Ohio's 2004 Super-DOMA: Popular Constitutionalism and Normalization in the Marriage. Equality Debate

• Author: William N. Eskridge Jr.
• Position: John A. Garver Professor of Jurisprudence at Yale Law School
• Pages: 17-75

OHIO’S 2004 SUPER-DOMA: POPULAR CONSTITUTIONALISM

AND NORMALIZATION IN THE MARRIAGE EQUALITY

DEBATE

WILLIAM N. ESKERIDGE JR.*

I. INTRODUCTION

Born on a farm in Hamilton County Ohio in 1944, Phil Burress is a

towering man (six feet two inches) with a gentle fl eshy face and a sociable

smile that belies a tough-as-nails will.

1

Together with a calm demeanor in

the face of conflict, these features made him a successful union negotiator

on behalf of truck drivers in the Brotherhood of Railway & Airline Clerks.

2

For twenty-five years, by his account, Phil was living what he calls a

“double life,” because he was addicted to hard-core pornography.

3

At age

fourteen, he picked up a pornographic magazine from the side of the road

and became hooked on those fantasies.

4

He would drive into Cincinnati at

every opportunity to buy, borrow, or steal smutty magazines and videos; it

consumed his waking hours.

5

The obsession destroyed two marriages (his

first was entered at age eighteen) and left him psychologically estranged

from his four Christian daughters and spiritually estranged from his

Evangelical roots.

6

Phil’s life changed on September 6, 1980.

7

As a courtesy, Phil had

come to hear his new son-in-law preach at the Church of God in Loveland

Ohio.

8

He didn’t expect to stay for the entire service, so he sat in a back

pew.

9

But he stayed. At the end of the service, when the preacher asked

Copyright © 2019, William N. Esker idge Jr.

* John A. Garver Professor of Jurisprudence at Yale Law School.

1

James Dao, After Victory, Crusader Against Same-Sex Marriage Thi nks Big, N.Y.

TIMES (Nov. 26, 2004), https://www.nytimes.com/2004/11/26/us/after-victory-crusader-

against-samesex-marriage-thinks-big.html [https://perma.cc/GQX8-BREG].

2

Id. See also Samual Smith, Speaker: Citizens Must Spearhead Battle Against

Pornography, BAPTIST PRESS (Dec. 13, 2006), http://www.bpnews.net/24595/speaker-

citizens-must-spearhead-battle-against-pornography [https://perma.cc/B5RL-7UTB].

3

Dao, supra note 1.

4

Id.

5

Id.

6

The account in text is drawn from William Eskridge’s telephone and in-person

interviews with Phil Burress (and, on one occasion, his wife, Vickie, and daughter,

Stephanie) between February and November 2017 [hereinafter Interviews with Burress].

7

See Dao, supra note 1.

8

Id.

9

See id.

696 CAPITAL UNIVERSITY LAW REVIEW [47:695

the congregation to join him in prayer, he obediently bowed his head and

closed his eyes.

10

Phil felt overwhelmed with God’s presence and felt a

transcendent spiritual joy.

11

Time stood still. When he opened his eyes,

the preacher was standing right in front of him, asking Phil Burress to

come forward and accept the Lord as his Savior.

12

He did, and he shed

purgative tears for half an hour.

13

This was his Road to Damascus

experience and after September 6, Phil Burress dedicated his life to

opposing pornography and the unbridled carnality that it stimulated.

14

He

made peace with his neglected family.

With all the zeal of a convert, Phil wanted to prevent kids like him

from being exposed to sexually arousing pornography in Cincinnati, the

home of Larry Flynt’s Hustler magazine, and of dozens of strip clubs and

porn shops.

15

Tipped off by his pastor, he found a crusading home in the

Cincinnati-based Citizens for Community Values (CCV).

16

With his self-

confidence now anchored to a firm spiritual foundation, he revived and

channeled his organizing abilities into the robust family values network.

17

He has always been a doer—not a talker—so he was not interested in

making speeches about pornography; he was only interested in shutting

down sex-based businesses in Cincinnati, store by store, item by item.

18

He did that by alerting police, prodding prosecutors, and organizing

neighborhoods to close down or head off strip clubs, lewd bookstores, and

other sex businesses.

19

Phil knew how to run a meeting: he set forth clear

goals that everyone agreed upon, let people talk, decided on a plan of

action, and then saw who would do what for that plan.

20

When meetings

became heated and tempers flared, Phil employed a unique trick: standing

up—all six feet two inches of him—he would announce, “Don’t you just

hate it when people talk over you?” Calm would descend upon the room in

the wake of his booming proclamation.

21

10

Id.

11

Id.

12

Id.

13

Id.

14

Id.

15

See Linda Vaccariello, Our Man Flynt, CINCINNATI MAG. (June 2002), at 86, 90; see

also PAUL A. DJUPE & LAURA R. OLSON, RELIGIOUS INTS. IN CMTY. CONFLICT: BEYOND THE

CULTURE WARS 75 (2007).

16

Dao, supra note 1.

17

Id.

18

DJUPE & OLSON, supra note 15.

19

Id.

20

See Interviews with Burress, supra note 6.

21

Id.

2019] OHIO’S 2004 SUPER-DOMA 697

Like sexual purity crusaders as far back as Anthony Comstock, Burress

and CCV considered homosexual pornography alarming, as it was a stark

celebration of sex purely for pleasure, with no connection to conjugality of

any sort, much less the Evangelical gold standard of conjugal marriage.

22

Hence, in 1990, CCV led the campaign to shut down the local municipal

art gallery’s plans to display the photographs of Robert Mapplethorpe,

some of which depicted homosexual acts and others eroticized minors.

23

In 1991, Burress retired from the businesses he had been running and

became the president of CCV.

24

In that same year, the Cincinnati City

Council enacted an ordinance barring sexual orientation discrimination by

the municipal government,

25

and in November 1992 the council adopted a

much broader ordinance

26

making it illegal for employers, landlords, and

public accommodations to discriminate against any person because of his

or her sexual orientation.

27

Some faith traditions reject pornography and sex-for-pleasure, but also

believe that homosexuals should not be discriminated against because of

who they are.

28

Some clerics and theologians understood the Roman

Catholic position to be something along these lines. Like many Catholics

and most other Evangelicals, Burress had a different perspective: open

homosexuals should be treated with respect but should not be encouraged

to act on their sexual preferences nor flaunt their sexual and gender

choices.

29

A sexually active homosexual rejects his God-bestowed gender

role and the proper channel for sexual expression, namely, conjugal

marriage. For twenty-five years, he—Phil Burress—had chosen to be a

consumer of pornography. He was no better, nor any worse, than a

homosexual who had chosen to have sex with other men, and he prayed for

22

DANIEL AVILA, MARRIAGE AS A CONJUGAL REALITY 209–10 (2018).

23

DJUPE & OLSON, supra note 18; see also Ellen Uzelac, Ohio jury acquits museum of

obscenity Mapplethorpe show nets no convictions, BALTIMORE SUN (Oct. 6, 1990),

https://www.baltimoresun.com/news/bs-xpm-1990-10-06-1990279001-story.html [https://p

erma.cc/8WBQ-XVCS].

24

DJUPE & OLSON, supra note 18 (Also, in the 1990s, Burress designed golf courses).

25

Ordinance No. 79–1991.

26

Ordinance No. 490–1992.

27

Equality Found. of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289, 291–92

(6th Cir. 1997) (affirming the constitutionality of Issue 3).

28

See James Martin, S.J., What i s the Official Church Teaching on Homosexuality?

Responding to a Commonly Asked Question, AMERICA MAG. (Apr. 6, 2018),

https://www.americamagazine.org/faith/2018/04/06/what-official-church-teaching-homosex

uality-responding-commonly-asked-question [https://perma.cc/T8NF-ER6K].

29

Id. See also Interviews with Burress, supra note 6.