By Alex Giannattasio; his original piece on H.R. 1256 can be read here, at www.JohnsonillePress.com.

This constitutes my second response to Mr. Godshall.

I. Consequences of the FSPTCA for Small Businesses

In his last statement, Mr. Godshall purported that the Family Smoking Prevention and Tobacco Control Act would, “almost certainly will result in most of the smaller manufacturers going out of business, with just several large ones remaining”. This, he supposes, would result from the relatively high cost-per-pack to small tobacco manufacturers for abiding by new FDA regulations. He claims the cost to small manufacturers would run about .50 a pack, as opposed to .02 per pack for the big three (Altria, Reynolds, Lorillard).

I take issue with this claim for three reasons:

1. First, Mr. Godshall should provide citations alongside such strong statistics as these if we are to believe them. Would it really cost small companies 2500% more than large ones? Considering that the primary actions of the Act are the regulation of additive materials to manufactured cigarettes, and the addition of more warning signs to some of the packaging, this seems a suspiciously high cost estimate.

2. But even accepting these widely disparate costs, I see no reason to assume that they would result in “most smaller manufacturers going out of business”. If anything, wildly increasing taxation has jeopardized such companies to an exponentially greater degree (cigarettes in New Jersey now cost upwards of $8.00 a pack). What is more, considering that consumers are still willing to purchase cigarettes from such small manufacturers after nearly two decades of steadily increasing taxations, I wonder at Mr. Godshall’s confidence that a mere .50 cost increase would spell their doom.

3. Further, the bill has made provisions to deal with such a possibility:

The Act “requires the Secretary to: (1) provide a reasonable period for manufacturers to conform to good manufacturing practices; and (2) not require any small tobacco product manufacturer to comply with such regulations for at least four years. Allows the Secretary to grant exemptions and variances from such regulations under certain circumstances.”

Small tobacco is defined by the bill as a manufacturer of 350 employees or less. I contest that the act provides fairly for these businesses by granting them the time they need to adjust to the new standards. In other words, I suspect that this bill will not be devastating to small tobacco companies, as Mr. Godshall contests.

Mr. Godshall also states that the Act will “will also affect growers, leaf processors, wholesalers, distributors, retailers and advertisers”. Surely it will, as markets will have to adjust to new standards. But in all likelihood, that effect will be negligible, compared to the effects of steadily declining sales—the result of twenty years of moral war waged against tobacco companies. If this bill affects the aforementioned industries, it will only be as a result of even fewer sales (to children) which this bill will hopefully produce. We can at least rest assured that the United States government is not moving to take action against the freedom of these business to operate as they do today, as in the case of growers here:

Sec. 4 (b) Agricultural Activities- The provisions of this division (or an amendment made by this division) which authorize the Secretary to take certain actions with regard to tobacco and tobacco products shall not be construed to affect any authority of the Secretary of Agriculture under existing law regarding the growing, cultivation, or curing of raw tobacco.

And in the case of advertisers here:

Sec. 2 (32) The regulations described in paragraph (30) impose no more extensive restrictions on communication by tobacco manufacturers and sellers than are necessary to reduce the number of children and adolescents who use cigarettes and smokeless tobacco and to prevent the life-threatening health consequences associated with tobacco use. Such regulations are narrowly tailored to restrict those advertising and promotional practices which are most likely to be seen or heard by youth and most likely to entice them into tobacco use, while affording tobacco manufacturers and sellers ample opportunity to convey information about their products to adult consumers.

For these reasons, I believe Mr. Godshall’s claims are vastly overblown when he states that, “As applied to cigarette manufacturers, the new FDA tobacco law would be more appropriately called the Altria Monopoly Act, as Altria’s 52% cigarette market share is likely to continue expanding at the expense of hundreds of small cigarette companies.” The bill provides for small business adequately; and besides…what is it to Mr. Godshall which companies succeed, if some teens are prevented from smoking; what does Altria’s market share matter, if the overall market base is drastically reduced; most of all, what does this matter to an individual or organization that would prefer to see cigarettes banned? Perhaps my last question is overstated?

II. Additives and Regulation

Mr. Godshall goes on to decry my hypothesis that added chemicals to cigarette tobacco increase the incidence of disease in smokers, claiming there is no evidence to support the idea. I must admit, I have a hard time not believing it; not because I’m a smoker somehow deluding himself into thinking that additive free tobacco is going to allow me to bypass the health hazards of smoking, but because, as an experienced smoker, I can taste and feel the difference between chemically treated tobacco and additive free tobacco. I base my claims on pure experience of the physical and chemical effects of the two. But if further evidence need be provided, I have already cited this article, which granted is ten years old, but which I believe relates the common sense point that smoking chemicals is necessarily going to devastate the body to a greater degree than simple tobacco: http://news.bbc.co.uk/2/hi/health/background_briefings/smoking/281167.stm. I admit that the act of smoking itself is a health hazard and risky business; but I must say, and you should admit, that if one is to smoke, one should smoke additive free tobacco over chemically treated. I don’t believe I could be convinced otherwise…

Regarding my previous statement that “It is NOT the federal government’s role to dictate nation-wide standards on what we can and cannot consume,” I must hold to it. In fact, this is NOT the primary role of the FDA to regulate CONSUMPTION, but rather only the MANUFACTURE AND PRODUCTION of foods, drugs and cosmetics, which is not the same thing. An outright ban on the production or manufacture of cigarettes is unjustifiable, as this is tantamount to regulating what individuals may and may not consume. But regulation of manufactures means that corporations can’t lie about their products, or sell someone something they don’t know they’re buying, as was the case with cigarettes prior to this bill.

Regarding Mr. Godshall’s claim that:

“And in fact, the additives banned by the new FDA tobacco law affects fewer than 1% of cigarettes in the US market share, with clove cigarettes from Indonesia most affected. In sharp contrast, menthol, which was exempted from the FDA laws’ cigarette additive ban, accounts for 28% of the US market share. The claim that the new FDA tobacco law would eliminate cigarette additives was yet another gross misrepresentation of fact made by proponents of the legislation to demonize cigarette manufacturers in order to gain votes of naïve members of Congress.”

The Act grants the FDA the authority to regulate ANY AND ALL ADDITIVES, excepting tobacco itself, and menthol. This stipulation is broad enough, I believe, to empower the FDA to regulate any and all additive components as it decides to. As my cited article states, that list of potential legal additives might be 600 or more components long. Further, the Act requires the FDA to put out, on a yearly and bi-yearly basis, information outlining all additive components of cigarettes of each and every kind and brand; to conduct studies of its own concerning the negative or negligible effects of each ingredient; and to make all of this information available to the public. One might consider the Act a “Tobacco Manufacturer Transparency Act”. With regards to Menthol, I suppose simply too many people smoke it to ban out right. And there are explicit stipulations in the bill for the FDA to immediately begin studying the effects of menthol in cigarettes (even down to the effects it has on minorities and the underprivileged). It’s not such a bad compromise really. The cigarette companies are allowed to stay in business, on the condition that they not hide information from the public, and that they operate in complete transparency. Clearly, this speaks doom for tobacco use in this country, for all but the hard-core smokers, and additionally provides anti-smoking activists with honest information about smoking for the use of educating the public.

I also want to add that Mr. Godshall would do well to remember that the binding stipulations in this Act are aimed at producing a lasting long-term change. Over the course of the years, more and more will become known about tobacco, and more and more changes in the way it is consumed will be implemented. FDA regulation moves us a huge step along that path. And we should also keep in mind that this bill has been ten years in the works. All things considered, it comes as little surprise that it took so long to be passed through, but that is how the legislative process works (sometimes), and if that’s what it takes to implement the right changes and controls, so be it. Given time, this legislation will prove immensely effective. If it is slightly behind the cutting-edge of the anti-smoking movement, upon which Mr. Godshall sits, it is no less beneficial for that.

III. Mr. Godshall’s Alternative Plan

In truth, Mr. Godshall’s alternative to the Act, as advanced and advocated for by Smokefree Pennsylvania (cited below), is an admirable one: it seeks to make perfectly clear the true and widely accepted science behind tobacco use; we can at least agree that smokefree tobacco products are in fact less dangerous than cigarette smoke. Mr. Godshall advocates for a more pragmatic approach to legislation; tobacco products would be classified according to type, and then addressed individually on the basis of danger to human health. Some alternative nicotine or tobacco delivery methods which can be shown as an effective aid in quitting the most deadly habit of smoking cigarettes would be encouraged, so as to wean the American public onto a lesser of two evils. One can’t help but be reminded of methadone treatment for heroin addicts…though they say quitting cigarettes is harder than heroin.

Although Mr. Godshall’s plan does, I believe, come from a good, more compassionate and pragmatic place, I would suggest that there are two sides to the story. Many antismoking advocates purport a view which holds smoke-free tobacco to be a gateway to the further use of other tobacco products, including cigarettes. It’s a form of the “gateway” theory: much as marijuana is sometimes taken to provide a gateway to other, harder drugs, so smokeless tobacco could acclimate an individual, especially a young individual, to be comfortable with tobacco use, and addicted to nicotine. This behavior, quite obviously could lead to cigarette use. This is the position that the Act takes, and to which Mr. Godshall objects, when it states that smokeless tobacco is not a safer alternative to smoking cigarettes. The provision is NOT inserted as a compromise with Altria and Big Tobacco; rather, it’s a pragmatic attempt at avoiding further teen smoking. At the very least I should make clear that in my last response, while I did proclaim my “selfish bias (for [my] tobacco product of choice)”, my main point regarding smoke-free tobacco was that the issue is two sided, and if we are willing to accept that smoke-free products can and do lead to cigarette smoking or other, more harmful behavior, there is reason to accept strong regulation of it.

As I’ve said, I DO believe Mr. Godshall’s plan is a good one, aimed as it is at educating the public with truth and honest. But at the same time, I do not find the action taken in the Act to be unjust or nefarious. I would suggest that Mr. Godshall’s plan would complement the FSPTCA quite well, so long as he would not completely ban tobacco products outright, nor tax them to an unreasonable degree. But for the most part, it deals with a different realm of concern, one of public education, and so does necessarily overlap with this one, which is regulatory in content and spirit. In other words, there is no reason Mr. Godshall’s ideas about educating the public should interfere with the philosophy behind the smoke-free tobacco stipulations in the FSPTCA (perhaps better, more explicit and mutually acceptable phrases should be applied to such products).

In sum, I maintain that the Family Smoking Prevention and Tobacco Control Act, while not perfect, will produce far more beneficial consequences than negative ones; that it does seek to accomplish admirable goals; that in conjunction with other legislation and the work of nonprofit advocates like Mr. Godshall, it will accomplish these goals; that it is not an unholy, unjustifiable concession to cigarette companies, but a pragmatic and unabashedly forceful compromise. I do believe that Mr. Godshall’s “alternative” ideas are worth considering, but I do not think them a real alternative to this legislation, nor one in conflict with or contrast to it. Mr. Godshall’s solutions are perfect for short-term activity and results—we can agree that his view is superior to the extremist viewpoint he speaks of. But, mark my words, this Act will prove invaluable to organizations like Smokefree Pennsylvania 10 years down the road. I applaud his enthusiasm for the cause, and wish him all the luck in the world in the future. Just don’t take away my smokes!

Alex Giannattasio is the Managing Editor of the Johnsonville Press. His original article on this legislation can be read here at www.johnsonvillepress.com

I want to thank my esteemed opponent for his comprehensive analysis of the Family Smoking Prevention and Tobacco Control Act. As I sat reading his opening remarks (coincidentally, as I enjoyed an additive-free cigarette) I found myself perhaps surprisingly in agreement with many of the claims Mr. Godshall promotes. Broadly speaking, cigarette smoking is the leading cause of disability and death in America; children should be protected from the coercive sales tactics of cigarette companies; and smokefree tobacco products seem to provide a healthier alternative for nicotine users than cigarettes and other smoke-producing tobacco products. Further, we can agree that cigarette smoke and advertising should be banned from indoor public places, especially in proximity to children; that over-taxation is the most effective means of reducing tobacco use; and that this legislation protects the industrial production of tobacco. However, I do not believe that any of these claims provide a basis for the rejection of the Family Smoking Prevention and Tobacco Control Act. On the contrary, the legislation, in conjunction with other measures both past and future, not only provides for the right balance of federal regulation and personal freedom–the very balance that has allowed our country to flourish in the past–but largely stands on constitutionally solid ground.

Tobacco use, as I have said, is an old practice. People have been using and enjoying tobacco for centuries; and why not? For those of us who choose to smoke, even in light of the associated health risks, smoking is a highly enjoyable practice, one for which we are willing to pay exorbitant prices to engage in. And provided we hurt no one else in the process, why should we be prevented from doing so?

Of course, it has been argued that secondhand smoke kills. I am willing to accept this claim, and the resultant conclusion: that our freedom to smoke should be curtailed when it begets harm to non-smokers, who have actively and freely chosen to avoid the practice, in other words, that smoking should be prohibited in indoor public areas, for the benefit and safety of non-smokers. However, smoking out of doors, which has a negligible if any effect on others, does not fall into the bounds of this claim. Even less does smoking in the privacy of one’s own home, where the individual, not the population, not society, is king.

It is NOT the federal government’s role to dictate nation-wide standards on what we can and cannot consume, as individuals. Such practices are paternalistic and reprehensible. However, the Family Smoking Prevention and Tobacco Control Act does not, as Mr. Godshall agrees, do this. Rather, it specifically gives the FDA authority to regulate additive products and chemicals used by tobacco companies to increase the addictive nature and aesthetic quality of their smokes. THESE additives, not the tobacco itself, are the most serious culprits of tobacco-related ailments, and further, they bring little to no benefit to the smoker. It is my feeling that, if asked whether they would object to the illegalization of, for instance, rat poison in cigarettes, few smokers would object. Additive-free tobacco will be exponentially healthier than current cigarettes, albeit still a generally unhealthy practice. To reiterate: SMOKING IN GENERAL IS UNHEALTHY. SMOKING ADDITIVE FREE TOBACCO IS HISTORICALLY MORE HEALTHY THAN SMOKING INDUSTRIAL CHEMICALS. As a smoker, I commit my personal experience to this fact.

I see no reason to believe that smokefree tobacco products would be as harmful as smoke producing products. In fact, it seems only common sense to assume that they would be infinitely healthier. If 85% of the population, as Mr. Godshall claims, are under the mistaken impression that smokefree products are as unhealthy as cigarettes, I would be tempted to point the finger of blame at overly-zealous antismoking advocates, who prefer sweeping statements of condemnation for all smoking (and smokers) to reasonable scientific analysis. Let me add that I do not place Mr. Godshall as among these. But in fact, I do doubt very much that Mr. Godshall is correct in this statistic, and would like to see his source.

Further, Mr. Godshall claims that the FSPTCA commits the sin of condemning smokefree tobacco while protecting cigarettes. We can, I believe, agree that the slogan “This product is not a safe alternative to cigarettes” is mistaken when applied to smokefree cigarettes. But I can think of some very good reason why such new products need to be thoroughly regulated by the FDA. For one, they provide an extremely efficient drug delivery system to the public, prescription free.  In the foreseeable future, such devises could be modified to include other chemical elements beyond nicotine. If this was done, the chemical regulation problem addressed by the FSPTCA could potentially be circumnavigated by manufacturers. As I have stated, it is my belief that it is the additive chemical constituents in cigarettes that serves to make them so lethal, and if steps are not taken to avert the open consumption of poisonous, toxic chemicals (of which organically produced and manufactured tobacco is not one) health in America will potentially be dramatically damaged, as it has been in the past 70 or so years by inorganically manufactured tobacco.

Further, I will add that I do not see in smokefree tobacco products the end-all solution to the “smoking epidemic” that Mr. Godshall sees. In fact, as a smoker, as a consumer, I can say that such products are widely inferior to the actual experience of smoking. In all likelihood, many Americans will inevitably prefer to consumer a tobacco cigarette than a vaporized hit of nicotine. I would also suggest that it is the smoke itself, and the act of smoking, which is more the source of addiction than nicotine itself, which has been compared to caffeine. As such, consumers are unlikely to make a sweeping switch to smokeless tobacco. In addition, smokefree tobacco products, being less pleasurable for consumption, will more likely act as a gateway into cigarette smoking than an exit from it. If the act of smoking itself is as addictive as the chemicals, then getting an individual used to the process of smoking is likely to open the door to other tobacco products. I feel only a non-smoker could see salvation from cigarettes in these nicotine inhalers. Personally, I find the mechanism too effeminate for my tastes. But that’s just me…

Another mistake Mr. Godshall makes is his comment on the age limit applied to smoking. He seems to believe that cigarettes, like alcohol, should not be sold to 18 year olds, but only to 19, 20 or 21 year olds. The reason he sites is the availability of cigarettes provided to high schoolers of all ages through the senior connection. This claim is completely unsound. To begin with a common and well known argument, American citizens old enough to fight and die in war should be allowed the right of control over their own personal consumption–in this country, what is control over their own lives.Further, alcohol and cigarettes are incomparable substances; how many car accidents are caused by smoking and driving? Drunk driving deaths are the legitimate reason for the alcohol age increase, but the same can not be said of cigarettes, which are far less damaging in the short run. But even further, the policies Mr. Godshall seeks to impose are exceedingly paternalistic. Perhaps it’s the fact that I am closer to that age group (I’m 21) than Mr. Godshall, but I can say definitively that regarding younger people, prohibition only serves to tantalize. The best proven way to avoid teen smoking is not through the legislative process, but rather by truthful, honest education. Adolescents need less protection than we tend to give them credit for; all they really need are the tools to make the right decisions, and often they will. In this case, the tool is truthful information. Legislation above and beyond what is now in place will not serve to prevent teen smoking. However, the FSPCTA does address serious concerns about big tobacco’s ability to advertise to our youth, which is akin to undermining honest educational programs, and appeal to children with candy flavored smokes, which is a reprehensible practice.

Mr. Godshall appears to promote these forms of regulation, which I quote from his article:

- eliminating cigarette sales in retail stores frequented by youth,
- increasing the minimum age for cigarette sales above 18 years,
- requiring prescriptions to buy cigarettes (as FDA requires for other harmful drugs), and
- eventually removing cigarettes from the market.

Such regulations are completely contrary to the American way of government. Tobacco is a recreational and relatively benign drug, in that it takes scores of years to produce serious health impacts on most users. Further, tobacco provides few medical benefits to users, and so prescriptions are simply a ridiculous concept for cigarettes. Further, the removal of cigarettes from shelves in certain stores is discriminatory, and restricts freedom in unacceptable ways. Further, removing cigarettes from the shelves is extremely illegal and unconstitutional, in that it restricts our freedom to grow and consume a naturally occurring plant, as is currently the case with marijuana. These unfortunate, fear mongering prohibitions serve to undermine the American spirit, and would be completely unacceptable to the approximately 50 million smokers in this country. I would remind Mr. Godshall that the purpose of American Democracy is to protect the rights of the minority, rather than to impose the will of the majority. For that reason, it is unacceptable for the federal government to impose paternalistic standards of lifestyle upon any members of its population, be it in the restriction of fatty foods, car use, or cigarettes, all of which, when used in moderation, can have negligible health effects. What we need is more communication, more discussion, more education, more freedom, less prohibition.

In contrast to the sort of sweeping federal regulations Mr. Godshall seems to support, I would suggest that the legislative process at the state, or even local levels, are the fairest places for the legislation of tobacco use. If a specific town or state finds it suitable to prohibit tobacco sale in their area, it is no skin off of my nose. Nearly all regulation should take place at the state and local levels, and I applaud lawmakers for enacting a law which does not overstep its constitutional bounds. In fact, it will be local governments, in tandem with local organizations, such as the one to which Mr. Godshall belongs, which are the most acceptable regulators and educators about tobacco use, not the broad and cold network that is the federal government. If Mr. Godshall’s policies were accepted, I, and many other smokers would take serious issue with our sudden inability to disagree with him.

In conclusion, I would remind Mr. Godshall that death is an inevitable part of life. We are all going to die some day. Some of us will die in car and plane crashes, some of us will die from diabetes. Some of us will die young, and some of us will die old. Some of us will die from smoking, and some of us won’t. But the choice of how we live should be our own. I had dinner with my grandfather the other day, a man of 83 years of age, and a smoker of 30. Clearly, the choices he has made in living have led him this far. What right do you have to say he made the wrong choices?

Alex Giannattasio

The Johnsonville Press

Managing Editior

www.johnsonvillepress.com

Alex’s original article on this legislation can be found here, on the Johnsonville Press: http://johnsonvillepress.com/2009/06/smokin-barrels-congress-aims-shots-at-tobacco-manufacturers-alex-giannattasio/

The American legislative process, I believe, can be better understood as a positive force than a negative one. By that I mean, when we judge a piece of legislation as citizens, we should be as or more concerned with what that bill actually does to change our society than with what it fails to do. With this in mind, I propose to focus on the positive (productive) changes established by HR 1256, or the Family Smoking Prevention and Tobacco Control Act, of which there are several.

To begin, the Act deals explicitly with the rights of manufacturers of tobacco products, as opposed to tobacco producers, or farmers, thereby bringing all major cigarette corporations in America under the federal regulation of the FDA. It is important that the regulations only apply to manufacturers; revocation of the freedom to farm a crop, particularly one which has so drastically contributed to the growth of this country, would be an appalling abuse of power by the federal government, thoroughly un-American, and a slap in the face to the 45 million Americans who freely choose to smoke. Prohibition, as we should all know by now, is not the answer—and luckily, this Act does not seek to prohibit tobacco.

The Act’s main goal is to dramatically limit the ability of such manufacturers to add harmful foreign substances to their tobacco products—substances other than tobacco, nicotine and tar, all of which will be found in an organic tobacco product. According to this BBC article, any of at least 600 foreign substances and chemicals may be present in various commercial cigarette brands. The offshoot is that by regulating and prohibiting non-additive-free tobacco products, many of the negative health effects associated with smoking can be avoided altogether. In fact, I would wager, without having any supporting evidence on hand, that the majority of tobacco-related ailments in the non-senior population are caused by foreign additives in manufactured tobacco products. Smoking tobacco has been around for centuries and I guarantee that it provides no real threat to the fabric of society. But the nefarious practice of adding foreign chemicals to tobacco, without so much as labeling the product, is less than a century old. THIS practice does pose a serious threat to society’s health, as the health repercussions of such chemically treated smoking sticks are far worse, far more serious. The chemical additives present in cigarettes are to my mind the main culprit.

As an added bonus, the legislation actively denies tobacco companies old and new the use of misleading marketing tactics directly aimed at the recruitment of young (adolescent) smokers. If used to its maximum potential, HR 1256 will dramatically improve the health of stubborn cigarette smokers, saving billions in healthcare costs in the process, simply by substantially limiting the tobacco industry’s right to lie. That the bill fails to out-rightly prohibit tobacco production, manufacture and use is no failing point; rather, it is a victory for both American freedom and bipartisan compromise. As you can see, I generally support the measures taken in HR 1256…

I agree with what you say.  As a woman of color who was in an interracial marriage, I was shocked to find that until the mid 60’s, my marriage was against the law until the 1967 Supreme Court case of Loving vs. Virginia.

Here is a summary of the case and its outcome:

1
Loving v Virginia 388 U.S. 1 (1967)
1) Reference Details
Jurisdiction: United States of America, Supreme Court
Date of decision: June 12 1967
Case Status: Concluded
Link to full text:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=1
2) Facts
In June 1958, two residents of Virginia, Mildred Jeter, a black woman, and Richard Loving, a
white man, were married in the District of Columbia. Shortly afterwards they returned to
Virginia and were charged with violating Virginia’s ban on interracial marriages. The
Lovings were victims of direct de jure racial discrimination inherent in the Virginia code,
which prohibited marriage between whites and non-whites.
At the time of the case, Virginia was one of 16 states to prohibit and punish interracial
marriages. They pleaded guilty and were sentenced to one year in jail; however, the judge
suspended the sentence for 25 years on the condition that the couple should not return to
Virginia together during that time.
In his dicta the judge expressed the opinion:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on
separate continents. And but for the inference with his arrangement there would be no cause
for such marriages. The fact that he separated the races shows that he did not intend for the
races to mix.”
Following conviction, the Lovings settled in the District of Columbia. In November 1963 the
couple filed a motion in the state trial court to set aside the judgment on the grounds that
the statutes they had violated were unconstitutional and “repugnant to the Fourteenth
Amendment.”
The motion failed. Further appeals followed to the US District Court for the Eastern District
of Virginia, which also rejected the motion, and later to the Supreme Court of Appeals of
Virginia.
In February 1965 the Supreme Court of Appeals upheld the constitutionality of the
miscegenation statutes and affirmed the convictions. The court made reference to its
decision in Naim v Naim (1955) 197 Va. 80, 87 S.E. 2d 749, in which it had held the
miscegenation laws to be legitimate for such purposes as “to preserve the racial integrity of
its citizens,” and to prevent “corruption of blood,” “a mongrel breed of citizens,” and “the
obliteration of racial pride.”
The Lovings appealed again to the US Supreme Court. The court addressed the issue of the
constitutionality of the miscegenation statutes in the light of the Fourteenth Amendment,
which forbids “all invidious racial discrimination.”
2
3) Law
State legislation
• 20-59 Virginia Code, which forbade marriage between whites and non-whites.
• 20-58 Virginia Code, which extended this prohibition to couples who left the state in
order to marry and subsequently returned in cohabitation.
National legislation
Fourteenth Amendment of the United States Constitution, s. 1 (“Equal Protection Clause”)
forbids discrimination between US citizens and affords all citizens the equal protection of
the laws.
4) Legal Arguments
The State of Virginia
The State of Virginia argued that the Equal Protection Clause should require state penal
laws with an interracial element to apply equally to whites and non-whites, so that
respective violations should be punished to the same degree. Therefore, and in reliance on
this, the question of constitutionality became whether any rational basis existed for
different treatment of interracial marriages and other marriages. Given that the “scientific
evidence is substantially in doubt”, the court should defer to the state’s legislative policy.
Finally, Virginia relied on statements present in the Thirty-ninth Congress at the
introduction of the Fourteenth Amendment which indicated that the Framers did not intend
the Amendment to make unconstitutional state miscegenation laws.
5) Decision
Mr Chief Justice Warren delivering the unanimous opinion of the court, stated:
“The clear and central purpose of the Fourteenth Amendment was to eliminate all official state
sources of invidious racial discrimination in the States.”
Subsequently, the “equal application” argument put forward by Virginia was rejected. It did
not exempt the Virginia Code from the prohibition of racial discrimination contained within
the Fourteenth Amendment. In the courts opinion the statutes should not be upheld merely
because of the existence of a rational purpose behind them. Analogous cases involving
discrimination on grounds other than those of race provided no useful guidance in the
present case.
The court declared racial classifications should be subject to the “most rigid scrutiny” and
must be shown to “be necessary to the accomplishment of some permissible state objective.”
On the facts there was “patently no legitimate overriding purpose independent of invidious
racial discrimination which justifie[d] this classification.”
In regards to the statements made in the Thirty-ninth Congress put forward by the State of
Virginia, the court considered that the statements relied on related to specific statutes and
3
not to the broader purpose of the Amendment. Such historical statements were inconclusive
and did not corroborate the state’s “equal application” argument.

It is neither prudent, nor appropriate to treat people differently based on their religion, ethnicity, disability, skin color sexual orientation or any other protected class.

These hundreds and thousands of men and women who wear the uniforms of the respective branches of service, who go to war on behalf of their country, who sacrific their lives in conflict deserve to be treated better than the United States Government presently treats them.

The Supreme Court on Monday turned down a challenge to “Don’t Ask, Don’t Tell” in a case that came to the Court from the First Circuit.  Of course, much of the opinion being spread about it is just plain false.  Legally speaking, even practically speaking, this wasn’t the case people are making it out to be.

So, what is it?

Not much.

The Supreme Court has a docket that is pretty much completely of its own choosing, a process known as certiorari, or cert for short. If the court grants cert, it accepts the case, will receive a full briefing on the issues in the case and decide the merits of the legal issues between the parties.  The action taken today was denial of certiorari, which ultimately means that there were not at least four justices willing to accept the case.

So, Monday’s action was not a decision on the merits of the case; the Supreme Court did not rule on the constitutionality of Don’t Ask, Don’t Tell.

What’s more, the decision, particularly coming right now, likely tells us little about what the members of the Court actually think about the constitutionality of the policy.  Why?  Because a justice, say Justice Ginsburg, might believe the policy is unconstitutional but could vote against cert because she was uncertain of the Court’s other members’ views and did not want to risk losing the argument.  Additionally, with the Court is in the midst of a personnel change, I’d think we’re unlikely to see many high-profile, likely 5-4 outcome case, cert grants before a new justice takes the bench.

Finally, and perhaps most importantly, this case came to the Court with a very odd background posture.  As detailed here, the Servicemembers Legal Defense Network, a legal group dedicated to supporting lesbian and gay soldiers, had been involved in this case, originally representing the 12 individuals challenging the policy.  The organization, however, was no longer representing James Pietrangelo when he sought certiorari.  SLDN continued to represent the other 11 individuals and filed a brief opposing having the Court accept this case.  The lawyers representing the 11 wrote:

Petitioner and the eleven Cook respondents originally filed a single complaint challenging the constitutionality of DADT, on its face and as applied to them.  The district court dismissed the complaint for failure to state a claim, without allowing any opportunity for discovery or the compilation of a factual record.  Petitioner seeks review of the First Circuit’s decision affirming that decision.

The Cook respondents agree that the court of appeals erred; that DADT is not only bad policy but violates, on its face and as applied, the constitutional rights of gay, lesbian, and bisexual Americans; and that the issues at the heart of this case may at some point require resolution by this Court.  If the Court grants review in this case, the Cook respondents will support reversal of the judgment below.  Unlike petitioner, however, the Cook respondents believe the Court would be better advised to defer review at this time.

So, this was not even a case that the legal organization dedicated to helping to overturn this policy — with support from lawyers at WilmerHale — thought should be heard by the Supreme Court.

Then, in an even more odd turn, Pietrangelo filed a brief with the Supreme Court seeking to strike, or toss out, the SLDN brief.  He argued that this should be done because the group had earlier been representing Pietrangelo as well.  SLDN then filed a brief withdrawing from representation of the other 11 individuals, noting that it was doing so “in order to avoid any possibility that this dispute between petitioner and counsel might prejudice either the Cook respondents [the other 11 individuals] or petitioner in this proceeding.”  Substitute counsel replaced SLDN and the WilmerHale lawyers representing the “Cook respondents.”

In short, I don’t think that this is a case that anyone should want to be the Supreme Court challenge to Don’t Ask, Don’t Tell.  The Court is experiencing change in its membership, the factual record is not well-developed (which we definitely want since the factual records in so many of these cases are very compelling, as with the case of Lt. Dan Choi), the 12 individual being kicked out of the military in the case disagree on whether the case should be heard, and the organization existing solely to fight Don’t Ask, Don’t Tell is no longer involved in the case.

Many of us want the repeal of Don’t Ask, Don’t Tell, and we want it now.  But fighting for a bad case to go up to the Supreme Court is neither strategic nor likely to end in success.

Don’t ask, don’t tell – Op-Ed: A Gay Soldier’s Husband

I just watched this video clip on the NY Times and was moved to tears. Why can’t we repeal “Don’t ask, don’t tell.” We had Brown vs. Board of Education and desegregated schools, we gave women the right to vote, we had Loving vs. Virginia and had the supreme court outlaw mysogeny (interracial marriage), so why can’t we outlaw discrimination against gays?

I was having this conversation with a family member recently who is opposed to gay marriage – many years ago, a gay friend quoted me something she had seen on a t-shirt which basically stated that gays won’t marry straights if they are allowed to marry each other.

For 15 years, I was in a marriage where I was unfulfilled, miserable and desperately lonely. The only things my former husband and I had in common were our deep and abiding faith in the Mormon Church and our four remarkable boys.

The pain and anguish that I felt when he finally came out still cause me to tear up on occasion to this day – I remember telling him – I didn’t care that he was gay, but I did care that he lied to me – he was supposed to be my best friend. Those feelings hold true today – we are friends – no longer as close as we were, there has been way too much pain and betrayal, but we maintain a friendship for the sake of our children.

Unless people have been on my side of the equation, they should stop speaking out against gay marriage.

The couple who were so beautifully portrayed in this video are a regular couple (the individual in the military is in Iraq and was not able to be videotaped) – they live in a beautiful home, but when they write letters to each other, they have to censor them and be so careful about what they write, lest someone should find out their secret.

It is time to repeal Don’t ask, don’t tell – it is not working, it is unamerican and unconstitutional.