexual misconduct" would necessarily be lewd
and vulgar, regardless of whether the speech is fostering,
opposing, or simply discussing such conduct.
III
In conclusion, the court holds that Section 16-1-28, facially and
as applied to GLBA, violates the first amendment.(46) Although
GLBA seeks both injunctive and declaratory relief, only
declaratory relief will be entered. The court has no reason to
believe that defendants will enforce the statute in violation of
a declaration of invalidity. However, jurisdiction will be
retained should an injunction or other supplemental relief become
necessary.
An appropriate judgment will be entered.
DONE, this the 29th day of January, 1996.
UNITED STATES DISTRICT JUDGE
END NOTES
1. Joint Record, volume one (hereinafter JRI) at 0043 (the
statute uncodified).
2. The sodomy and sexual misconduct laws referred to are Sections
13A-6-63, 13A-6-64 and 13A-6-65 of the Code of Alabama 1975
(Michie 1994). Generally, they make "deviate sexual intercourse"
illegal. "Deviate sexual intercourse" is defined as "Any act of
sexual gratification between persons not married to each other
involving the sex organs of one person and the mouth or anus of
another." Section 13A-6-60(2) of the Code of Alabama 1975 (Michie
1994). These sections outlaw, among other things, forcible acts
of "deviate sexual intercourse" (Section 13A-6-65 (a)(1); such
acts with a minor or someone incapable of consent (Sections
13A-6-63 & 13A-6-64); the consent of a female under certain
circumstances, including where the consent of a female is
obtained through fraud or artifice by the male (Section
13A-6-65(a)(1)); and consensual oral or anal intercourse between
any two unmarried persons -- of the same or of different genders
(Section 13A-6-65(a)(3)). According to the commentary to Section
13A-6-65, subsection (a)(3) "make[s] all homosexual conduct
criminal, and consent is no defense." Section 13A-6-65 of the
Code of Alabama 1975 (Michie 1994) (commentary at p. 374).
3. JRI at 0082.
4. Id. at 0082-83.
5. Id. at 0080-85.
6. Id. at 0048.
7. Id. at 0046.
8. Id. at 0192-97.
9. Id. at 0196.
10. Id. at 0062.
11. Id. at 0060.
12. Adams's dep. At 12 (filed March 18, 1994).
13. Id.
14. JRII at 0510.
15. Id. at 0483.
16. Id. at 0484-85, 0506.
17. Id. at 0518-26, 0562.
18. The GLBA's constitution provides that the group's purpose is
"to provide a foundation for unification for homosexual and
nonhomosexual people of the student population, in order to draw
support to further our efforts in educating all members of the
university community on the fears and dangers of homophobia and
to provide a support system for the University of South Alabama's
homosexual students." JRII at 311.
19. The GLBA has never lobbied for nor advocated repeal of
Alabama's sodomy laws, nor is violating these laws one of its
purposes or goals. JRI at 215.
20. Adams's dep. at 26-27 (filed March 18, 1994).
21. Id.
22. Id. at 42; JRI at 0219.
23. JRI at 0219.
24. JRII at 0327.
25. The defendants disagree with GLBA's characterization of
Adams's advice. The defendants contend that Adams advises all
groups that their funds may be subject to government action once
deposited on campus. Upon independent review of Adams's
deposition, the court finds that Adams's advice to GLBA that all
of its funds might be frozen was unique to them and was motivated
by his interpretation of Section 16-1-28.
26. JRII at 0333-34.
27. JRI at 0221.
28. Id. at 0222-23.
29. Id. at 0224.
30. JRII at 0433, 448; JRI at 0224-25.
31. JRI at 0227.
32. Id. at 0210.
33. JRII at 0456.
34. JRI at 0216-17.
35. JRI at 0231-32.
36. JRI at 0228.
37. From this facial perspective, Section 16-1-28 could be read
to apply to speech touching on issues of heterosexuality as well
as homosexuality. However, as explained later, it is undisputed
that the statute is intended to target only speech concerning
issues of homosexuality.
38. This provision, which essentially requires that groups that
receive public funds or use public facilities must exclude
members who violate Section 16-1-28 or the State sodomy and
sexual misconduct laws, violates associational rights as well. In
other words, under Section 16-1-28, a group that fails to exclude
such a member would be guilty of violation of the statute merely
by association with that member. "[I]t has been established that
guilt by association alone, without [establishing] that an
individual's association alone poses the threat feared by the
Government,' is an impermissible basis upon which to deny First
Amendment rights." Healy v. James, 408 U.S. 169, 186, 92 S.Ct.
1338, 1348 (1972) (quoting United States v. Robel, 389 U.S. 258,
265, 88 S.Ct. 419, 424 (1967)).
39. Surely, the State, in an effort to curtail crime, could not
pass a law banning from public facilities groups that sought to
put on plays and readings that included descriptions of how to
commit murders or robberies.
40. Indeed, in the joint brief filed by the Attorney General and
the South Alabama officials, they state that "USA [University of
South Alabama] concurs that the law appears to have been intended
by the Alabama Legislature to address gay and lesbian student
organizations at Alabama's public colleges and universities," and
thus the defendants do "not deal with the underlying circumstance
which may have precipitated passage of the challenged statute."
Defendants' brief at 14.
41. Although the statute by implication and legislative
resolutions expressly refer to a "homosexual lifestyle," the
court should not be understood to imply that there is in fact
such a thing as a "homosexual lifestyle." There is nothing before
the court, and the court is not otherwise aware of any study or
evidence, that would indicate that homosexual people manifest any
different range of lifestyles from that of heterosexual people.
42. Defendants' brief at 43.
43. Id. at 43-44, 72.
44. Defendants' brief at 54.
45. Defendants' brief at 38.
46. GLBA further claims that the statute is unconstitutionally
vague and overbroad. Although the court agrees with GLBA, it need
not reach these claims. The court also need not reach the group's
claim that the statute has been discriminatorily applied to it in
violation of its members' right to equal protection of the law.
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
FILED
January 29, 1996
Clerk
U.S. DIST. COURT
MIDDLE DIST. OF ALA.
GAY, LESBIAN BISEXUAL
ALLIANCE,
Plaintiff
v. CIVIL ACTION NO. 93-T-1178-N
JEFF SESSIONS, in his official
capacity as Attorney General
of the State of Alabama;
et al.,
Defendants
JUDGMENT
In accordance with the memorandum opinion entered this date, it
is the ORDER, JUDGMENT, and DECREE of the court:
(1) That judgment is entered in favor of plaintiff Gay Lesbian
Bisexual Alliance and against defendants Attorney General of the
State of Alabama, President of the University of South Alabama,
and Dean of Students of the University of South Alabama; and
(2) That it is DECLARED that Section 16-1-28 of the Alabama Code
1975 (Michie 1995) violates the first amendment to the United
States Constitution, as enforced through 42 U.S.C.A. Section 1983
(West 1994).
It is further ORDERED that jurisdiction is retained should an
injunction or other supplemental relief becomes necessary.
It is further ORDERED that costs are taxed against the
defendants, for which execution may issue.
DONE, this the 29th day of January, 1996.
UNITED STATES DISTRICT JUDGE