Tag: law

  • The Paintings Have Been Drinking (Not Me)

    Travel back with me, if you will for just a moment, to those happy, halcyon days of the year 2001. Oh, what a time to be a young American artist it was!

    The world waited breathlessly for the final bombshell in Matthew Barney’s Cremaster film cycle to drop (spoiler: Gary Gilmore did it!), and your hipper, richer, better-looking friends were cashing in their trust funds and moving en masse to some sort of Italian-speaking suburb of Manhattan called Williamsburg. Fashionable young men were rapidly perfecting the art of ironic facial hair, and their female counterparts had finally harnessed the unstoppable power of the knee-high boots/vintage skirt/wrinkled Mogwai t-shirt combination.

    Oh, what a time to be a young American artist it was!

    Amidst all of this excitement and bustle, your humble correspondent was an apple-cheeked 21-year old BFA candidate in Louisville, Kentucky, learning the twins arts of oil painting and quoting Foucault in the course of casual conversation (the latter being a skill set I still have yet to master). Like the rest of my newly-legal art school peers, I typically spent one or two Friday nights a month out viewing challenging video installations and half-baked performance art in the upstairs loft of a decrepit Clay Street warehouse or a little Frankfort Avenue storefront (the former being a favorite target of the Louisville Metro Police Department for repeatedly violating local noise ordinances).

    What was it that brought me out to those openings, weekend after weekend? Was it the thrill of newness? The excitement of being part of a community? The chance to hobnob with successful young emerging artists? The opportunity to meet prominent local gallery owners eager to display my crappy paintings of cigarette butts?

    Well, sort of. But not entirely. Truthfully, I was there mostly because these spaces usually served free Falls City Beer at their openings. I expect many of my peers were also there for the same reason.

    Now of course this isn’t the only reason I went to art openings in college. I was there to see some art, too. But if you’ve been involved in the art world in any capacity, you know this scenario well. It’s not Louisville, but maybe it’s Northeast Minneapolis, maybe it’s Lowertown St. Paul, maybe it’s Chelsea, maybe it’s whatever the arts quarter of your college town was called; but wherever it is, you know it.

    This is one of the first magical lessons of college: dude, they totally have free beer at art openings.

    If it’s not free beer, it’s free wine. And if you’re lucky, it’s free liquor. If it’s not free, it’s cheap. And if it’s not cheap, your friend working the bar will slip you a cup anyway. The point is, if you have an artsy bent and like to have a few drinks in you, there’s no better place to be than an opening on a Friday night. Openings and alcohol go hand-in-hand, like Gilbert and George, like Andy and Edie, like Jeff Koons and the feeling of wanting to punch Jeff Koons in the face.

    I began thinking about this after some rumblings in a few art blogs last month following the arrest of New York gallery owner Ruth Kalb during an opening at her gallery in the East Hamptons. The charge was violating liquor laws and entertaining without a license. Normally the goings-on of the Long Island art world have little interest to me personally, but this is really a universal theme. How many art openings have I been to that have been shut down by the cops for this very reason? Not a lot, but certainly a notable handful.

    Moreover, how many openings have I been to where someone got a little too drunk on the house wine and wanted to start a fight outside about the relative merits of shooting digital vs. Super-8? Or where the gallery owners had to kick someone out for sloshing their drinks a little too close to the artwork? Or where the aftermath of the night’s festivities was a catastrophic scene of discarded beer bottles, crumpled plastic cups and sticky spots on the floor? More than a few.

    Then again, there have been the many times when I’ve thanked the booze-soaked ghost of Jackson Pollock that I had a little cup of wine to look at the art with. Openings can be awkward, stifling affairs. People go to openings to see art, sure, but they also go for a multitude of non-art related reasons.

    People go to openings to see who else will be there. People are there to impress their friends and confound their rivals.

    People are clustered in unnatural little conversational groups – you’re spending a half-hour talking to that sculptor whose name you never remember, an adjunct professor you once had, your younger brother’s fiancée and that girl that works at the co-op, all at the same time. None of them have met each other. They all expect introductions.

    People are nervous. People want to look good because they may be photographed by The Minneapoline and get their pictures on the Internet. People want to look good because their ex-girlfriends will be there with their new, hotter boyfriends.

    Galleries can be stuffy and overheated in the summer and drafty in the winter, and a lot of the time it’s impossible to even see the art, much less form a coherent opinion about it because people are so crowded around it. If there is music, the music is loud and you have to shout over it. Even worse, the music may quite possibly be "experimental" in nature.

    You often have to seem smarter and/or cleverer than you may actually be.

    Needless to say, a little beer or wine in this context can be a godsend.

    It gives you something to look busy with if you’re by yourself, and gives you a little bit of impetus to talk to people with whom you might not otherwise think of much to talk about. It’s a scientifically-established principle that alcohol makes you smarter, or barring that, at least more confident about seeming smarter. Standing in front of a canvas with a little cup of wine in your hand feels right. It feels natural.

    From the gallery’s perspective, it can be helpful, too. It draws people in, for one. Healthy attendance numbers look good on those grant applications. If it’s a commercial gallery, a little libation gets people in the mood to buy. If the alcohol is donated, the gallery can even cover some additional costs in the process. No huge profit margins, obviously, but enough to make it worthwhile.

    I talked to the directors of a few Minneapolis galleries to get their take on the subject. Was serving alcohol at openings worth it? The general consensus, of course, was a qualified "yes." But within that consensus, there were a range of opinions. Everyone I spoke to wished to stay anonymous, for obvious reasons, so you’ll have to use your imaginations.

    There are some legal issues involved in serving alcohol, of course. Obviously, you can’t sell it without a license. Actually, legally, you can’t really even serve it without an entertainment license (you can read all the statutes yourself to your heart’s delight here on the city’s website). What you can do, though, is suggest a donation, and so this is the way most of the gallery
    owners I spoke to went about things. A lot of it really seems to be semantics – most galleries you’ll go to will have a posted sign asking for donations, and that covers some of the liability, anyway. Everyone was careful to stress that they run a clean house as far as underage boozing, outdoor drinking and slopped-out jerkiness are concerned. Young-looking types get carded, people aren’t permitted to wander around the street outside waving their beer bottles, and troublemakers get the boot. This generally keeps police and city inspectors away. As one owner pointed out, the cost of a license is a piddling little amount compared to attorney’s fees. Another even went so far as to regular hire off-duty cops to keep everything nice and legit for larger, more heavily-attended openings.

    Legal issues aside, there are also the behavioral and trash disposal issues. Most owners here, as well, had specific strategies for making sure people have fun without landing everyone in the drunk tank or the Broken Bottle Fight Injuries Ward at HCMC. Openings occur for a specific and set amount of time, end before the neighbors start complaining, and filter out collectively to neighborhood bars afterwards so people have somewhere to go and finish the conversations they started. Everyone I spoke to recycles bottles and plastic.

    Basically, all gallery heads reported back to me that their crowds, though they do love the beer and wine, are pretty reasonable, intelligent people that aren’t there to bankrupt the gallery, start fistfights or urinate Phillips vodka on the video art set-ups. Mostly they come to see art, meet up with friends, and generally have a good experience. The setbacks are far outweighed by the benefits. An art opening is, in the end, about the art – if it was just about boozing, all of our local gallery runners would be nightclub entrepreneurs instead. This is as it should be. Because let’s face it: Minneapolis, to her eternal credit, has much better galleries than it does nightclubs.

    So enjoy your beer and/or art this weekend, and just make sure the empty bottle makes its way to the recycling bin.

  • No Way Home

    The dorm house where Khan Moek works is on the outskirts of Phnom Penh, the capital of Cambodia. It is run by the Returnee Integration Support Program (RISP), a venture supported by the Vietnam Veterans of America Foundation. The program offers a number of support services to help Cambodian felons who are deported from the U.S. learn to live in a country where they are nominal citizens, but utter foreigners in every other way.

     

    The house is a dusty fifteen-minute ride on the back of a motor scooter. I wrap a scarf around my nose and mouth as my motor-scooter driver weaves through heavy traffic, heading from the Independence Monument in the city center to a lesser-developed neighborhood. There are no traffic lanes and few stop lights, but everyone drives courteously. From the paved street the driver turns onto a narrow dirt road, barnacled with rocks, leading to the RISP house. Chickens loiter inside the concrete-walled yard and Toby, a pet monkey given to one of the staff members, swings about in his cramped cage, excited to see new people on the premises.

    The two parts of the city are worlds, and seemingly decades, apart. Near the urbane square, you can pay U.S. prices for an iced latte in a café run by a Westerner and patronized by expats, or check email at any of a handful of internet cafés. Meanwhile, in the neighborhood where the RISP house is located, many homes lack indoor plumbing.

    Moek greets me as I pay my driver what amounts to about one U.S. dollar. Warm and soft-spoken, with a fit, slim build, Moek is obviously proud of the condition of the home and its grounds—he is in charge of managing this place. He invites me to sit beneath a banana tree at a chunky wooden picnic table. The heat and humidity is indescribable. “Oppressive” and “stifling” mean nothing, even though I scribble these words on my notepad. I’ve only been in Phnom Penh a couple of days, and when I breathe, it’s with the same heaviness as if I were in a sauna. Sweat drips, clothes stick. You forget about even attempting to look as cool or composed as the Cambodians seem to be. Moek looks at me and smiles. He knows what it’s like to be dropped into this climate from Minnesota’s cooler temperatures.

    “It’s not easy to acclimate,” I say, rolling up my pant legs. “I know,” he replies. A resident at the dorm house brings us shade-cooled bottles of water (ice is out of the question). Like the others, he was deported from the U.S. for committing a felony. I’m curious to know what he was convicted for, but I don’t ask—due to the recent tightening of immigration laws, it could have been anything from rape to theft.

    Moek, however, wants to tell me his story. As he begins talking, he sounds sincere and, well, honest. “I’ll tell you the truth because you can find it out anyway,” he says. He bounces back and forth between the past and present with unease and trepidation. Moek, who is twenty-four, says he has two big regrets: joining a gang and not encouraging his parents to become U.S. citizens. If they had, citizenship would also have been conferred upon their children under the age of eighteen. By the time Moek was eligible to take the test for himself, his trouble with the law disqualified him from pursuing citizenship. He didn’t know it at the time, but those choices sealed his fate: not only to be convicted of a crime, but also to be banished from the only country he knew.

    Moek was three-and-a-half years old when he—along with two younger sisters, Savan and San—arrived in the U.S. with their parents. It was 1984, and the family had been living in a Thai refugee camp since 1977, when Moek’s parents fled the Khmer Rouge in Cambodia. Their story is not unusual. The conditions of life in Cambodia under the Khmer Rouge are well-known. Eighty-five percent of the population was subjected to brainwashing and forced labor, and suffered lack of food, water, shelter, and medical care. Thirty-six percent of the people reported torture; seventeen percent reported rape or sexual abuse; and fifty-four percent experienced the murder of a family member or friend. In all, an estimated two million of Cambodia’s eight million citizens perished from disease, starvation, overwork, or outright execution during one of the world’s most notorious genocides. Meanwhile, those who made it to refugee camps suffered from depression, post-traumatic stress disorder, and a host of other psychological ailments.

    With the help of U.S.-sanctioned policies and programs, Cambodian refugees began arriving on our shores in the mid-seventies. However, critics say poor preparation, as well as a lack of resources and other support, laid the groundwork for an immigrant community that would remain at risk for all kinds of problems associated with poverty and racism—including drug use, gangs, and crime. Even those Cambodians who came here as toddlers or were born here would suffer.

    Moek’s parents had two more children, his brothers Sokhen and Sohkom, after arriving in the U.S. They were U.S. citizens from birth, while the rest of the family lived here as permanent residents. It’s a common scenario. “My mother and father never became citizens because they couldn’t pass the language requirements,” Khan tells me. “I never even thought about citizenship for myself—honestly, I didn’t think I needed it.”

    As a teenager, Moek was a good son, said his mother, Sath Soa. “Family was important to him,” she told me, while sitting cross-legged on the floor in her living room in St. Paul, cradling a newborn grandchild. “He helped take care of the younger children and was good in school.” Moek worked at the United Cambodia Association of Minnesota translating letters and organizing events for Cambodian youth, she said. He scored A’s and B’s at Guadalupe Alternative Programs, an alternative school in West St. Paul. Jody Nelson, the principal, remembers Moek well. “He was a leader—that was clear early on,” she told me. She cannot seem to say enough glowing things about him as a student. “He was respectful to his peers and teachers and was very involved in extracurricular activities, including the student government board.” Nelson and other staff members at the school were saddened by the “mistake,” as she called it, that lead to his arrest. “But that didn’t make a difference to me.”

    Nor, apparently, did Moek’s involvement in the Red Cambodian Bloods gang. “It’s an urban reality,” Nelson said. “Many of our students are gang members, but I wouldn’t categorize them as serious gangsters. Many of them belong out of safety or the need to belong to something. But what I see is that most of the kids eventually grow out of the gang activity when they are ready to graduate, have kids, or find girlfriends.” She saw that in Moek. “He was close to his girlfriend, they seemed to have a good relationship, and he was really involved in their baby’s life.”

    Unlike Sath Soa and Jody Nelson, Moek readily admits that he wasn’t a perfect teenager. But he echoes Nelson in explaining why he joined the Bloods. “It doesn’t matter if you’re not in a gang,” Moek says. “Members of other gangs figured I was and targeted me anyway, just because I was Cambodian. I guess I joined the RCB so I’d have some power and they’d know to leave me alone.”

    Nelson said that Guadalupe Alternative Programs only admits students whom teachers and other staff members believe they can invest in. “[Moek] was one of those students,” she said. “He was someone who had a lot of potential to make a difference in the world.”

    Before he could do that, however, Moek was one of seven men indicted on charges stemming from five bank robberies that took place in the St. Paul area in 1998 and 1999. Between December 1998 and March 1999, authorities tracked guns, body armor, ammunition, and cars that they believed were used to carry out the robberies. One gun was linked to Moek. He was arrested in July 1999 and charged with conspiracy to commit robbery, for supplying one of the weapons.

    “I had it, but it wasn’t mine,” Moek says of the gun. He doesn’t offer any further explanation, but does note that “it was my first charge as an adult.” He had faced previous offenses as a juvenile—and spent time one summer in a correctional program that involved living and working on a family farm—though again, he won’t elaborate. “I never hurt anyone,” he insists.

    Moek was eventually let out of jail pending trial. In 2001, he was convicted on the conspiracy charge and sentenced to three years in the Allenwood Federal Correctional Institution in Union Country, Pennsylvania. Only after serving those three years did he find out that his lifelong sentence had just begun. Upon his release from Allenwood in 2004, he was immediately transferred to a nearby county jail. That’s when U.S. Immigration and Customs Enforcement stepped in to begin what is called the “removal process.”

    The U.S. removes, or deports, any non-citizen of any status who is convicted of an aggravated felony, following an administrative procedure to find the person removable on that basis. This includes people who are convicted on misdemeanor charges that are then elevated to the status of an aggravated felony. That elevation became possible with legislation passed by a Republican congress during the height of anti-immigrant sentiment in 1996. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) greatly expanded the number of crimes that are considered an aggravated felony for immigration purposes, including non-violent misdemeanors like shoplifting and possession of marijuana. Conspiracy charges are also considered an “aggravated felony” under the act. What’s more, the law is retroactive—which means that officials have leeway to target, round up, and banish untold thousands of non-citizens years after they had done time for a misdemeanor. By cementing relationships among local law enforcement, the Justice Department, and immigration officials, the act has ensured that increasing numbers of immigrants caught up in local judicial systems will also find themselves facing the feds. In the four years after the act passed, the number of defendants in federal courts facing immigration charges more than doubled, from 6,605 in 1996 to 15,613 in 2000.

    According to the most recent statistics, in fiscal year 2005, a total of 204,193 people were deported—usually back to their country of citizenship. Most were categorized simply as non-criminal removals, but 87,256 of those people had been convicted of crimes and so were categorized as criminal removals.

    Moek is one of 145 Cambodians convicted of crimes in the U.S. who have been removed by the U.S. government in the last four years. They also include a man in his eighties and a woman who left her children behind in the U.S. with relatives. According to the Southeast Asian Action Center in Washington, D.C., twelve Cambodians were sent to Phnom Penh this February, and an estimated 1,500 more are caught in the removal process, perhaps to be deported. Removals to Cambodia began only in 2002, after the country signed a repatriation agreement with the U.S. in March of that year—just months after Moek went to prison in Pennsylvania. The terms of the agreement were hashed out in secret talks that determined Cambodia would receive its citizens who had been convicted of crimes and had completed their jail or prison sentences in the U.S. The U.S. would pay the Cambodian government two hundred dollars per person, money intended to help the person get settled.

    Before 2002, the U.S. didn’t deport anyone—refugees, permanent residents, or convicts—to communist countries. After all, it was held, these people (or their parents) had fled persecution; what’s more, U.S. diplomatic ties with such countries weren’t particularly strong. Now, the U.S. is negotiating agreements with Vietnam and Laos that are similar to its deal with Cambodia; however, Cuba is not on the list. Given how the U.S. government portrays Fidel Castro, forcing Cubans on our soil to go back there would be politically explosive—remember Elian Gonzalez? Cambodia and Laos, however, don’t carry the same political and diplomatic stigmas, and have even become legal tourist destinations. Deporting Cambodians to that country—despite the fact it is foreign to them—doesn’t seem so harsh when more and more Americans are traveling there to see Angkor Wat, or reading about Angelina Jolie adopting a child from one of its orphanages.

    By far, Mexicans make up the largest number of deportees in both criminal and non-criminal cases. Some Asian, African, and Central American countries represent most of the rest of the removals from the U.S. But unlike those countries, Cambodia suffered an intensive U.S.-led conflict—at least one that’s in the history books. Between 1969 and 1973, American planes dropped 540,000 tons of bombs on Cambodia in a campaign aimed at wiping out the Vietcong. The bombings, secretly ordered by President Nixon without congressional approval, killed as many as 150,000 civilians and displaced hundreds of thousands more, eventually destabilizing the country enough for the Khmer Rouge rebels to take over.

  • "The Sanctity of Marriage"

    "If I see that tie one more time, I’ll shoot myself.” My husband Jon was browsing through photos from our recent wedding, lamenting his last-minute decision to rent a tux rather than buy a suit. “Look at that,” he groaned. “Did I somehow not notice it was made of pressed plastic?” I laughed, but lightly, or he’d think I was laughing at him instead of with him. It’s a fine line, but finer still was the one we crossed by deciding to marry at all. When we stood near the stony shore of Lake Superior, the bees of late summer humming in the organza billows of my dress, promising to love, protect, and forgive each other forever, we’d already been living together for three years.

    In that time, we’d gradually transitioned from sharing a bed and a bathroom to merging our identities in other areas—bank accounts, credit cards, phone service, and, in what was a major late-fee liability for both of us, video rental. Which kid was whose (three from his previous marriage and three from mine) also demanded frequent clarification in the early days, when bloodlines ran deep and fast, and threatened to drag us all down to the slimy bottom and bury us there like rocks. While the kids by turns rearranged and refused to rearrange their bedrooms, their schedules, and their loyalties, Jon and I twisted ourselves like pretzels in our fervor to prove to our children that living together might not be such an unthinkable fate. As it happened, our contortions failed to convince our wary children. Only with time did our newly patched-together family begin to take, eventually leaving us free to contemplate the possibility of marriage.

    When finally we produced an actual wedding invitation, many people were confused. Jon’s eighty-six-year-old mom, who had stopped asking about our plans after the so-called “engagement” dragged into its third year, responded with happy shock: “For heaven’s sake,” she said. “I kind of thought you’d gone off and done it already.” Most others had figured the same thing—that we’d snuck down to city hall and signed some papers without fanfare, or that we (specifically, I) had decided to conscientiously object to the patriarchy, eschew marriage on principal, and cohabit forever.

    For years, then, before we snaked through the queues in the Hennepin County Government Center (to encounter what was, given our ages, a surprisingly snappish premarital counseling lecture from the blue-haired lady handling marriage licenses that day), we enjoyed and bemoaned every normal facet of married life, plus a few abnormal ones. Our eventual wedding day was less a beginning of something new than a ritual that affirmed the stable relationship we’d been establishing for years. The threshold over which we stepped was strictly metaphorical. Except, of course, we were legalizing our union.

    Now that my dress is back from the cleaners, and the sealed marriage certificate has arrived back from the county, I wonder. Does this piece of what appears to be recycled printer paper, solemnly signed by us and three friends (including one who performed the ceremony, because we belong to no church), change anything beyond our ability to add each other to insurance policies or unplug life support someday? Is marriage as sacred as it’s cracked up to be? In fact, is it sacred at all, if you said “forever” once but took it back and divorced after ten or fifteen years?

    Not if you ask those who blame no-fault divorce for the demise of the family. They say that when one spouse holds the power to walk away at will, marriage is downgraded from a lifelong commitment to one that lasts as long as either spouse “feels like it.” And it’s true that while reading wedding books for guidance in developing our own ceremony, Jon and I couldn’t help but notice how some of the newfangled vows—“as long as our love shall last,” or “while our marriage serves the greatest good”—seemed a little less ambitious than the old saw, “till death do us part.” Ultimately we couldn’t stand the notion of watering down a promise defined by its lifelong nature. We boldly vowed “forever” even though by doing so we underscored how short we both fell on that once already.

    We worried about creating a ceremony that on the one hand wouldn’t insult our own (or our children’s) sense of historical truth and authenticity, and on the other wouldn’t dilute or qualify our vows to the point of irrelevance. We were participating firsthand in a massive cultural discourse on the meaning of modern marriage, and we were neither first nor alone in our concerns.

    Worrying about the meaning of marriage is a preoccupation dating back thousands of years. Mutability in the rules and mores of marriage is also age-old. As an institution, marriage has always existed in a state of flux. But the cultural colloquy—what it means, why people do it, and who should be allowed the privilege—has probably never reached quite the pitch it has now. Policy debates, from the controversy about gay marriage to “marriage promotion” programs aimed at low-income families, have pushed marriage onto a battleground. And as impassioned warriors clash over who should be allowed access to the “sacred institution” of marriage, others watch with detachment and ask quietly whether the whole concept of marriage has fallen into a state less dramatic than collapse, but ultimately more deadly—obsolescence. Today’s most brutal fights erupt in the matter of same-sex marriage. But battles about who should be allowed to marry have always been vicious. The last major public outcry on marriage-partner selection only just died down.

    Newlyweds Richard and Mildred Loving were sound asleep in the bedroom of their Caroline County, Virginia, home in 1958 when police officers armed with blinding flashlights woke them up and arrested them. The problem? Richard was white and Mildred was black. The Lovings were charged with violating the ban on marriage for interracial couples. Bans on interracial marriage were still common in 1958—just a single generation ago. The Lovings pleaded guilty to a felony and faced up to five years in prison. Instead they got a one-year jail sentence, suspended on the condition that they leave the state and not return together for twenty-five years. The Lovings took up residence in Washington, D.C., and appealed their case. Nearly a decade after their arrest, the United States Supreme Court ruled that “racial hygiene” laws in Virginia and fifteen other states unconstitutionally sought to interfere with a person’s right to marry the partner of her or his choice.

    Many states claimed that laws against interracial marriage protected “the natural order of things.” But the Supreme Court declared that the “freedom to marry” belongs to all Americans as one of our vital personal rights, essential to the orderly pursuit of happiness by a free people. “The Fourteenth Amendment,” wrote the court in the Loving decision, “requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

    In the first half of the twentieth century, forty U.S. states forbade the marriage of a white person to a person of color. Many states enacted bans after 1912, when Representative Seaborn Roddenbery of Georgia introduced a constitutional amendment to ban interracial marriages. In his appeal to Congress, Roddenbery stated, “Intermarriage between whites and blacks is repulsive and averse to every sentiment of pure American spirit. It is abhorrent and repugnant. It is subversive to social peace. It is destructive of moral supremacy, and ultimately this slavery to black beasts will bring this nation to a fatal conflict.”

    By the 1940s, only two of the forty states with anti-miscegeny laws had repealed them. According to the religious doctrine underlying these prohibitions, marriages between whites and people of color were immoral and against God’s natural order. The trial judge in the Loving case justified his ruling—and his state’s ban on interracial marriages—with the sort of God-speak often invoked today against same-sex marriages: “Almighty God created the races white, black, yellow, Malay, and red, and he placed them on separate continents. And for the interference 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.” Others claimed that allowing “interracial marriages” would corrupt the sanctity of marriage and dilute and weaken the institution overall. This all sounds eerily familiar.

    Meanwhile, the question of gay marriage has also existed since antiquity. In testimony during the Canadian court case that led to that country’s recognition of same-sex marriages in 2003, one historian pointed out that, although gay marriages did exist in ancient Rome, they were exceptional and not well regarded. What he didn’t mention was that when the Romans—who had no problem with homosexuality—argued against gay marriage, it was on the basis that no “real man” would ever willingly subordinate himself in the way required of a Roman wife.

    The same-sex marriage debate in the U.S. began edging its way into the political fray in 1991, when three gay couples from Hawaii sued that state for the right to legally marry. On May 5, 1993, the Hawaii Supreme Court issued a landmark ruling supporting the idea that it is discriminatory to deny gay men and lesbians the right to marry partners of their choice. Conservative response was swift in the form of the Federal Defense of Marriage Act, which passed overwhelmingly in both houses of Congress and was signed into law in 1996 by the lovable philanderer himself, President Bill Clinton. The act defines marriage as a legal union between one man and one woman, and says that states need not recognize same-sex marriages from other states.

    Defenders of traditional marriage say the Defense of Marriage Act is not enough. President Bush has backed efforts to amend the Constitution in defense against gay marriage, explaining,“There is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage.” The federal marriage amendment died in Congress last year, but last November, a newly named Federal Marriage Protection Amendment passed five to four in a subcommittee of the Judiciary Committee. If it survives the debating and voting of the full committee, it will proceed to the Senate for more of the same.

    “But, if and when a federal marriage amendment is ratified, marriage advocates may be surprised to discover that passing marriage protection laws may not be enough to save an institution in free-fall,” said Daniel Allott, a policy analyst for American Values, an organization dedicated to “uniting American people around the vision of our Founding Fathers.” Allott’s views appeared in a Houston Chronicle op-ed article on November 10, one day after the Federal Marriage Protection Amendment made it out of subcommittee. Two days earlier, Texas had become the nineteenth state to pass a constitutional amendment “preserving” marriage as between one man and one woman. The headline of Allott’s story asked, “Traditional Marriage Under Fire: Who’s Really to Blame?”

    That, according to Allott, would be me. He observed that despite a steady decline in marriage rates (nearly fifty percent over the past three decades, and twenty percent since 1995), “people have not given up living together.” Unmarried cohabitation has increased 1,200 percent since 1960, and “people are living as committed sexual partners in shared households without getting married.” These people, said Allott, are responsible for undermining support for traditional marriage. These people have damaged marriage enough, he said, to make room for debate about same-sex unions in the first place.

    “Clearly, the key players in the battle over marriage are not politicians, judges, or homosexual activists,” he wrote, “but rather the millions of heterosexual couples who have thumbed their noses at marriage and abandoned the institution. While same-sex nuptials would certainly trigger further marital demise, they are also a response to, and strong indication of, just how critically weakened the institution has become.”

    If, as some people say, the institution of marriage is practically dead, does it matter who is or is not allowed to partake in it? Massachusetts caused such a ruckus by granting legal recognition to same-sex marriages in 2004 that by the end of 2005, nineteen states had passed constitutional amendments against same-sex marriage. Vermont, on the other hand, has long sidestepped the issue by granting gay couples in civil unions all the legal rights of marriage except for the word “marriage.” Which brings me back to that sheet of recycled paper, and the question of whether or how much it changes anything. Is it the status of marriage—the legal and social benefits it confers—or the ritual of marriage that makes a difference, if in fact a difference exists? According to a website called ReligiousTolerance.org, there are more than one thousand rights, obligations, and privileges that the federal government automatically grants to all married couples. This surprises me. I haven’t, since my recent wedding, felt quite as showered by privileges as that statistic promises. I think Jon and I felt sanctified at our wedding—holy, special, privileged, protected—but we didn’t consciously consider whether marriage as a social institution was strong or weak. I doubt whether many betrothed couples, straight or gay, scrutinize their decision to marry in this light.

    None of these have been rhetorical or abstract questions for me. Jon and I were ambivalent about marriage, and comfortable with an alternative arrangement. We felt perfectly well accepted as a couple, married or not. Not surprising, according to British demographer Kathleen Kiernan. She theorizes that Europe and North America both are moving through a four-stage process that culminates with cohabitation being essentially equal in status to marriage. Sweden has reached stage four, with more babies born each year to cohabiting couples than to married ones, and with cohabiting parents no longer feeling compelled to marry even after the birth of a second child. The U.S. is thought to be in the beginning of stage three, where cohabitation is a socially acceptable alternative to marriage, but where most couples bearing children together eventually marry.

    So Allott and his entourage are right: People are shacking up like never before. In the U.S., they’re also living alone in greater numbers than ever, which is further testament to the changing patterns in how we live, and should probably warrant more concern than whether or not the people who are pairing up are gay, straight, married, or not. After all, consider Maslow’s hierarchy of needs. Love and companionship are third in line for urgency, just after the most basic elements needed for physiological survival and safety. Human beings may be driven, biologically, to procreate, but a drive isn’t the same as a need, and what’s needed for survival of the species doesn’t always mirror what’s needed for survival of the individual. In fact, procreation doesn’t even make it onto Maslow’s hierarchy of needs. Emotionally based relationships, on the other hand, are essential to human health and well-being. Love relationships take many forms, but marital love is arguably the most intimate and of the highest order.

    Jon and I could have taken legal steps to designate one another as next of kin, or we could have drawn up some other legal agreement to protect ourselves against the ravages of a future break-up. Yet those practical considerations weren’t really our main priorities when we talked about getting married. What we wanted was to participate in the tradition itself and to confirm our commitment in a universally recognized way. The wedding rite, in both civil and religious contexts, is, at its core, a celebration and a pact that hinges on a spoken promise in the presence of witnesses. For us, marriage represented a ritual and a state of being. We wanted to file taxes jointly, to be allowed to speak to each other’s account representatives on the telephone, and to be included as second drivers on rental car agreements without paying extra. We wanted to use the words “married” and “husband” and “wife” without the awkwardness and unease of feeling dishonest. Most of all, we wanted to make a promise to each other and, I suppose, to God, and to know that it was witnessed by others. And we wanted to be held fully accountable to this promise legally, socially, and spiritually.

    Sociologist Frank Furstenburg, speaking not of today’s extravagant wedding industry, but of the institution of marriage itself, has said, “It’s as if marriage has become a luxury item, available only to those with the means to bring it off. Living together or single-parenthood has become the budget way to start a family.” Plenty of people are going the “budget” route. A majority of couples now live together before marrying, and an increasing number of them have no plans to wed in the future. As for parenthood, more women than ever before consider single parenthood a viable route to motherhood in the absence of a suitable marriage partner, and one- third of all adoptions in the U.S. in 2001 were by single women. Statistics like these suggest that under certain circumstances, various alternatives to marriage carry less risk overall than does marriage itself.

    Meanwhile, the married household has lost serious ground as the normative model. In the 1950s, married couples made up eighty percent of all households, compared to fifty-one percent at the turn of the millennium. Many see marriage not as the rite of passage to adulthood that it once was, but as a stage of life that one should enter only after the hurdles to achieving stability—relationally and financially—have been overcome.

    I wonder how it affects people and their relationships to be denied the recognition of legal marriage. Yes, cohabitation has gained widespread social acceptance in the U.S. and elsewhere, but it does not fully parallel the benefits available through marriage. As historian Stephanie Coontz describes in her new book, Marriage, A History, “Arrangements other than marriage are still treated as makeshift or temporary, no matter how long they last. There is no consensus on what rules apply to these relationships. We don’t even know what to call them. The relationship between a cohabiting couple, whether heterosexual or same sex, is unacknowledged by law and may be ignored by friends and relatives of each partner. Marriage, in contrast, gives people a positive vocabulary and public image that set a high standard for the couple’s behavior and for the respect that outsiders ought to give their relationship.” True, many gay activists argue precisely the opposite point: They want no part of these retrograde social institutions, and view them as a form of selling out their movement.

    Catherine Newman, in her essay, “I Do. Not.,” from the anthology The Bitch in the House, cites the Defense of Marriage Act as one of the handful of reasons she herself has chosen to take a political stand against marriage. Instead, she chooses to cohabit with her longtime partner and father of her child: “Because I’d feel like a real A-hole if I put on a beaded cream bodice and vowed myself away in front of all our gay friends—smiling and polite in their dark silk shirts or gossiping wickedly about our choice of canapés—who cannot themselves marry.”

    I understand Newman’s position and commend it. But when I was twenty, I could not have taken the same stand. Eschewing or undermining marriage—my own or the institution—was the last thing I wanted to do.

    I came of age with the sorts of hearts-and-flowers ideas that send people’s eyes rolling back in their heads. I believed in destiny and soul mates and commitment and suffering for the greater good—and to a large extent, I still do, just with a lot more caution and humility. I certainly valued marriage as a sacred institution, and when I got married, it was going to be happy, healthy, and forever.

    But how does a social institution really affect a person’s daily life? How does it influence the decisions and internal struggles, the emotional reality, of one young woman on the cusp of her life as a wife and a mother? My attitudes, like most people’s, were rooted in personal history, which in my case involved my mother’s two divorces. I was too young to remember my dad leaving, so over time I integrated my sister’s mythologized memory: our dad’s legs and his shoes standing beside the marred yellow banister of our open staircase, his stiff suitcase, a pat on the head. Then he was gone. My future children would never possess such a scarring snapshot. For them, everything would be perfect. My childhood didn’t make me bitter, it made me something riskier: idealistic.

    Idealism led me to the altar at age twenty-one. Then, as soon as I descended the church steps, it began picking and tugging at my marriage. I could vaguely see this happening all along, as my real life very gradually unraveled beside the standard of perfection I measured it against. Some marriages withstand the stresses to which ours succumbed—youth, children born fast and many, and financial instability. God knows I wished to join their ranks. It wasn’t for lack of effort or love that my marriage failed—it was for lack of other necessary things, like knowing who I actually was. Barring that, a little forgiveness might have helped. I couldn’t forgive his mistakes, not because they hurt me (though they did) but because they so threatened my image of ideal marriage. Even less could I forgive my own, because back then such a compromise seemed akin to the death of idealism itself. Meanwhile, our mutual unmet needs stockpiled. On the eve of our twelfth anniversary, I lit the match and my ex-husband poured the gasoline. Then we both stood back to gape as the resulting inferno scorched and melted the contents of our shared life until the whole fiery thing collapsed on us and our children. Who can describe that kind of pain? Not me. I was frankly surprised to survive it.

    But I did. Now, I’m a “key player” in the battle over marriage. Along with everyone else I know, married or not, divorced or not. We are all participating in an unprecedented, massive cultural redefinition of marriage, simply by living in this time and place. Ironically, the expectations people have about marriage have never been higher. Thus the institution is both more fragile and more fulfilling than ever before.

    When I first got married in 1989, I did so smack in the middle of a thirty-year period in which marriage was undergoing more change than it had in the previous three thousand years. In Marriage, A History, Stephanie Coontz retraces the evolution of marriage from the beginnings of recorded history through today. According to Coontz, the divorce revolution of the sixties and seventies combined with a host of other factors (the decline of the traditional male-breadwinner marriage; new sexual mores; increased tolerance for out-of-wedlock births; and rising aspirations for self-fulfillment, to name a few) in the eighties and nineties “to create ‘the perfect storm’ in family life and marriage formation. And nothing in its path escaped unscathed.”

    These are not the conclusions Coontz—a respected and widely published family researcher—expected to draw when she began her scholarly research. As hinted at by the title of her first book, The Way We Never Were: American Families and the Nostalgia Trap, Coontz actually set to work on Marriage with the intention of debunking the idea that the institution was undergoing some sort of unprecedented crisis. “After all, for thousands of years people have been proclaiming a crisis in marriage and pointing backward to better days. The ancient Greeks complained bitterly about the declining morals of wives. The Romans bemoaned their high divorce rates, which they contrasted with an earlier era of family stability. The European settlers in America began lamenting the decline of the family and the disobedience of women and children almost as soon as they stepped off the boats . . . . Furthermore, many of the things that people think are unprecedented in family life today are not actually new. Almost every marital and sexual arrangement we have seen in recent years, however startling it may appear, has been tried somewhere before. There have been societies and times when nonmarrried sex and out-of-wedlock births were more common and widely accepted than they are today. Stepfamilies were much more common in the past, the result of high death rates and frequent remarriages. Even divorce rates have been higher in some regions and periods than they are in Europe and North America today. And same-sex marriage, though rare, has been sanctioned in some cultures under certain conditions.”

    Despite all this, Coontz’s research still took her by surprise. As she consulted with colleagues around the world, she gradually determined that the current rearrangements in both married and single life are in fact without historical precedent. But the seed for all this tumult wasn’t the oft-blamed sexual revolution, says Coontz. The trouble got started much, much earlier, in the late eighteenth century, in the form of an idea so radical it immediately began destabilizing marriage on a cultural and individual level: That people should be free to choose a marriage partner based, first and foremost, on love.

    Before love entered into it, marriage had been seen by societies around the globe as primarily a vital economic and political institution. Some cultures considered love a potential side effect to marriage, and others frowned on its presence in marriage altogether. But either way, it was deemed highly unacceptable for marriage “to be left entirely to the free choice of the two individuals involved, especially if they were going to base their decision on something as unreasoning and transitory as love.” If people went around marrying for love, they were going to demand to leave their marriages when love failed. The same notion that could make marriage such an extraordinary relationship could also render it optional and fragile.

    For thousands of years, the aim of marriage had been to establish beneficial kinship bonds and to pool or transfer resources for maximum economic and political advantage. Then suddenly, Europeans and Americans started expecting and even demanding emotional and sexual fulfillment from their marriages. Crises were bound to erupt.

    But this attitudinal shift alone, however cataclysmic, could not have brought us to where we are today. Coontz points to four key factors that made the difference: First, changes in the 1920s blurred boundaries between male and female spheres, and introduced the notion that sexual satisfaction was important for women as well as men. Second, urbanization increased anonymity and made it tougher to control individual behavior and punish nonconformity. Third, advances in birth control and abolishment of “illegitimacy” as a legal designation weakened the sway that pregnancy and childbearing held over marital choices. Finally, the legal autonomy and economic self-sufficiency achieved by women in the seventies and eighties opened up many alternatives to traditional marriage for both sexes.

    In a breathtakingly short time, society’s ability to push people into marriage or keep them there disintegrated. Writes Coontz: “People no longer needed to marry in order to construct successful lives or long-lasting sexual relationships. With that, thousands of years of tradition came to an end.”

    I’m really happy to be married to Jon. Over the years, we’ve built a relationship that strengthens us both, and our new marriage does feel like a sort of shroud of protection. I’m not sure if we could have sustained a marriage had we not spent so much time preparing for it. With our nuptials only a few months old, it’s a little soon to be making proclamations about our marriage’s longevity. I definitely don’t think we would have sustained a marriage to each other in our twenties, just as we weren’t able to sustain our marriages to our first partners. For lots of complicated reasons, we are both people who needed the buffering of time and experience to gain the self-knowledge and skills that marriage requires.

    I think, knowing all that I now do, that I would have felt heartbroken to be denied all this by those who might decree, as Daniel Allott does, that marriage is undermined by people who divorce and cohabit. I’m not saying that Allott is entirely wrong. In fact, he’s not. Marriage as a required construct of modern social life is undermined by those who divorce and cohabit. But marriage as a free and conscious choice is not. Unlike Allott, I no longer assume that marriage is required in modern social life. Love’s inclusion in the equation has complicated matters and weakened marriage as an institution, but it has also elevated the potential of marriage to be something it never was before—a path to fulfillment and spiritual growth.

    At our wedding, Jon’s nineteen-year-old daughter sang with two of our friends. It was a gorgeous Iron and Wine tune, sweet and melancholy, with lyrics full of love and awe: One of us will die inside these arms/Eyes wide open/Naked as we came. I cried as Britta sang, because it hasn’t always been easy and yet there she was, there we were, Jon and me.

  • Cruise Control

    At approx. 1015 hours on 12/31/03 I saw a white male driving a white Ford Taurus. The male backed his car into a parking spot to my left. I was also backed in. The male began reading the paper in his car. He continued to make eye contact with me while reading the paper. After about 5-10 minutes the male got out of his vehicle with some trash in his hand. He approached on the driver’s side window. When I rolled down the window the male asked me how I was doing. We engaged in a conversation about work and the holidays etc. I told him it was my first time in the park. He said he comes down to the park once in a while. I asked him if he wanted to get in the car. He said, “If you got time.” After a short discussion over what I was reading I asked what he was “up for.” He said he didn’t know. After standing for a few minutes, I told him he could get in if he wanted to. He said, “You’re not a cop, are you,” in which I responded no. He said, “You need to be careful around here.” The man said he was going to throw his trash away and then he would sit in the car for a little bit. He walked over to the garbage can, came back, and sat in the front passenger side seat of my vehicle. . .

    There was a few minutes of looking around, then he said, “Well, do you want it or not?” I asked him again what he had in mind. He said he wasn’t sure. I asked him what he was in the mood for. He then asked me what I wanted to do. I told him I didn’t care, I would give or receive. He said, “I like to receive, myself.” … I took my department-issued badge out of my pocket and told him he was under arrest and to take a walk over to the van. —St. Paul Police Department Incident Report

    Especially in the last twelve months in the Twin Cities, closeted husbands, naughty clergymen, and oversexed gays have been caught hard at it in parks, rest stops, health clubs, and even the basement bathroom at the Southdale Mervyn’s. Since the dawn of gayness itself, sex has been exchanged in this obscure yet public ritual. In the straight world, “cruising” calls to mind eight-track tape decks and muscle cars on Main Street. In the gay world, cruising has mostly come to describe the practice of men meeting in public places for fast, anonymous sex. And the history of cruising provides a much more instructive survey of the culture clash between gays and straights than the relatively recent controversy about same-sex marriage.

    Mostly, the clash takes place when straight people try to stop gay men from doing it. Ironically, this requires police to seduce gay men in public. In 2003, responding to community complaints that men were having sex in public view, St. Paul police set up decoy operations in Crosby Regional Park, along the river south of St. Paul. Most defendants arrested here are eventually charged with misdemeanor indecent exposure, lewd conduct, and loitering. Father Edward McGrath, a priest from Rochester, was not so lucky when he encountered a decoy at Crosby Park on a spring day in 2003. According to court documents, he “cupped the officer’s genitals in his hand while slightly squeezing them,” bringing on a charge of fifth-degree criminal sexual assault. Though McGrath was acquitted of the charges last March (District Judge Joanne M. Smith found no evidence that the decoy officer had not consented to the contact, and had, in fact, encouraged it), the damage to the life and career of a Catholic priest need not be described.

    Even Father McGrath may seem lucky compared to William Plaine. Plaine was the first American on record punished for what, judging by the number of offenses alleged, could only have been cruising. In his History of New England, Massachusetts Bay Colony Governor John Winthrop reported in 1646 the following about Plaine: “…he had corrupted a great part of the youth of Guilford by masturbations, which he had committed, and provoked others to the like above a hundred times.” Community service had yet to become the fashion in sentencing guidelines. The “monster in human shape,” as the magistrates described him, was hanged in New Haven.

    William Plaine was certainly not the world’s first cruiser. “Australopithecene,” said Jean-Nickolaus Tretter, when I asked him to date the practice. Tretter is curator of the gay, lesbian, bisexual, and transgender collection at the University of Minnesota Libraries. If a history exists of anything gay, it’s here. Located eighty feet underground at the Elmer Andersen Library, the Tretter Collection in GLBT Studies is, depending on one’s point of view, either a gold mine or a cesspool of gay history, artifacts, memorabilia, and minutiae. Reporters and researchers make regular use of the archive, and Tretter said it has also become an indispensable resource for anti-gay activists seeking to document the sins of homosexuality. Security is tight, the humidity and temperature controlled. In the event of fire, sprinklers could damage surviving materials, so smoke detectors instead trip a system that evacuates oxygen from the air. The gnomish, bespectacled Jean Tretter himself took me down the elevator shaft and through the airlocks for a tour of the archive. The Tretter Collection began as a hobby, but outgrew Tretter’s St. Paul apartment when he gained a reputation for accepting orphaned materials. Boxes of gay Americana, gay pulp novels and ’zines like Holy Titclamps started showing up on his doorstep “like abandoned babies,” he explained.

    For an ostensibly covert activity, cruising has left a surprising paper trail. Tretter has found turn-of-the century newspaper ads for what were euphemistically called “friendship clubs.” Another of his treasures is a preserved green carnation. “This was an identification symbol for cruising in the nineteenth century, especially in Victorian England,” said Tretter, adding that this is most likely the signal Oscar Wilde would have used when he cruised St. Paul’s Rice Park in 1878, after an opera date with Bishop John Ireland. “Using specific symbols for cruising is probably about four to six thousand years old,” Tretter said. Perhaps the most popular of these symbols is the now clichéd hanky code. “You would find the standard old-fashioned 1940s hankies that look like the back of a deck of cards,” he explained. “Depending upon the color and depending upon the pocket you put it in, it told what your particular preference was sexually. It was cruising taken to its ultimate. Because you could look at this guy and say, ‘OK, he’s wearing a red hanky in his left-hand pocket. He must be into…’ whatever it was, what particular type of sexual act. Some of the old travel guidebooks actually published the codes.”

    Other signals have been far more subtle, said Tretter, especially in modern times. “Say you’re at Southdale and you’re on an up escalator and you see this really cute guy on the down escalator. You would start whistling the tune to, say, ‘Somewhere Over the Rainbow.’ You would stop halfway through. If he picked up the tune and then finished it, you knew that he was cruising and he was interested in you.” Another popular signal at one time was a pack of Pall Mall cigarettes placed on a bar and stood on end. A man could reply by doing the same with his pack.

    Tretter spoke of these elaborate rituals mostly in the past tense. To hear it from the St. Paul police, cruising has indeed lost much of its celebrated subtlety. Though he admits that the criminal sexual assault charge against Father McGrath was a bit of a reach, Sergeant Jerry Vick of the vice unit says that decoys at Crosby Park were having too easy a time of it when they first cracked down. “Last year, they [cruisers] were very aggressive. You wouldn’t even say anything and guys would grab you or expose themselves.” When I mentioned I would be visiting Crosby myself to observe the scene, he cautioned me. “You’re going to be like a blonde walking past a construction site.”

    Further evidence that the delicate exchange of cruising signals and codes has given way to a coarser approach can be found at a website called cruisingforsex.com. It’s an adults-only site with a warning that begs minors to stay away for the sake of everyone involved. For straight folks who have ever wondered exactly what some gay men do in the privacy of a public restroom, it supplies a thorough, graphic education. For gay men, it is a detailed guide to “cruisy” locations all over the world, giving specific addresses, phone numbers, and ratings. There are numerous locations in the Twin Cities.

    Comment threads supplied by cruisers are often a bit pedestrian, like “I had trouble finding the parking lot described here. Better directions would have been helpful.” Others go into more detail about the kind and quality of action. One enthusiastic cruiser described a scene of “close to thirty guys” on a Thursday night. These explicit comments can sound like absurd, X-rated eBay recommendations. “Two guys were practically sucking [everything] that was put in their face. I’ll definitely be back!”

    Entries for Crosby Park last spring, flagged with red “Heads Up!” tags, documented the decoy activity that bagged McGrath and many others: “Several arrests were made here in the last week, with undercover cops leading men on and then pulling out the badge as soon as a touch starts. Three arrests, including two priests, hit the news. It’s bad enough they had cameramen walking around filming for the TV stations…” “Undercover activity has greatly increased with lots of entrapment. It’s not safe at all anymore…”

    It was probably inevitable that when cruisers headed for the web, those devoted to stopping them would follow. The City of St. Paul’s anti-prostitution website, which publishes the names and mugs of suspected johns, has been so popular that the police department has now readied a website to publish the photos of men convicted of cruising-related crimes.

    “Putting them on a website is like putting them on a fence,” said defense attorney Randall Tigue of the plan. Tigue represents an Eden Prairie man arrested at Crosby. Despite his objections, Tigue believes the website meets the constitutional test. What is most troubling about such additional penalties, he said, is that most men who are busted for cruising have not actually committed a crime. “It’s the use of police to manufacture a crime,” he said of the decoy operation that caught his client. “It’s the defendants who are the victims and the police who are the perpetrators.”

    Because a large number of cruisers are closeted men, a website posting may be the cruelest penalty of all, said Minneapolis defense attorney Jerry Burg. I met with Burg over coffee near his downtown Minneapolis office to talk about how his clients become entangled with the law. Burg is gay, and after coming out he started getting cruising cases by referral. He is now half of Heltzer & Burg, a firm specializing in the many and varied legal needs of GLBTs.

    Some of Burg’s clients have become suicidal over the prospect of far less exposure than the website. “One of my very first clients in the early nineties was a gentleman in his sixties who had called me for an appointment,” recalled Burg. “And then he called from the hospital. His wife had found him nearly dead from carbon monoxide asphyxiation. That really slapped me.”

    “About fifteen years ago we had someone commit suicide over getting a citation,” recalled a Minneapolis officer who asked not to be named. Minneapolis has its share of cruisy spots that generate perennial complaints, but this officer wondered about the wisdom of St. Paul’s website. “Is it worth that? I don’t think so. These guys are consenting adults. I don’t see them as sexual predators.”

    Even so, the St. Paul website is only the latest in a series of escalations in the way the capitol city deals with cruising crimes. Most authorities use local indecent exposure ordinances against cruisers, and often handle the offense with a ticket. But a couple of years ago, defense attorneys started seeing a new number in charges originating in St. Paul. It was Minnesota statute 617.23. At a glance it reads much like a typical municipal ordinance against indecent exposure, citing as guilty any person who, in a public place, “willfully and lewdly exposes the person’s body, or the private parts thereof” or “procures another to expose private parts.” The statute also contains subdivisions for violations in the presence of a minor under the age of sixteen and intentional confinement of other people witnessing exposure.

    What sets the statute apart for cruisers is the “enhancement” feature. Simply put, a previous conviction for the same offense elevates a misdemeanor to a gross misdemeanor. Other enhancements can lead to felony charges, which in turn can lead to sex-offender registration. While the felony enhancements are triggered by the act of restraining another person or the presence of minors, attorneys like Burg are nervous. It was only two short years ago that Lawrence v. Texas overturned sodomy laws that had forced consenting partners to register as sex offenders in some states. Jim Rasor of the Rasor law firm in Royal Oak, Michigan, said that he knows of at least three cases in that state where laws similar to 617.23 have led to registration for cruising crimes. But even if a cruiser is unlikely to trigger the felony enhancements in the statute, the planned website looks like de facto sex-offender registration to many defense attorneys.

    Another escalation in cruising enforcement is mandatory booking. “St. Paul and Fridley are now requiring that defendants come in and get booked—formal booking with fingerprints and photographs,” said Burg. The St. Paul City Attorney’s office refused to discuss their motives for the practice, or any of the city’s other anti-cruising efforts, but Burg noted that the Bureau of Criminal Apprehension only accepts records accompanied by fingerprints. He also sees no coincidence in the fact that BCA records are the source for employers doing background checks: “It’s a way of bringing these offenders into that database and upping the ante in terms of the consequences. For most of these guys, the real negative that will happen to them is if they apply for a job with a thorough background check.”

    It’s been more than a year since the cops and cameras put Crosby Park on the “Heads Up!” list at cruisingforsex.com. The park is reached by a steep drive intersecting Shephard Road near Cleveland Avenue. The road goes past the Watergate Marina before leading to three separate parking areas, all of which offer good views of approaching traffic. The park itself covers one hundred and sixty acres of Mississippi River bottomland and forest, stitched by nearly seven miles of foot and bike paths. With its remote location, urban proximity, and public facilities, it’s a cruiser’s trifecta. And it doesn’t take much of an eye for action to see that plenty is still going on. Single middle-aged men back their cars into parking spaces and roll down their windows, making it possible for another car to drive forward into the adjacent space, lining up the driver’s side windows for a chat. A pair of men emerges from the wooded paths and wordlessly separates, each walking to a different car.

    Like many other idiosyncrasies of gay culture, gay men tend to cite closeting as a major factor behind cruising. I had several conversations on the topic with Travis Stanton, editor of the Minneapolis GLBT magazine Lavender. Stanton said that even though only a small percentage of gay men cruise, closeting can play a role in the development of sexual habits. “While in the closet, gay men are unable to discuss relationships, desires, or even who they find attractive. Consequently, there is often a sense of sexual freedom upon coming out,” said Stanton, adding that in many cases, “the coming out is only to one’s self.” For closeted men, the anonymity of cruising may be a practical necessity as much as an act of sexual discovery.

    Stanton also observed that anonymity brings thrill-seekers into the game. “For some, there is a voyeuristic, exhibitionist motive. Those individuals believe the sexual experience is heightened by the risk involved with public sex.” It is this feature of cruising that has generated almost as much friction within the gay community as it does with law enforcement. In public image and public policy, today’s mainstream gay agenda is same-sex marriage rights, all day, every day, and straights have heard the news. Cruising does little to cultivate the wholesome family image promoted by gay marriage advocates. “There is a definite rift in the gay community between some who feel it is important to present the public image and those that feel being gay does not automatically make them public representatives of the gay community at large,” said Stanton.

    Yet another controversial look at cruising seeks to explain it biologically. Syndicated sex columnist Dan Savage, for example, has argued that the fabled male sexual imperative has generated habitual promiscuity in the absence of (also fabled) female restraint. A Minneapolis man who has been arrested for cruising (speaking on condition of anonymity) put it this way: “If straight men could cruise women the way men can cruise men, they’d be doing it all the time.” I encountered this declaration a number of times while talking to gay men about cruising, and the consistent implication is that straight men don’t simply because they can’t.

    “I believe this image is slightly flawed, but it may account for a small percentage of the men who participate,” said Travis Stanton of the theory. He also pointed out that straight sex is everywhere. It gets depicted on billboards, in diamond ads, sitcoms, rap videos, and Top Forty hits. “And don’t tell me that men and women don’t park and have sex in cars,” quipped Randall Tigue.

    “Straight cruising takes a more public and certainly more socially tolerated form,” concluded Stanton. “The concept of make-out point is as American as apple pie, but if the rendezvous involves two gay men, rather than the captain of the football team and head cheerleader, it’s prosecuted as if the two were selling crack to kindergartners.”

    Without civil rights laws to protect gay couples from evictions and job loss for simply taking someone home, cruising, paradoxically, was the original safe sex. Oddly, gay efforts to be more like monogamous heterosexuals are now more threatening to anti-gay activists than lewd conduct in public view. The conservative Minnesota Family Council devotes most of its energy these days to supporting state Senator Michele Bachmann’s constitutional amendment to prohibit same-sex marriage. But president Tom Prichard was uncharacteristically short on opinions when I asked him what he thought about the escalating cruising enforcements in St. Paul. “Just enforce the law, I guess,” was all he had to say.

    If the religious right fails to see imitation as the greatest form of flattery in same-sex marriage, cruisers are finding it’s an even worse deal that decoys have become more and more practiced in the art of seeming gay. Unlike prostitution busts, where the financial transaction defines the crime, cruising decoys must encourage some sort of sexual activity to take place to make the arrest. Jerry Burg says that because of this gray area, vice decoys depend on escalating their provocations to produce the desired results. He says that an undercover cop will sometimes actually ask his target to expose himself, to “show me what you got.” And to get him to do it, an officer has to talk and act like he is himself cruising. It’s “not the kind of language you hear on ER. They’re talking sex language.”

    “Not just anyone can do it,” said Sergeant Brian Rogers. Rogers coordinates vice enforcement with the Minneapolis Park Police. He carefully selects and trains decoys because, he says, “We want to make sure we deal with these people in a professional and courteous way.” Rogers also doesn’t favor the harsher measures across the river. The Minneapolis Park Police citation for “prohibited conduct” can be settled out of court. Cruisers are not booked, he says, and they can settle their fines on the spot, like a traffic ticket. “These guys are different from guys exposing themselves around the lakes to women and children. Those are the guys you want to get.”

    But no matter whom they are looking for, tumescent men prowling lavatories and parks will most likely be considered a nuisance long after they gain the right to marry the kindred souls they meet up with. And so they will be busted. And despite the less-punishing approach in Minneapolis, they “go into a complete panic right away. They can’t pay [the fine] fast enough and just get out of there,” said Rogers.

    Or, as Jerry Burg explained, “They’re feeling incredibly stupid and manipulated because they thought they were with somebody who wanted to be with them.”

  • Unhappy Trails

    Guthrie, Minnesota, is not much more than a sleepy little huddle of buildings nestled between Lake Itasca and Leech Lake. It’s classic lake country, where tourists have been coming to summer resorts for generations. Cabin season is short and the impact of tourism can be dramatic, especially since logging and mining have ebbed. The locals have quietly tried to adapt. Here, the famous Paul Bunyan Trail, which runs one hundred miles from Brainerd to Bemidji, is still unpaved. Maps describe the Guthrie section as “natural surface,” which means it is open primarily to snowmobile use in the winter. It is a dirt-and-gravel path that used to be a railroad. The plan is eventually to pave it for bicycles, in-line skaters, and dog-walkers. Today, though, it is penned in by “No Trespassing” signs and a cloud of animosity, rather than the pizza and ice-cream joints that typically sprout up along state trails. As if to wear its troubles like a war scar, the trail here is badly damaged, torn up by outlaw ATVs, which aren’t supposed to use the trail but do anyway.

    In a scrubby spot a few miles outside of Guthrie, the trail runs across the property of Brian and Mike Sandberg. Despite their desire simply to be left alone, the Sandbergs may be the most famous men in the county. Along with some of their neighbors, they are involved in a case that is now under consideration by the Minnesota Supreme Court. They believe they own the land on which the trail is built, and they’re asking the court to close their section of the Paul Bunyan Trail and give it back. If they win the case, it could be the beginning of the end for recreational trails in Minnesota and across the nation.

    Though he grew up in the Guthrie area and owns seventy acres here, Brian Sandberg is an itinerant welder. He works construction jobs in Iowa and Missouri, where he specializes in fabricating huge agricultural tanks. Brian told me he desperately wants to return and retire on his land, although he claims the controversy, and the actions of the Minnesota Department of Resources, have made that impossible. But it’s not clear what stands in his way.

    His brother Mike lives in a tidy new home on twenty acres adjoining Brian’s. Marlaine and Mike are a pleasant, fiftyish couple. Clad in shorts, with his dirty blond hair casually brushed back, Mike Sandberg could easily pass for a tourist on his way to jig for walleyes. He is quietly intense as he walks with me on the Bunyan trail, which runs just a few yards from his house. A muscular black dog dashes out menacingly from behind the garage. But Sunny is only trolling for playmates as she prances around mouthing a tattered tennis ball. Mike shows me where he and some of his neighbors erected barricades across the path, and where DNR crews tore them down. The tension hangs like the humidity in the summer air. It’s difficult to think of humble Guthrie as the vortex of a bitter fight involving property-rights advocates, barricaded trails, local recreational businesses, snowmobilers, ATV jockeys, and spandex-clad bicyclists.

    Minnesota has thirteen hundred miles of recreational trails. Most were built on narrow strips of land that once were owned by railroads. Minnesota’s first modern trail was built on a former railroad corridor near Pipestone. The Casey Jones State Trail opened in 1967 and was so successful that it set a pattern for the following thirty years: As the railroad industry yielded to overland trucking and air transport, the state would purchase abandoned rail corridors from companies like Burlington Northern for the purpose of developing them into public trails. In fact, the idea of converting miles of disused rail easement into recreational trail was so successful that bike and jogging paths began proliferating all over the country. National organizations such as the Rails-to-Trails Conservancy began springing up “to enrich America’s communities and countryside by creating a nationwide network of public trails from former rail lines and connecting corridors.” But, as it turns out, they were making two huge assumptions: that the railroads actually owned the land they were selling, and that Americans would universally embrace the idea of a public trail. The Sandbergs are here to say that neither assumption was sound. They don’t want the trail, they say the land legally belongs to them, and they intend to prove it in court.

    Mike sees the issue in straightforward terms: “What it all boils down to is that Brian has an abstract which states that when they stop using that property for railroad purposes that it reverts back to the landowner. Now Brian has land that he cannot even get to.” According to the Sandbergs, there is no access to Brian’s land other than the former railroad grade that is now the Bunyan trail. But this is a little misleading, because, according to Mike himself, the DNR offered to provide access by building a tunnel or a road, at state expense, through the grade. It seems their main problem is less with a stretch of trail than with the idea of government, and its arrogant bureaucrats trampling on the Sandberg’s private property rights. The idea that the state can exercise its will at the expense of a property owner is abhorrent to them.

    And their stubborness may have basis in law. There are two legal issues in their case with the DNR, and considering that it has landed in the state’s highest court, their chances are better than even. First, was the railway abandoned prior to the land being turned over to the state? Even though the railroad finished removing tracks by 1987, there is still a dispute in the community, as well as in the courts, about what constitutes abandonment. After all, right-of-way is a legal principle, and the question becomes whether the railroad had the right to cede its rights to the state, instead of to the current holder of the deed. Did the original 1898 deed give actual title to the land, or simply an easement to use it—and would it make a difference? And when the railroad abandons an easement, to whom do the rights revert—the current landowners, or the owners at the time the easement was granted (in many cases, the state)? This most contentious issue hinges on verbiage written into deeds more than a century ago, when the railroad first appropriated land.

    Brian Sandberg’s property abstract says, “so long as the land shall be used for Right of Way and for Railway purposes; but to cease and terminate if the Railway is removed from the said strips.” That language seems pretty clear. But weighed against the possibility of throwing the entire state trail system into disarray, or at least into the courts, one can see why trail advocates might quibble just the same.

    Marlaine and Mike’s home, a tidy pre-fab, was built in Canada and trucked onto his property two years ago. He is still putting siding up on parts of the house. The quarter-mile road leading to the home runs parallel to the old rail easement.

    Mike bought his property from Brian. The rest of what Brian owns is, according to Mike, “landlocked.” Brian farmed some of that land, and used the railroad grade to get to it. “We had it blocked off, I think, since 1998,” says Mike. “He had cattle. He just ran them across it.” From the Sandbergs’ point of view, there was nothing broken, and therefore nothing to fix. The DNR’s offers to compensate Brian, build a tunnel, or otherwise work out a solution allowing him to legally cross the trail fell on deaf ears. The Sandbergs see any claim to or meddling with their land as unreasonable.

    This was not the first time that local residents have had issues with the DNR. Some had worked out deals, but the Sandbergs and a few others were not willing to compromise. Some placed barricades across their sections of trail. The DNR responded by removing the fencing. Landowners only became more enraged. “DNR officials think they can do whatever they want,” says Mike Sandberg. After a feeble negotiation and intense posturing on both sides, the DNR took the landowners to court. Hubbard County District Judge Jay Mondry ruled that the Burlington Northern Railroad had title to the property and that the sale of land purchased by the DNR in 1991 for $1.5 million was legal.

    The Sandbergs and the other landowners fought back, adamant that the language in the 1898 deeds clearly transferred ownership of the hundred-foot-wide sections of land back to them if the land was abandoned by the railroad. So they took the case to the Minnesota Court of Appeals. Last September, the state Court of Appeals ruled in favor of the landowners. The court ruled that the railroad only had easement to the land, which ended when the tracks were removed.

    At the DNR’s Division of Trails and Waterways, officials were thrown into a panic; suddenly the trails themselves were embattled. Tasting victory, the Sandbergs and others in Guthrie began erecting fences barricading the Bunyan trail, and the practice threatened to spread. As Mike Sandberg explains, “There are a lot of people on down the line here who have this same language in their deeds.” Immediately, the DNR asked the Supreme Court to overturn the appellate court’s decision. The Supreme Court agreed to review the case, and began doing so last February.

    Trail advocates came together quickly. The Parks and Trails Council of Minnesota, the Paul Bunyan Trail Association, and the Rails-to-Trails Conservancy filed a friend-of-the-court brief in support of the DNR position. Surely, they said, there is a great deal at stake here.

    Nationally and locally, trail use by pedestrians, bicyclists, in-line skaters, and others is on the rise. Millions use rail-trails each year, and they spend a lot of money. Food and drinking receipts in Lanesboro, Minnesota, increased by eighty-four percent the year after the Root River State Trail opened there. The Cannon Valley Trail in Red Wing and the Willard Munger Trail in Duluth are models of success in every measurable way. Tourism and recreation are big business, and the trail system is an integral component of what Minnesota has to offer. But some people reject the emerging tourist economy. Brian Sandberg would rather travel hundreds of miles to the south to find welding work than cater to bicyclists on a weekend jaunt from the Twin Cities.

    Plenty of people in Guthrie see their community as a haven. Theirs is a lifestyle removed from the clamor of outsiders. Mike says, “If we wanted to live in town, we would live in town. You don’t want people running around in your backyard. It’s ownership, pure and simple.”

    From the trail advocate’s perspective, opposition to trails is simply fear of change. Terry McGaughey is credited with conceiving and naming the Bunyan trail and now acts as volunteer coordinator for the Paul Bunyan Trail Association. McGaughey moved from the Twin Cities to Bemidji in 1968. He was instrumental in introducing the idea of the Paul Bunyan Trail to the state Legislature, which first authorized the trail in 1988. McGaughey suggested that opposition to trails fades once trails are fully developed. Although the unsurfaced, rutted base of the rail bed is perfect for ATVs, once the trails are fully improved, the nuisance of illegal use goes away. The Sandbergs admit they have never seen or heard a bicycle on the trail passing through their land—though a mountain bike could easily ride it. It’s actually the noise of ATVs and the obtrusive behavior of ATV riders that is most irksome.

    Motorized vehicles other than snowmobiles are legally prohibited on the trail. McGaughey understands that no one wants ATVs running around his land, but insists that the problem vanishes once the trails are complete. He stresses the health, fitness, recreational, and economic aspects of the trails. He points out that the trail has expanded the tourist season for local businesses, and effectively turned the community into a year-round attraction. McGaughey said that there is actually a lot of enthusiasm and pride for the trails in communities where they have been completed. Portions of the Paul Bunyan Trail that are paved and complete have become an attractive destination for perfectly well-behaved bicyclists, hikers, and snowmobilers. This has created and expanded businesses at just about every point along the trail. Trails preserve the environment, create parkland, cultivate community pride, and preserve a corridor of green space that can help dampen the effects of urban sprawl—an ugly reality that threatens recreation and natural resources even this far north.

    But the Sandbergs aren’t really interested. In a January 24 letter to the Brainerd Dispatch, Brian Sandberg wrote:

    One of the reasons for writing this letter is to let the public know that there are still many of us, that are willing to take the time and money to fight for our Constitutional rights and to ensure that local and state governments can not come in and take property from one person and give to another, in the name of progress or for play. And after the final decision is made, I should have the right to use, sell, rent, or donate any part of the nine-acre strip in question. And also, there is great hope for those, that after the last decision is made on this case, hundreds of Minnesotans will have their rights restored. And they will also have the same right to use their property as they wish.

    On the phone from Iowa, Brian’s voice is raspy. He speaks in the odd, vaguely Southern accent of men everywhere who see themselves as hardworking and close to the land. He talks about how he quit his job in Alaska and drove four thousand miles in fifty-below weather, moving back to the lower forty-eight in order to fight for his property rights. For such a rugged man, he has many fears: He strongly believes that the trail will drive property values down and lead to crime, primarily manslaughter and rape. His wife is afraid to live alone back in Guthrie, while he is on the road welding. He says it is an outrage that he was threatened with being charged as a public nuisance for putting up “No Trespassing” signs on his own property. “It just pissed me off,” he hisses. Brian also refers to the web page of the National Association of Reversionary Property Owners, which claims that its “major goal is to assist property owners in maintaining their complete land ownership and resisting government confiscation.”

    Dorian Grilley, executive director of the Parks and Trails Council of Minnesota, is more philosophical. Grilley doesn’t expect much of a problem elsewhere in Minnesota, even if the Supreme Court rules in the Sandbergs’ favor. In other parts of the state, the sequence of abandonment of the rail easement actually favors the DNR’s acquisition plans. If the courts rule against the DNR in this case, it won’t exactly be the end of the line. The fact of the matter is that the state really can “do what it wants” no matter how loudly the Sandbergs or anyone else protest. Grilley puts a point on it: “The state Legislature certainly has the right to compensate the landowners and take the property.” However, this would mean that in some instances the state would have to pay for the property twice. “Millions of people use the trails each year and there is an increased awareness of the value they serve. The outcome will depend on the community and on statewide values,” Grilley says.

    Dick Kimball, the DNR’s longtime manager of Trails and Waterways, lives and works in the Paul Bunyan Trail area and knows just about everybody involved in the issue. Though some might think of him as an evil agent of the government, Kimball is actually a thoughtful man who understands the need to balance limited resources and the difficulty of reconciling various community interests. Kimball spoke frankly about the growing pressure on resources. “In the Park Rapids, Walker, and Bemidji area, there are probably 150,000 people up here at any given time. I lived in Walker, and the traffic today is fifteen times what it was in 1980. Our biggest issue with these state trails right now is money for maintenance and staff visibility. The more often people see our officers on that trail, the less likely it is that there will be problems. Right now, Brian and Mike are right: The ATV traffic on that unmaintained, unused trail is incredible. In my twenty-five years up here, this is the most contentious issue I have had to deal with. We work on rectifying things without going to the legal side, but some people are bullheaded. Now, whatever the courts decide, we will all have to live with it. It should never have gotten to this point. We should have worked it out.”

    Often the issue comes down to competing ideas about how the environment should be managed and used. Yuppies from the city sometimes believe it should all be off-limits to motor vehicles and logging; locals want to be able to drive ATVs; landowners want everybody to stay away. “People think this is a wilderness area,” said Kimball. “This is not wilderness. It’s a working forest. What we have to do is balance all of our uses, and that’s the goal of our planning process. We are attempting to separate and zone the forest. In 1971, snowmobiles came within one vote of being banned in Minnesota because of all the issues: trespass, damage to private property, wildlife harassment.”

    In some senses, the Pandora’s box has been opened. If the Sandbergs can enforce the language of their original deed, what’s to stop anyone who lives adjacent to disused rail corridor from doing the same? The court itself cannot answer the real question: For an opinionated, hard-working middle-class person, is a solitary, backwoods lifestyle even possible in the already changed economy of what was once Minnesota wilderness? Is Brian Sandberg an intractable mouthpiece for landowners’ rights or a grumpy migratory industrial worker stubbornly attempting to hold onto a dream?

  • The Mortarboard, the Sheepskin, and the Dixie Cup

    Nothing was normal on the morning of Wednesday, November 5, at Stratford High School in Goose Creek, South Carolina. For one thing, there were no drugs in the school. If there were, the fourteen police officers plus one drug-sniffing dog should have found them when they swept into the school, guns drawn, and sent students sprawling against their lockers and on the hallway floors. Some students were handcuffed, others covered with guns. A stocky officer dressed in blue jeans with a Kevlar vest over his T-shirt grabbed an African-American boy off the floor, spinning him in a 180-degree arc and slamming him back to the floor. The surveillance video that captured this scene, despite its jerky, stop-motion quality, shows a bit of swagger as the officer walks away. Stratford Principal George McCrackin had reported “an influx of drug activity,” though police found no drugs or weapons.

    The video clip, widely aired around the country last fall, got the attention of school administrators and parents but only, it seems, for a couple of weeks. Though it is destined to become classic footage from the war on drugs, it no longer truly shocks. On one hand, local communities have always used public schools as a crucible for social activism. On the other, the federal government tends to pursue policy goals in schools, in the name of its educational mandate, that have rarely been achieved in the extracurricular world. Between the two, the force of the law tends to land on schoolchildren with surprising regularity.

    In 1963, Alabama Governor George Wallace famously blocked an entrance to the University of Alabama with his own person to prevent the scourge of black scholarship. Six years before that, Arkansas Governor Orval Faubus called on the National Guard to prevent the entry of nine black students into Little Rock’s Central High. The U.S. Army was then deployed to forcibly desegregate schools (though the GIs didn’t stick around to combat mortgage redlining and other forms of discrimination that persisted outside public schools for years afterward).

    Now, under the flag of drug prevention, dogs and feds are back at the schoolhouse door. And this time they brought specimen cups. Urine testing of students to detect drug use has now begun to march across the U.S., with new support from the Bush administration. The decision that opened the doors to testing without suspicion originated in Oklahoma. In 1999, a student named Lindsay Earls took umbrage when, in order to remain in her school choir, she was required to produce a urine sample under the supervision of school faculty. She was not suspected of drug use, but the school board had implemented a policy that required testing of students participating in all extracurricular activities. With counsel from the American Civil Liberties Union, Earls challenged the policy and scored a victory in the Tenth Circuit. But on June 27, 2002, the U.S. Supreme Court decided in favor of the school district. To many concerned about civil rights, this decision marked the sudden and complete expulsion of the Fourth Amendment from public schools.

    Fourth Amendment protections against unreasonable searches have eroded gradually in public schools for about eighteen years. Back when Nancy Reagan was urging kids to Just Say No to drugs, the U.S. Supreme Court just said no to probable cause. In 1985, the justices decided against a New Jersey high school student who argued that getting caught smoking cigarettes did not constitute probable cause to search her purse. The court held that “The Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials and is not limited to searches carried out by law enforcement officers. Nor are school officials exempt from the Amendment’s dictates by virtue of the special nature of their authority over schoolchildren.” While this upheld a portion of the Fourth Amendment, Justice Byron R. White went on to state that “school officials need not obtain a warrant before searching a student who is under their authority. Moreover, school officials need not be held subject to the requirement that searches be based on probable cause…” This deletion of warrant and probable cause left only the more subjective barrier of “reasonableness” between students and searches.

    A further erosion of the Fourth Amendment came in 1989. The Veronia school district in Oregon had decided it was reasonable to test the urine of athletes, regardless of individual suspicion. With probable cause no longer a concern, Justice Antonin Scalia found abundant justification for random drug testing because “in small town America, school sports play a prominent role in the town’s life, and student athletes are admired in their schools and in the community.” Apparently, admiration of these athletes declined when, in Justice Scalia’s words, “Students became increasingly rude during class; outbursts of profane language became common. Not only were student athletes included among the drug users, but as the District Court found, athletes were the leaders of the drug culture.”

    Justice Scalia agreed that the student body at large needed protection from the decadent-yet-admired athletes, and found it easy to dispense with the privacy expectations of the unruly jocks. He did this by reaching back past the Fourth Amendment to a legal source from eighteenth-century England, in which Sir William Blackstone wrote that a parent may “delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis…” In this case, however, the parents of student James Acton had declined to delegate authority over his bladder to the school. Nevertheless, again citing “reasonableness,” the court decided in favor of the school.
    So by 2002, the reasonableness of testing urine without a basis in suspicion had been well established. That’s when the case from Oklahoma appeared to test the reasonableness of the Supreme Court itself, as Justice Ruth Bader Ginsberg’s fourteen-page dissent observed: “The particular testing program upheld today is not reasonable, it is capricious, even perverse…. If a student has a reasonable subjective expectation of privacy in the personal items she brings to school… surely she has a similar expectation regarding the chemical composition of her urine.”

    Writing for the majority, Justice Clarence Thomas reviewed the urine-collection procedure: “Under the policy, a faculty monitor waits outside the closed restroom stall for the student to produce a sample and must ‘listen for the normal sounds of urination in order to guard against tampered specimens and to insure an accurate chain of custody.’” While Justice Scalia seemed to prefer eighteenth-century British law to the U.S. Constitution, it’s hard not to speculate that Justice Thomas drew on personal experience in describing the process used in Oklahoma as “even less problematic” than the “negligible” intrusions in Veronia, Oregon. In the end, the court decided that if Lindsay Earls wanted to sing for the choir, she would first have to pee for the principal.

  • Out the Inbox

    Each of the offices in the ten-story Ceresota Building on Fifth Street is, like a lot of offices these days, an island unto itself. Each floor of the converted flour mill holds three tenants at most. Some, like the Cooper Law Firm, take up an entire story. So despite the common first-floor cafeteria, interoffice communication seems limited mostly to polite nods in the elevator. There hasn’t been much gossip about the fifth floor, which is the world headquarters of a business that goes by dozens of names but whose office window reads “GeekTech, Inc.”

    Most people in the building assume the company is involved in some kind of software development; others know the partial truth that it’s one of the few dot-coms to have survived the bust. A few of them know the full truth: that GeekTech is an Internet porn outfit. Those who know don’t seem particularly bothered by it, even when they hear that GeekTech may be one of the largest purveyors of online pornography in the country.

    GeekTech’s office looks like any other, with Fortune and Time magazines on the lobby table. Employees seem friendly enough, but keep to themselves. The place is not crawling with scantily clad, silicone-injected porn stars; GeekTech’s business is all virtual.

    But when I mention that the company has been accused of being a chronic source of spam, the neighbors become agitated. Sue, an office assistant next door at Standard Parking, had no idea what GeekTech did. “They’re nice,” she said. When I told her they publish pornography, she shrugged. Whatever. But when I mentioned the possibility that GeekTech’s business may be responsible for a considerable amount of spam, she grimaced and made clawing motions, as if scratching the eyes out of whoever is responsible for infecting her email inbox with a plague of sleazy scams.

    Her ire may be well placed. Because of the way GeekTech and many other online pornographers do business, they frequently become conduits for spam, whether they plan it that way or not. Such companies invite anybody with the time and interest to act as an independent marketer for them—sending traffic to paid porn sites in exchange for a piece of the action. Many so-called “affiliates” do this legitimately, by linking from their own Web pages, for example. But many also do it by sending thousands, often millions of emails.

    Unsolicited commercial email has reached a critical mass. The problem has become so bad that Congress recently passed a law restricting it (though it is largely symbolic and mostly toothless), and people like Bill Gates are investing heavily in technology meant to stem the deluge. Companies such as Microsoft, Yahoo, and America Online have filed lawsuits against dozens of alleged spammers. Internet service providers say they are so overwhelmed with spam that they have to siphon money and personnel away from customer service and toward making sure their customers don’t get so much spam that they abandon the Internet altogether.

    All spam is annoying, but some is truly offensive. Few people want to launch their email program at work, only to have a large sexually explicit image fill their screen. And most parents would prefer that their kids not be exposed to advertisements for “farmer’s daughter gone wild!”

    One of GeekTech’s more successful properties is a core site called Porn City. Mike Strouse, otherwise known as GeekTech’s brash young owner, calls himself its mayor.

    Porn City opened for business in 1996. It claimed to be the “first free adult host.” It was right around that time that online pornography became a lucrative business and the free-host business model became common. Not coincidentally, it was also around then that porn spam started to become a serious problem. Since then, similar business schemes have proliferated, along with the spam that inevitably is a part of the formula.

    GeekTech’s business works like this: Anybody with an Internet connection, the right software, and a rudimentary knowledge of Web publishing can become a “host” on any one of several sites run by GeekTech. Or, if they’re especially ambitious, they can set up their own independent site. Smaller host operations can get free Web space from GeekTech in exchange for a promise to direct any traffic they attract to the company’s pay sites. Bigger operations usually run their own sites on the servers of their own Internet service provider, and they may act as affiliates for any number of pay-for-porn outfits. These larger hosts tend to be sites that offer hundreds of pages of free pornography, heavily mined with ads and links to the pay sites.

    The upside for GeekTech is obvious: the more independent operators that link to GeekTech’s sites, the more paying customers GeekTech signs up. The Web is rife with such “affiliates,” who in essence act as marketers for companies like GeekTech, which provide the actual material. GeekTech gives its affiliates some pictures to lure users. Affiliates direct the users to one of GeekTech’s big pay pornography sites, such as sushichicks.com (Asian women), babeswithboners.com (pre-operative transsexuals), or legsandhose.com (stockings). For every Web surfer who clicks through to a GeekTech pay site and enters his credit card number, the host of the affiliate site gets a check—commonly about $35, though different programs pay different amounts. The link on the affiliate’s Web page to the pay sites contains a code, which is how affiliates are identified and paid.

    That’s where the problem comes in. Most spam that advertises Web sites includes a link that contains this code, usually at the end of a long URL. That link leads users to the pay-porn site, and the code tells the owner of the site which affiliate sent the user there. If the user signs up for the site, the affiliate gets a cut of the first month’s payment from the new customer. What could be easier?

  • Gagging on the Patriot Act

    If the title of patron saint of journalists were not already held by the seventeenth-century French priest Francis de Sales, many American reporters would be ready to canonize Professor Jane E. Kirtley of the University of Minnesota for her steadfast support and defense of their work. Through a serendipitous career as a reporter, attorney, advocate, and academic, Kirtley has built a reputation as the nation’s leading expert on the First Amendment and its practical application to the media. She has also emerged as a major critic of increased government secrecy since September 11.

    In journalism circles, Kirtley gained renown for leading the Reporters Committee for Freedom of the Press (RCFP) from 1985 to 1999, helping to shape the Washington, D.C., organization into a substantive, respected resource on First Amendment issues for reporters across the country. As director of the Silha Center for the Study of Media Ethics and Law, she still serves as a source for scores of media inquiries each year, while teaching media law classes that are in great demand and continuing her crusade for press freedom issues, both at home and abroad.

    Slight of build, with green eyes and a thin, regal nose, the amiable Kirtley seems an unlikely champion for America’s often boisterous fourth estate. When on a soapbox for freedom of the press, she is more beatific than belligerent, a joyful missionary for the First Amendment. She once told her law school alumni magazine, “I suspect that if you asked some of my professors, they never would have believed it was possible that shy little Jane Kirtley could actually be taking on Jerry Falwell or Pat Buchanan on Crossfire.”

    Since coming to Minnesota four years ago, Kirtley has maintained a busy schedule that combines public engagement and scholarly research. She has given 115 lectures, presentations and speeches outside her own classrooms; written or co-written thirty-seven publications; served on seventy-seven panels or seminars; consulted on freedom of information and the press in ten countries; and been interviewed by the media nearly three hundred times.

    When The Rake caught up with her in January, Professor Kirtley was preparing to leave town for a semester as a visiting professor at Suffolk University Law School in Boston. Kirtley, an admitted Anglophile who quotes the fictional Rumpole of the Bailey in law review articles, was also nursing a cold that she had picked up on vacation in London with her husband, law professor and playwright Steve Cribari. Despite the sniffles and the peripatetic schedule, she was true to her reputation as an accessible and “above and beyond” resource for journalists.

    Even after three decades in the news business, Kirtley still gets choked up over what most Americans take for granted. “It’s really hard for me to talk about the First Amendment without getting extremely emotional,” she declares a little bashfully. “It’s such an article of faith with me. It’s what makes our country different from any other democracy in the world.” Kirtley sees one of her roles at the University of Minnesota as “passing the torch” to budding journalists. “We have a new generation that needs to understand the importance of the First Amendment,” she says.

    Los Angeles Times media writer Tim Rutten says it’s clear that principle, rather than a love of publicity, drives Kirtley’s work. “Some people believe in free expression because they think it’s a bedrock value of a free society,” he says. “Then there are those who adore malicious license. Jane is in the first camp—that sets her apart from many lawyers interested in media.” Adam Liptak of the New York Times, a libel attorney turned reporter, lauds Kirtley for her comprehensive knowledge of the law and her “authentic commitment to First Amendment values.”

    Even those who disagree with her views hold Kirtley in high esteem. “I enjoy sparring with Jane a tremendous amount,” declares Minneapolis attorney and former federal prosecutor William Michael, Jr., who has debated her on the USA PATRIOT Act and other Bush-administration security initiatives. “It’s good for the country that she continues to speak on her views. It leads to a better-informed public and better-informed decision-making authority.”

    Kirtley grew up in Indianapolis, the daughter of a research physician who subscribed to the city’s three daily papers. “Eugene Pulliam, who published two of those papers, was—bless his heart—slightly to the right of Attila the Hun, but he really believed in freedom of the press,” Kirtley says. Bitten by the journalism bug early on, Kirtley says she regarded the profession as a way to do interesting things without overspecializing. Arts reporting was a particular interest, and today Kirtley remains an avid opera fan with a soft spot for Verdi. (One can only wonder how Verdi’s tales of skullduggery and betrayal amongst the rich and powerful might turn out differently, were a gaggle of reporters suddenly to horn in on the storyline, exposing key secrets for benefit of the public.)

    Her career took an unexpected turn while studying at Northwestern University’s Medill School of Journalism. As part of her master’s program, she was assigned to cover nuclear energy and nuclear-weapons policy in Washington, D.C., for the Oak Ridger, the newspaper serving Oak Ridge, Tennessee, home of a major nuclear-weapons and energy facility. “At that time, Oak Ridge had one of the highest concentration of Ph.D.’s anywhere in the U.S., so I had to get everything right. You couldn’t fudge it because you were writing for an audience who knew this stuff inside and out.”

    That assignment led her to a critical realization. “What really struck me was the fact that if I couldn’t get the information, then I couldn’t really write. Over the years, working in emerging democracies and so forth, I’ve come to the conclusion that the right to say or report anything you want is only half of the idea of freedom of the press. You also need to have the right to get information. Otherwise you have nothing to say, or what you do say is nothing but hot air.”

    In these days of zealous government secrecy, Kirtley is fond of quoting federal Judge Damon Keith, who wrote that “democracies die behind closed doors.” She adds that “Democracy is not self-executing. Just because we declare a democracy doesn’t mean it really exists. If we want to preserve it and have it be what it’s really supposed to be—that only happens if we have access to information.”

    In a recent article, she makes the claim that “democracies can’t accomplish much of anything without the free flow of information—including waging the war on terrorism.” She notes that a congressional investigation into the events of September 11 showed that relevant CIA and National Security Agency reports were so highly classified that FBI agents in the field—the actual law enforcement officials who might have been able to pre-empt the attacks—did not have access to these reports. Her point was underscored by Tom Kean, co-chair of the federal September 11 commission and former Republican governor of New Jersey, who observed in a December interview with CBS: “I’ve been reading these highly, highly classified documents. In most cases, I finish with them, I look up and say, ‘Why is this classified?’ Maybe out of our work, a lot of these documents that are classified will be unclassified.”