Daily Archives: 20 May 2014

May 20, 1747 (a Saturday)

James Lind

James Lind wrote in his A Treatise of the Scurvy (published in 1753):

On the 20th of May, 1747, I took twelve patients in the scurvy on board the Salisbury at sea. Their cases were as similar as I could have them.

Thus began Lind’s description of his classic therapeutic experiment on sailors with the scurvy in which various, then proposed remedies, were tested as antiscorbutics. His report continued:

[The subjects] lay together in one place…in the fore-hold; and had one common diet, viz. water-gruel sweetened with sugar in the morning; fresh mutton-broth often times for dinner;…and for supper, barley and raisins, rice and currants, sago and wine, or the like. Two of these were ordered each a quart of cider a-day. Two others took twenty-five [drops] of elixir vitriol three times a-day, upon an empty stomach…Two others took two spoonfuls of vinegar three times a-day, upon an empty stomach;…Two of the worst patients…were put under a course of sea-water. Of this they drank half a pint every day…Two others had each two oranges and one lemon given them every day. These they eat with greediness, at different times, upon an empty stomach. They continued but six days under this course, having consumed the quantity that could be spared. The two remaining patients, took the bigness of a nutmeg three times a-day, of an electuary recommended by an hospital-surgeon, made of garlic, mustard-seed, [horse-radish], balsam of Peru, and gum myrrh…

The consequence was, that the most sudden and visible good effects were perceived from the use of the oranges and lemons; one of those who had taken them, being at the end of six days fit for duty… The other was the best recovered of any in his condition; and being now deemed pretty well, was appointed nurse to the rest of the sick.

Cider, Lind reported, had the next best effect. There was no remarkable alteration of the course of the disease in any of the other patients at the end of the two weeks’ tests. Although he does not mention them in the quotation above, Lind had a control group — all the other patients on board of his ship. These patients did not get anything that might cure their disease — all they got was a pain-killing paste (“lenitive electuary”), a laxative (cremor tartar), and/or a cough syrup (“pectoral”). It is clear that these products can have an effect on the symptoms (pain, constipation) but will not cure the disease. Thus, Lind’s experiment provided clear evidence of the curative value of oranges and lemons and was also the first example of a controlled clinical trial using human subjects.

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May 20, 1806 (a Tuesday)

John Stuart Mill

On this date, John Stuart Mill was born in England. Mill, who met Jeremy Bentham as a young man, became a champion of individual liberty. With Bentham, Mill advanced utilitarianism, a philosophy advocating that the role of government is to create the greatest amount of good with the least evil. Mill, known for his clear writing style and compelling logic, advanced and popularized such ideals as social and sexual equality, the public ownership of national resources, and political liberty. Mill was tutored at a tender age by his father, James Mill, who was an agnostic. Mill could not remember a time when he could not read Greek, writing in his autobiography that he started Greek study by age three. Mill wrote in his Autobiography (1873) that his father “impressed upon me from the first, that the manner in which the world came into existence was a subject on which nothing was known: that the question, ‘Who made me?’ cannot be answered, because we have no experience or authentic information from which to answer it; and that any answer only throws the difficulty a step further back, since the question immediately presents itself, Who made God?”

Even as a teenager, Mill wrote a defense of skeptic Richard Carlile, jailed for six years for “blasphemous libel.” After a clerkship in India House, Mill became part of the “philosophic Radicals,” and wrote for number of journals. A System of Logic, in two volumes, came out in 1843, followed by Principles of Political Economy (1848), On Liberty (1859), Utilitarianism (1863), and The Subjection of Women (1869). The latter book was influenced by his wife Harriet Hardy Taylor, a longtime friend whom Mill married in 1851. “Every established fact which is too bad to admit of any other defense is always presented to us as an injunction of religion,” he noted in this work. In On Liberty, a work dedicated to his wife, who died in 1858, Mill rejected a standard of ethics predicated on obedience, or the crushing of individuality, whether by “enforcing the will of God or the injunctions of men.” Mill termed Christianity “essentially a doctrine of passive obedience; it inculcates submission to all authorities found established.”

Mill was a member of Parliament from 1865 to 1868, rising to the defense of Charles Bradlaugh, the atheist politician who had to fight for years to be seated in Parliament. Although Mill’s views were unpopular, Gladstone once referred to Mill as “the saint of Rationalism.” Mill’s Reform Bill of 1867, the first attempt to grant the vote to British women, while unsuccessful, ignited the British suffrage movement. Three essays on religion were published posthumously. In them, Mill hints that he had adopted a Deistic belief in what he termed a “limited liability god,” surprising his freethinking friends. But his strong repudiation of miracles and dogma, while outraging the public, was a seminal defense of rationalism. Mill wrote in Utility of Religion, published in 1874, that belief “in the supernatural . . . cannot be considered to be any longer required. . .” Another famous passage by Mills states:

Religiously wrong [is] a motive of legislation which can never be too earnestly protested against. Deorum injuriae Diis curae. Injustices to the gods are the concern of the gods. It remains to be proved that society or any of its officers holds a commission from on high to avenge any supposed offense to Omnipotence which is not also a wrong to our fellow creatures. The notion that it is one man’s duty that another should be religious was the foundation of all the religious persecutions ever perpetrated, and, if admitted, would fully justify them … A determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor’s religion. It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested.

The issues Mill dealt with–and did so admirably consistently– are still relevant today. This becomes evident when we feel sure that we can tell where he would have stood on the issues of our day. To borrow the judgement of another great mind and thinker, Isaiah Berlin, Mill’s On Liberty “is still the clearest, most candid, persuasive, and moving exposition of the point of view of those who desire an open and tolerant society.” (Berlin, Four Essays on Liberty, p.201).

May 20, 1996 (a Monday)

Scales of Justice

On this date, the US Supreme Court issued its opinion in the landmark case of Romer v. Evans (517 US 620), declaring unconstitutional an amendment to the Colorado state constitution that prohibited state and local governments from enacting any law, regulation, or policy that would, in effect, protect the civil rights of gays, lesbians, and bisexuals. In its ruling, the Court made clear that moral disapproval does not justify governmental discrimination and shattered the “special rights” rhetoric of those who oppose equal treatment for lesbian, gay, and bisexual people.

Romer marked the first time in its history that the Court recognized lesbians and gay men as worthy and deserving of equal rights. The decision helped stem the tide of antigay initiatives that were spreading across the West in the late 1980s and early 1990s. The case was also important because it laid the groundwork for other important gay rights decisions. Most notably, when the Supreme Court reversed Bowers v. Hardwick and struck down all sodomy laws in Lawrence v. Texas (2003), it said that the “foundations of Bowers have sustained serious erosion from our recent decisions in Casey [a right to privacy case on abortion] and Romer.”

The amendment at issue in Romer v. Evans, known as Amendment 2, was placed on the November, 1992 ballot following a petition drive. The Amendment provided that:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The Amendment was promoted by a conservative Christian group called Colorado for Family Values that had formed to repeal all municipal and state laws and regulations prohibiting discrimination based on sexual orientation. There were two conflicting interpretations circulating in Colorado about these ordinances, state laws, and executive orders:

  • Colorado for Family Values and other religious conservatives described the regulations as granting “minority status protections to homosexuals, not granted to any other citizens.” That is, the regulations gave special privileges to gays and lesbians that were denied the heterosexual majority and the bisexual minority.
  • Gays, lesbians, and others held an opposing view: that these ordinances and laws protected everyone from any discrimination that they might suffer because of their sexual orientation. Specifically, they protect: (1) heterosexuals — the majority of adults who are sexually attracted to members of the opposite gender, (2) homosexuals — a minority of adults who are attracted to persons of the same gender, and (3) bisexuals — a smaller minority who are attracted to persons of both genders. Thus, according to this view, heterosexuals, homosexuals and bisexuals are all protected by antidiscrimination ordinances and laws to the same degree.

Since terms such as “homosexual”, “lesbian”, “gay”, and “bisexual” did not appear anywhere in the ordinances and laws, it seems that the interpretation by gays and others was correct: homosexuals and bisexuals were not given any special privileges by these ordinances and laws. The conservative Christians were factually incorrect. However, they conducted a masterful advertising campaign and Amendment 2 passed by a narrow margin (53.4% to 46.6%). According to the conservative Christian National Legal Foundation, this prevented their state legislature and all local “governments from granting protected status to a group of individuals based not on an inalienable physical characteristic, but on a chosen lifestyle.” This comment demonstrates two very common beliefs among religious conservatives:

  • That homosexuality is a chosen and changeable behavior; it is what homosexuals do. Religious liberals, gays, lesbians, bisexuals, mental health therapists, human sexuality researchers and others generally believe that homosexuality is actually an immutable, unchosen and unchangeable sexual orientation; it is what homosexuals are.
  • That groups should only be protected against discrimination based on immutable factors, such as sex, race, and skin color. They reject the concept that people should be protected from discrimination based on chosen factors. Since they regard homosexuality as a “chosen lifestyle,” they feel that homosexuals should not be a protected class. They overlook the fact that people choose the religion that they wish to follow. Nevertheless, religious conservatives demand freedom from religious discrimination.

The Amendment was immediately challenged in the state District Court for the City and County of Denver by a coalition of gays, lesbians, the American Civil Liberties Union, the National Association for the Advancement of Colored People, and representatives from the Colorado municipalities of Denver, Boulder, and Aspen, which had gay rights ordinances in effect. They sued Governor Roy Romer (ironically, who had been on record as opposing the Amendment), state Attorney General Gale Norton, and the State of Colorado. The plaintiffs argued that Amendment 2 violated their federal First Amendment right to free expression and their federal Fourteenth Amendment right to Equal Protection of the laws.

Plaintiffs sought and received a preliminary injunction from the trial court, thus preventing Amendment 2 from ever being implemented. The injunction was upheld by the Colorado Supreme Court. The trial court and the Colorado Supreme Court agreed that Amendment 2 infringed the fundamental right of gays and lesbians to participate in the political process. They found that Amendment 2 had violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. The US Supreme Court agreed (6 to 3).

Justice Kennedy, writing for the majority, rejected the assertion that Amendment 2 simply deprived homosexuals of “special rights” which were not shared by the rest of the population. This was the argument used by Colorado for Family Values during their advertising campaign which lead up to the plebiscite. The Court ruled that, under Amendment 2:

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

The court also found:

. . . that Amendment 2 did discriminate against an identifiable class of people and violated their rights to due process and equal protection under the law. The court held that Amendment 2 was based in “animus,” or hatred, against a specific group of people.

In unusually frank language, the Court found that:

. . . the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. . . . Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

In conclusion, Justice Kennedy commented:

The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. . . . We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.

In other words, the majority concluded that the creation of so‐called special rights for gays, which prevented discrimination against them, was really just another manifestation of equal rights, to which all persons were entitled. Amendment 2 was dead.

The Flag of Gay Pride

The dissenters, however, were blistering in denouncing the majority’s actions. Joined by Chief Justice William Rehnquist and Justice Clarence Thomas, Justice Antonin Scalia accused the Court, in his typical hyperbole and hysteria, of “tak[ing] sides in the culture wars”. He characterized Amendment 2 as “rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” He criticized the Court’s majority for “imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected.” [Scalia dropped his membership in the American Bar Association back in the 1980s when it took a position against gay discrimination.] Pointing to the “centuries-old” condemnation of homosexuality, he concluded that Colorado was “entitled to be hostile toward homosexual conduct” (his emphasis). Scalia even compared homosexuality to murder and cruelty to animals:

The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy, or cruelty to animals — and could exhibit even “animus” toward such conduct.

In reaching his conclusion, Scalia adopted a number of classic stereotypes about the lesbian and gay community. He said “those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, have high disposable income, and…possess political power much greater than their numbers, both locally and statewide.” Scalia proffered that the goal of the lesbian and gay civil rights movement is to “devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.”

Interestingly, Chief Justice Rehnquist’s animosity toward gays and lesbians had never been a secret. For example, in Ratchford v. Gay Lib (1978), an opinion from Justice Rehnquist seemed to compare the right of homosexuals to assemble and advocate for legal reform to that of “those suffering from measles [who seek] a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles”.