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Wednesday, October 1, 2014

Ten Startling Sentences I Can Stop a Conversation With


1.  I Had a Heart Transplant.

Of course, this is the obvious sentence to start with.  Only about 3,500 heart transplants are performed annually throughout the world, so there aren’t a lot of people who can say that they are walking around with someone else’s heart beating inside them.

I had had a failing heart since 1999 when I developed atrial fibrillation and from that an enlarged heart. For the next ten years I was treated by a cardiologist at Ohio State University’s Ross Heart Hospital, and it was clear that my heart was failing. In January of 2009 I qualified for the heart transplant list, but because I was still able to get out and about, I was not high on that list. As recently as October of that year I was told that the transplant would likely take place in 2010, probably in the spring.

It’s one thing intellectually to think you’re getting a heart transplant in 2010, and quite another months before that to receive a morning phone call (I was working at the computer) on Nov. 23: "Mr. Whaley, we have a heart for you."  That was the most startling sentence I’ve ever heard in my life! Of course, the old heart started beating very fast indeed. The caller asked me how quickly I could get to the hospital, and I replied, “Twenty minutes—oh wait, I have to pack (I had spent some time in hospitals and knew all the things I would need to take with me)—how about forty minutes?” “That would be fine,” I was told, so I ventured to stretch it to, “How about an hour?” “Forty minutes,” came back the stern reply. I threw things into a suitcase and climbed into the car.

I have never driven so carefully in my life. The slightest traffic problem—even a fender bender—would have cost me time and possibly the new heart, which I assumed was on ice waiting for me. I arrived at the hospital, submitted to a biopsy (where they run a tube down a vein in your neck and take a small slice of your heart for lab work—I have now had many of these, see below), and at 7:30 p.m. that same day I was wheeled off to the operating room. The surgeon who performed the operation was Dr. Sun, called by the staff “our rock star,” because last past September had done a transplant in two hours! (The normal one takes five or more hours). The heart they inserted had come from Riverside Hospital, which is just around the corner from Ross Heart Hospital (and that was splendid luck since hearts can come from as far away as New York). The surgeon who fetched it from Riverside came by days later and told me that when he first saw it, he thought "that is a beautiful heart." A nurse who watched the operation was surprised that the old heart they removed was so enlarged that it was three times bigger than the new heart they put in. I was home and happy eight days later. Yes, eight days!

The whole experience has been like science fiction. I keep thinking that the more time that passes since this miracle occurred will make it seem more commonplace to me, but no. It still fills me with a wonder that’s growing instead of decreasing. What an amazing world we inhabit in the 21st century!


2.  I Sleep With Both Ears Folded Against My Head.

I’ve always had very large ears, inherited from my grandfather John Whaley, whose ears looked just as elephantine as mine.  Fortunately my curly hair disguises their size but in some photos they stick out.  I sleep on my side, but since I was a little boy I’ve found it uncomfortable to rest my head on this large lump.  I discovered early on that I could simply fold my ear forward and sleep that way.  Plus I always thought it was odd to sleep with every part of your body warm except your head, so I use an extra pillow to cover the head.  This led to folding the top ear as well, and thus all my life I’ve slept with folded ears, which has the further advantage of muffling sound.


This lifelong folding has made my ears very pliable so that they are easily moved back and forth.  The only people who’ve ever noticed this are barbers (“I’ve never seen an ear so easy to move around” is the common comment as the barber moves the ear forward to cut the hair behind it).

3.  My Cat Saved Me From Dying.


4.  On September 11, 2001, I Was Contemplating My Own Death.


5.  My Mother Taught Me How To Deal With Death Threats.

In 1981, I joined a fledgling gay activist movement in Columbus at its very start. It was then called “Stonewall Union,” and now, almost thirty years later is still the largest gay rights group in mid-Ohio under the name “Stonewall Columbus.”  There were major battles in those days, all captured in a DVD of the local movement’s history [available on YouTube at], where I can be seen addressing the annual gay pride march on the Ohio Statehouse lawn and teaching the crowd how best to deal with near-by protestors, holding Bibles and teaching hatred to their little children. Some of the battles were public (a near riot in the Columbus City Council meeting when a gay rights ordinance was proposed), some private (I was jumped by a gang of teenagers one night, and was kicked around, most violently in the testicles, which was—how shall I put this?—no fun). Interestingly, I learned how to handle phoned death threats from an unusual source: my mother.  Dad by this time was a prosecutor in Dallas, and he was so good at it he’d been promoted to prosecuting “career criminals” (i.e., the Mafia). Mom would get phone calls telling her she and Dad would both die unless he stopped one of these trials from occurring, so she had some practical experience to pass on to her son. “What I do, Doug,” she advised, “is to say loudly, ‘Operator, this is one of those calls, please trace it.’ The caller hangs up immediately!” Then Mom added, “The opposite happened of what he’d planned.  He called to scare me.”  Of course, in those the days there were no such innovations as caller-ID, which (I hope) has made such calls rarer. I tried Mom’s method and it worked admirably.


6.  My Becoming a Law Professor Was an Alphabetical Accident.

With many thanks to Jay Westbrook for being a “W”:


7.  I Flunked a College Course and Nearly Flunked It Again When I Repeated It.


8.  My Father Followed Me Through Law School.


9.  I Didn’t Go Through Puberty Until Age 23.

An early medical problem that affected my life greatly:


10.  I’ve Endured Around 50 Surgeries.

By “surgeries” I mean any procedure in which cutting was done on my body.  Some of these were small (cataract surgeries in both eyes) or lasik surgery, for example, but others were major (most obviously the heart transplant).  The first happened when I was in second grade and had my tonsils removed, and the most recent was a week ago Thursday when my ophthalmologist zapped my left eye fifteen times with a laser to remove a film causing me major vision problems.  I ruptured my appendix in 1978 and this led to my belly being sliced open six times in major surgeries; for the blog post on point see  Then, as topic #4 above explains there occurred much slicing open of my upper chest to take in and pull out a defibrillator in the years prior to the heart transplant.  As one point I had major problems with my nose which led to my turbinates being cut away by lasers.  And in 2013 I had a total knee replacement.  A blog clot in my leg required stents being inserted/removed in my body four times, and there have been an number of surgeries related to problems with my heart including one in which a dual electrical system had to be cut out.

Heart biopsies have led to most of the surgeries that count in the big number listed above.  In this interesting medical procedure, which takes about 45 minutes, the cardiologist inserts a tube into my neck on the right lower side, threads it down to the heart (which, trust me, does not like this invasion) and takes a four tiny snips for analysis, pulling them back up the tube.  Sounds like fun, right?  A couple of months before the transplant I had the first of these procedures. The next one was the day of the transplant itself (Nov. 23, 2009), and periodically thereafter (once a week for the first couple of months, then once a month for a year, and then three times a year, and, eventually, once a year), I have had and for the rest of my life will have to endure these occasionally. There have now been about thirty over the last five years.

None of these major or minor surgeries include other traumatic incidents in my life like breaking an arm (age ten) or a leg (age 16), nor bouts of various illnesses, including aspergillus which took me down immediately after the heart transplant and kept me in the hospital over New Years [see].

So when people hear about my having had a heart transplant they sometimes ask if I was afraid when I was on a gurney being wheeled down a hall on my way to surgery.  I sigh and answer that—alas—I’m used to it.  As one blog post explained, I’ve walked away from death quite a number of times and am, happily, still here:

Related Post:
“The Best of My Blog,” April 29, 2013


Saturday, September 27, 2014

Clicking on “I Agree”: Sticking Your Head in the Lion’s Mouth?

It happens to all of us once a week or even more often.  We’re enticed to enter into some transaction on the web and before the requested services/goods will be forthcoming we’re given a lengthy document to read that contains the “take it or leave it” terms of the supplier.  Unless willing to abort the transaction at this point, writing off the experience as a waste of time, we uneasily click on the “I Agree” icon.
Do you, blog reader, read the terms?  Most people don’t.  They are mind-numbingly detailed, written in dense legalese, meant to be too dull to contemplate, all in all the sort of thing Mark Twain once called “chloroform in print.”  Writing this sort of legal mumbo-jumbo in such a fashion that it’s almost impossible to stay awake long enough to both decipher and appreciate, is a much valued legal art.  The lawyers who wrote it don’t want you to read it.  They want the task to overwhelm you so that you just give in, wave the white flag, and click “I Agree.”
I’m a law professor who has taught the law of contracts over forty years (and authored a widely-adopted textbook on point).  So this blog post is a feeble attempt to answer this question: what is the legally smart thing to do when faced with that scary “I Agree” icon.  Is it binding?  How much trouble are you in if you agree?
Some contracts are too unfair to be enforced.  Once you have accepted this premise, the question becomes primarily one of drawing the line between a mere hard bargain and a contract so filled with one-sided boilerplate that it amounts to what one court called “carrying a good joke too far.” [Campbell Soup v. Wentz, 172 F.2d 80, 83 (3d Cir. 1948)]  Contracts containing harsh, unnegotiated terms presented to the other side on a “take it or leave it” basis are called adhesion contracts, because one party must adhere to the will of the other. They are said to resemble a law more than a contract.

If the contract contains terms that are so unfair as to be deemed “unconscionable” (beyond the boundaries of conscience), courts will typically toss out the unconscionable terms and enforce the rest of the agreement.  The idea that a contract may be unconscionable and therefore unenforceable in whole or in part is an old concept, with us at least as early as the mid-1700s (and, in fact, similar devices were available in Roman law).

Unconscionability is a wild card doctrine.  Ahead of time it’s hard to predict what clauses will strike the courts as too unfair to be enforced.  Certain things do usually pass muster: agreements to arbitrate all disputes have been given a broad blessing by the United States Supreme Court, which favors arbitration because there is a federal law saying so.  In the same case [AT&T Mobility v.  Concepcion, 131 S.Ct. 1740 (2011)] the Court blessed the practice of forbidding class actions on behalf of many injured parties, which is a shameful thing to forbid because otherwise miscreants go unpunished.  But there are arguments on both sides of those issues.  Where the contract calls for something truly outrageous (“Failing to make a payment means you will lose both your American citizenship and first-born child”) the courts will certainly strike down such clauses as unconscionable, and, if sufficiently upset, might even strike the whole contract out of legal existence.  In addition, many states have consumer practices statutes that forbid certain clauses or regulate them (warranty disclaimers, for example).

Professor Karl Llewellyn of the Columbia Law School was one of the great legal minds of his day and the author of many famous discussions of commercial problems. When he tackled the problem of unconscionability, he came up with his celebrated “true answer” to the issue of enforcing harsh clauses in contracts:

The answer, I suggest, is this: Instead of thinking about “assent” to boilerplate clauses, we can recognize that so far as concerns the specific, there is no assent at all. What has in fact been assented to, specifically, are the few dickered terms, and the broad type of the transaction, and but one thing more. That one thing more is a blanket assent (not a specific assent) to any not unreasonable or indecent terms the seller may have on his form, which do not alter or eviscerate the reasonable meaning of the dickered terms. The fine print which has not been read has no business to cut under the reasonable meaning of those dickered terms which constitute the dominant and only real expression of agreement.

Karl Llewellyn, THE COMMON LAW TRADITION: DECIDING APPEALS 370 (1960).  He added that someone signing an adhesion contract is doing something similar to putting one’s head into a lion’s mouth and praying it’s a friendly lion.

Court decisions on “I Agree” internet contracts don’t agree.  Compare Riensche v. Cingular Wireless, LLC, 2006 WL 3827477 (W.D. Wash. 2006) (no unconscionability if consumer clicked on “I Agree” icon), with Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593 (E.D. Pa. 2007) (finding unconscionability in spite of consumer’s clicking “I Agree” icon).  The differences appear to be between judges who are strict constructionalists and who seem to think it’s still the 19th century when contracts were truly negotiated and they respect absolutely the old legal maxim that “those who ignore the duty to read are bound by what they sign,” contrasted with judges who recognize that in the 21st century contracting requires adherence to dictated terms over which one has no choice at all.  The latter judges are willing to police whether the lion gets to swallow users whole or not.

So what do I do?  Like most people on the planet, I grudgingly yield to the inevitable and don’t even attempt to read the morass of legal confusion that masquerades as a negotiated contract.  As I put my head into the lion’s mouth I’m willing to endure some saliva dripping on my clothes and just hope that there will be no teeth chewing on important parts of my body.

Related Posts:
“How I Became a Law Professor,” January 27, 2010
“I Threaten To Sure Apple Over an iPad Cover,” April 8, 2011
“The Payment-In-Full Check: A Powerful Legal Maneuver,” April 11, 2011
“What Non-Lawyers Should Know About Warranties,” October 11, 2011
"How To Write an Effective Legal Threat Letter," October 19, 2011
“Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article,” February 11, 2013
“Legal Terms You Should Know,” September 13, 2013
“How To Respond to a Legal Threat.” March 29, 2014 
"A Guide to the Best of My Blog," April 29, 2013

Monday, August 18, 2014

Five Judges Have Stopped All Further Progress on Gay Civil Rights Legislation

[The three women on the Court dissented]
In Burwell v. Hobby Lobby, decided by the United States Supreme Court a few months ago, the Court’s five conservative—and Republican—justices (over the vigorous dissent of the four liberals) decided that a corporation like Hobby Lobby (the stock of which is owned by a very religious family) is protected by the First Amendment’s freedom of religion clause and thus could use religious beliefs to object to funding family-planning coverage for its employees.  Corporations are now “people” too and religious corporations can go to church just like other U.S. citizens! This was a natural enough extension of the Court’s infamous decision in Citizens United v. FEC (2010), which declared that corporations were “persons,” thus entitling them to the full protection of the U.S. Constitution (with freedom of speech permitting them to spend as much money as they like: influencing elections, flooding us with billions of dollars to promote campaigns and drowning out the speech of ordinary individuals).  Whew!

The swing vote, of course, in both decisions was that of the most powerful judge in the world, Justice Anthony Kennedy (second from the right in the picture above), who sometimes votes with the liberals and sometimes with the conservatives, allowing him to decide all the important controversial cases.  He’s been terrific on gay issues while on the bench and authored last year’s groundbreaking Windsor decision which forbade the federal government from discriminating against gay people when it came to the recognition of their marriages.  That case said nothing about whether the states are required by the constitution to recognize the rights of gays to marry, an issue the Court will have to decide by the end of next June.  I’ve predicted in the past (and stand by the prediction) that the Court will come out in favor of gay marriages nationwide, a wonderful result and a big moment in gay history.  [See “Gays Will Be Able To Marry in All States By July of 2016 (and Maybe 2015),” February 14, 2014, ]

It would doubtless surprise Justice Kennedy and, indeed, all of the four other conservative Justices who joined in the Hobby Lobby majority that one probably unintended result of the decision is that no more gay rights legislation protecting the LGBT community from discrimination in employment, housing, or public accommodations is ever likely to pass in the future.

As I’ve also noted before it’s perfectly legal in many states to discriminate against gays.  [See “Is It Legal To Discriminate Against Gay People?” March 17, 2014; ].  Recently in Pennsylvania, where it has recently become legal for gays to marry, lesbian couples have been turned away from a bakery that refused to make them a wedding cake and a bridal shop that refused to sell them gowns in both cases based on the owner’s religious beliefs that serving gays would cause the owners to be denied entry into heaven; see   Those actions are perfectly legal because Pennsylvania has no state law granting civil rights protection to gays from such discrimination (some of the cities in the state have enacted such protection as municipal ordinances).
Ah, but you might ask, with the mood of the country now heavily favoring the rights of gays isn’t Pennsylvania and many other states likely to enact such protection?  No, they aren’t, as I’ll explain in a moment.  Nor is the federal government likely to change existing civil rights laws to add protection for gays.  Those happy days are over, and as an old gay activist this depresses me.  We worked so hard in Columbus to get a civil rights ordinance on point and swore that the State of Ohio would someday follow, but that latter part is wrong. [See “The History of Gay Rights in Columbus,” June 4, 2012, ] Here’s why:

The current federal Civil Rights Act prohibits (among other things) discrimination in hiring based on various characteristics such as gender, race, religion, etc.  Since 1974 there’ve been efforts in Congress to amend the Civil Rights Act to add sexual orientation and gender identity to the list.  The current version of the proposed legislation is called the “Employment Non-Discrimination Act” [ENDA] and, surprisingly, it passed the Senate last fall with bipartisan support, but has no chance of passage in the current Republican-controlled House of Representatives.  No matter, because many LGBT and liberal organizations [The American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center, but, notably, not the Human Rights Campaign] have withdrawn their support of the current version of ENDA because the Hobby Lobby decision sparked the addition of an amendment that would exempt organizations who discriminate on the basis of religious beliefs.  That’s right: any employer who claimed a religious aversion to homosexuality could post signs saying “No Homos Need Apply.”  We all know that a version of ENDA that exempts religious decisions to hire or fire gays would be a toothless tiger, and that’s led liberal groups to strip away their endorsement of ENDA.

The hope is that future versions of ENDA at both the federal and state level will exclude such an exemption (except as to hiring by religious organizations, say a church, themselves), but you might as well kiss that vain wish goodbye.  Every time some version of ENDA is proposed hereafter there will be an immediate amendment offered to adopt a “religious beliefs” exception, and what politician, federal or state, ever hoping to be reelected will be willing to vote against religious beliefs?

So I’ll say it here: attempted gay rights legislation at all levels is dead unless it gives religions a pass and allows them to hire or fire gays at will, forbid them housing, or deny them the right to buy wedding cakes (“public accommodations”).  Indeed in the near future there might be major pushes to add religious exemptions to existing statutes and ordinances protecting gays from just such miserable treatment.

The Hobby Lobby decision has opened the door to the argument that people (including corporate people) have a right to discriminate against anything or anyone that violates their religious beliefs.  I’m no constitutional law scholar (my field is commercial law), but it will be interesting to see if the Court now says, for example, that a Muslim-run organizations may refuse to hire Jews since the Quran entombs hatred of the Jews as a basic tenet.  Surely the Court won’t go that far, but how do we tell the Court’s Hobby Lobby blessing of a religious objection to abortion (a constitutional right since Roe v. Wade) from a religious objection to dealing with groups who are sinners in the texts of various sacred books.  [See “Does the Bible Really Condemn Homosexuality?” June 29, 2014;  ]

When the five conservative Republicans (all Catholics, by the way) sided with Hobby Lobby’s refusal to obtain insurance to protect their employees’ family planning needs, didn’t the Court see that this can of worms includes some very destructive snakes?  One of those serpents— damn it!—will devour the hopes of gays for protection they so dearly need.
A Religious Business Belief To Pray For
Related Posts:
“A Guide to the Best of My Blog,” April 29, 2013

Wednesday, August 13, 2014

A Robin Williams Story: The 1983 Bardathon

David Ogden Stiers in M*A*S*H
When I was living in San Francisco in 1983 the College of Marin, which is located just north of the city, announced that it was going to hold a “Bardathon” in which the complete works of William Shakespeare, both poems and plays, would be read on its stage without stop starting one Thursday night and finishing early the next Monday morning.  The College asked various community theaters to choose a play to read and also solicited actors in the area to come up with a group of their friends to do the same.  If I recall right, David Ogden Stiers, who played Major Charles Winchester on the TV show M*A*S*H, selected “Hamlet” for himself and friends on the theory that it would be his only chance to ever perform the part in public.

One of the alums of the College of Marin was Robin Williams, who studied theater there.  When he was asked to participate he chose “The Comedy of Errors,” but he had a unique take on the play: he portrayed all 17 characters himself!


Since there were no breaks in the performances, some were done in the dead of the night to little or no audience at all, but Robin Williams  was scheduled in prime time, and the play that preceded his had a full house, at least towards its end, as the theater filled up waiting for the great comedian, who received tremendous applause when he finally stepped from the wings.

His only prop for the play was a sock puppet, with whom he conducted the dialogues, and to keep the audience from confusing the characters he not only did crazy mannerisms but used broad and outrageous dialects for the differing parts: some spoke with a German accent, some French, there was a hillbilly, a sassy black woman, etc.  One observer said, “He riffed through it by himself – tangents, improvs, a dozen voices. A fully formed comic whirligig of invention. He was jaw-droppingly dazzling.”  The audience roared and the newspapers reported his triumph the next day. 

I much regret that I didn’t see the performance, but it was the talk of the town.  We are all poorer because there isn’t a YouTube video of it.

And, of course, we’re devastated by the tragic death of this talented actor and comic genius.  He will be sorely missed.

When inexplicable endings come to someone as celebrated as Robin Williams we shake our heads in sorrow and ask ourselves why, with all his talents and advantages, this had to be his fate.  But no one ever really knows what goes on in another person’s head.  Let me close with the famous poem by Edwin Arlington Robinson that makes this point well:

Richard Cory
Whenever Richard Cory went down town,
We people on the pavement looked at him:
He was a gentleman from sole to crown,
Clean favored, and imperially slim.

And he was always quietly arrayed,
And he was always human when he talked;
But still he fluttered pulses when he said,
'Good-morning,' and he glittered when he walked.

And he was rich - yes, richer than a king -
And admirably schooled in every grace:
In fine, we thought that he was everything
To make us wish that we were in his place.

So on we worked, and waited for the light,
And went without the meat, and cursed the bread;
And Richard Cory, one calm summer night,
Went home and put a bullet through his head.


Related Posts:
With Tim in San Francisco—1982/1983,” August 6, 2011
“A Guide to the Best of My Blog,” April 29, 2013

Tuesday, July 29, 2014

The Social Grump: No Handshakes, Kissing or Sharing Food For Me

Okay we all have our own little idiosyncrasies and for the most part we expect the world to deal with them.  I have three (well, perhaps there are many more, maybe even a thundering lot, but these are ones I’m willing to admit here).  These three, alas, make me something of a social grump and doubtless the cause of snide comments behind my back.

Two of them are health related.  As readers of this blog may know, in 2009 I had a heart transplant and while that has put me into excellent physical condition it has left me with a weakened immune system.  Let’s deal with those two first.

1.  Shaking Hands.

While I will routinely shake hands when introduced to someone, I never do so in hospitals for obvious reasons.  Hospital personnel are generally pretty good at understanding my reluctance.  A recent USA Today article reported on

studies that have found all sorts of nasty germs on lab coats, sleeves, ties, watches, rings and even shoes worn by health workers. Studies have yet to show that grimy coats and swinging ties play a major role in spreading those germs.

But there have been calls to ban ties on doctors in hospitals and increased emphasis on hospital personnel frequently washing their hands.  Since I spend a lot of time with doctors I wash my hands thoroughly after all such visits (and, frankly, every time I come back to my house from anywhere).

This morning’s Columbus Dispatch had this to say:

NEW YORK — Ditching handshakes in favor of more informal fist bumps could help cut down on the spread of bacteria and illnesses, according to a study released yesterday.

The study in the American Journal of Infection Control found that fist bumps, where two people briefly press the top of their closed fists together, transferred about 90 percent fewer bacteria than handshakes.

“People rarely think about the health implications of shaking hands,” Dave Whitworth, a biologist at Aberystwyth University in the United Kingdom who co-authored the study, said in a statement.

“If the general public could be encouraged to fist bump, there is genuine potential to reduce the spread of infectious diseases,” he said.

The study used participants who wore gloves that had been thoroughly coated in a film of nonpathogenic E. coli bacteria. They then variously shook hands, high-fived and fist-bumped fellow participants in sterile gloves, and the amount of transferred bacteria was examined.

High-five slaps transferred about half the amount of bacteria as shaking hands.


2.  Kissing in Social Situations. 

Let me be clear: I kiss my husband a good deal and enjoy it a lot. 

But I never kiss anyone else in social situations, not even relatives or close friends.  Kissing can easily spread meningitis, herpes (which, unlike friendship, never goes away), hepatitis B, 100 different respiratory cold and flu viruses, cytomegalovirus (CMV, which for people with weakened immune systems can remain in the body for life), gingivitis, and mononucleosis (commonly called “the kissing disease”). 

A peck on the cheek or forehead is fine in social situations—a nice substitute for a buss on the lips.


3.  Sharing Food.

For reasons having nothing to do with health, I’m loath to share food, even food I’ve not yet touched.  I’m very territorial about my dinner plate and resist suggestions that we should split up our meals with others at the table.  To hell with that!  In such situations I have caveman instincts: I killed it and it’s mine so touch my food and die!

Asian or Middle Eastern restaurants often seem to bring out in others this urge to share (“Oh, waitress, just put all the meals on a turntable in the middle and we’ll all help ourselves!”).  Awkwardly I dodge such ritualistic food swaps with pitiful excuses (“I have such allergies!”—a palpable lie . . . in reality I have none).


4.  Conclusion.

Well now I’ve fessed up and gotten these flaws out there in public.  So when you and I go out to dine we’ll fistbump when we first meet, smile instead of kissing, and happily stick to eating our own food.

You’ll find that other than these minor flaws I’m quite perfect.

Related Posts:
"The Purring Heart," November 23, 2010
“A Guide to the Best of My Blog,” April 29, 2013

Tuesday, July 22, 2014

Are Gays Really Just 1.6% of the U.S. Population?

The Centers for Disease Control and Prevention, the federal government’s watchdog for health statistics has just released a 2013 National Health Survey on its gay citizens, which it compiled by having the Census Bureau interview 33,557 adults between the ages of 18 and 64.  The actual report can be found at  The government began by asking respondents their sexual orientation.  Only 1.6% of those willing to be interviewed self-identified as gay, with another .7% announcing that they were bisexual.  This is the lowest estimate of the number of gays in the country produced in modern times and it’s caused quite a stir.  Homophobes were thrilled, with one blogger exclaiming, “
The CDC is doing a service, because it has clearly de-bunked the ‘10% of the population’ claim that the gay-rights movement has routinely pushed,” and another stating that even this new number is too high: “This comes from the Obama machine, trying to normalize their perversions. . . . The real number is less than 1/10th of 1%.”  (Some people are never satisfied.)  Many rightwing commentators bloviated that if there are that few gays in the country they're seriously over-affecting the national scene, and have way too much political clout.  One asked, “Does every TV show have to have a gay character if there are so few of them around?”  The American Family Association, proud as always of its homophobia, promptly noted that gays are a
“tiny little minority” and added, “It's almost comical that we have allowed these people to have so much power in our culture where they can force their deviant lifestyle into the public sphere and compel so many sectors of society to recognize this and to celebrate it as some kind of normal lifestyle.” [See]
I’ve explained before on this blog why the true number of gays and lesbians in the country is at least ten percent [click on these links: “How Many Homosexuals Are There in the World,” November 8, 2010 at and “Homosexuality: The Iceberg Theory,” April 25, 2010 at].  Must I now retreat from that claim, nibbling humble pie? 

Nope.  Ten percent or higher is still my number and this blog post explains why.

Getting accurate statistics about homosexual desire is an almost impossible task. The reasons are obvious: in most countries homosexuality is so buried that people will not answer questions truthfully about it, or, even if they do, they may not know the truth. I lied to myself until age 32 about whether I was a homosexual, and during that period I would certainly have answered “no” to a questionnaire on point, even though in reality I was always a homosexual. In a 1993 study questionnaires were mailed to thousands of American men asking about their sexual orientation. There was a large no-response rate, and those responding proudly declared they were very heterosexual. As a follow-up to the no-response questionnaires, the study leaders sent women with clipboards to ring doorbells and ask men the questions orally. Of the men willing to talk to the women, almost none said they were gay. So the study’s ultimate conclusion was that homosexuals made up only 1% of the population of the United States. This ridiculous nonsense was much derided by experts in statistical analysis and by gay people themselves.  At the 1993 "March on Washington for Lesbian, Gay, and Bi Equal Rights and Liberation" this was a popular button worn by marchers:


This new survey suffers from similar problems.  People and households were contacted and asked if they were willing to participate in the study, which was done face-to-face, with follow-up telephone interviews.  I believe that huge numbers of them lied about their sexual orientation, and here is a list of the reasons why:

1.  Married People.  Almost all of the married male/female couples said they were both straight.  Well . . . duh . . . of course they would!  If you’re gay and in a marriage with a person of the opposite sex you don’t suddenly come out to him/her when a government worker with a computer comes a-calling. You lie and avow complete heterosexuality.  But back in the days when I went on gay dating websites looking for love/lust, about half of the men who contacted me were married (at which point I refused to get involved).  I was once married to a woman myself and didn’t admit to her that I was a homosexual until I decided that even though it would break up our marriage it was the honorable thing to do [see “The Aging Gay Activist,” March 24, 2012 at, “I Married a Hippy,” April 14, 2010 at], and “Marijuana and Me,” July 11, 2010 at].

2.  Kids Under 18.  For the children in the home under 18 the parents revealed their sexual orientation and—wouldn’t you just know it?—there were almost no gay children.  But a fairly recent study of high school students in the Washington area had it that 15.3% of respondents identified as gay, lesbian or bisexual.  Hmm. 15.3%?  What will that number be when they get older?  At the magic age of 18 will they suddenly become so heterosexual that it will shrink to 2.3%?

3.  It’s the Federal Government at the Door!  In 2014 when everyone is suspicious of the government for overzealous information gathering and invasion of privacy, how many gay people want a federal record of their sexual orientation to go into the national data base?  You’d have to be very, very comfortable with both your sexual orientation and your place in the world before you answered truthfully.

4.  Self-Identification Often Comes Late.  Many gay people don’t come out, even to themselves, until fairly late in life.  As I said above, I was 32 before I finally admitted the truth, even though on some level I always knew but—embarrassed and confused—hid the answer deep inside.

Alfred Kinsey
The most reliable statistics on sexual orientation we have came from at time when the issue was so hidden that a private research study on all sexual issues (like masturbation, number of partners, fidelity to spouse, etc.), done anonymously, could get people to tell the truth.  In the late forties and early fifties, Dr. Alfred Kinsey and associates at Indiana University published ground-breaking studies of human sexuality in the male and female: Sexual Behavior in the Human Male (1948) and Sexual Behavior in the Human Female (1953).  The most shocking chapters gave the world the first statistics on homosexuality, and surprised everyone by coming to the conclusion that more or less ten percent of those interviewed (and many thousands of subjects were interviewed) were predominantly homosexual for at least three years of their adult life.  Kinsey devised a scale by which to measure homosexual orientation; the scale goes from “zero” (totally heterosexual) to “six” (totally homosexual), with the numbers in between reflecting increasing homosexual desires. Someone who is truly bisexual would be a "three" on the Kinsey scale. The fives and sixes on Kinsey’s scale (predominantly and totally homosexual) total to around ten percent, which is where that oft-heard ten percent estimate of the number of homosexuals comes from. [This is only a rough description of Kinsey’s scale, which is actually more complicated than that, particularly for females, but it will do for this discussion.]  The Kinsey statistics have been attacked, but have stood the test of time.  The Kinsey scale:

0- Exclusively heterosexual with no homosexual
1- Predominantly heterosexual, only incidentally homosexual
2- Predominantly heterosexual, but more than incidentally homosexual
3- Equally heterosexual and homosexual
4- Predominantly homosexual, but more than incidentally heterosexual
5- Predominantly homosexual, only incidentally heterosexual
6- Exclusively homosexual

I think the Kinsey scale is right in that people have very different attractions to homosexual behavior, but
I also think Kinsey got the percentages wrong. The number of gays is still underestimated.  Kinsey himself recognized the difficulties that bother me.

The first is that Kinsey only interviewed volunteers who were willing to talk about the most intimate aspects of their sex life. Granted that Kinsey found many such people, but they can hardly be representative of the whole population, particularly where the subject is as alarming as is the topic of homosexuality. My father was a student at Indiana University when Kinsey took his survey and was in fact one of the people Kinsey interviewed. Had I been in his place and one of Kinsey's assistants had asked me if I, Douglas Whaley, would be willing to grant an anonymous interview about my most private sexual thoughts, I would have stiff-armed the assistant immediately and fled the scene in absolute terror. In my own college days I was still caught in the throes of societal homophobia, and I was not even talking to myself about homosexual urges. I dare say this is true of many, perhaps most people who later admit the truth and “come out.” Indeed, in the 1940s a large percentage of those aware of their homosexual desires must have been most unwilling to be interviewed by Kinsey and his crew.  The Kinsey statistics have been attacked, but have stood the test of time; see the discussion in Wikipedia at  

Another difficulty with the Kinsey percentages lies in the definition of “homosexuality.” Even if Kinsey had a definition for the term (and he did), his subjects were not likely to appreciate it, and their own internalized homophobia would lead them so stretch everything they could into a heterosexual mold. My father, for example, believed that the excited recipient in an oral sexual encounter was not engaged in a homosexual act and could therefore truthfully answer “no” to the question of homosexual attractions. I hold that there are more people in the middle part of the Kinsey scale than anyone (even me) suspects. These people don't think of themselves as “homosexuals,” but they have some homosexual desires, and many of them on occasion act upon them. What they don't do is admit that this is happening. These people are the submerged portion of the iceberg. 

What we really need is a completely anonymous study where people truly believe that they can tell the truth about their sexual orientation without repercussions. Sociologists should try a large scale use of “clickers” on a representative group; that should prove illuminating [see “Clickers,” March 17, 2012 at]. Some headway has been made on the internet.  For a website finding that that with anonymous clicking the Kinsey scale increased the categories 5 and 6 to 16% of the population, see

Finally, okay, what if I’m wrong?  Let’s suppose that none of those things mentioned above skewered the results and that every one of the 2013 respondents both answered truthfully and were not wrong in their own self-assessment—and thus only 2.3% of the U.S. population is gay or bisexual. That would still amount to 7,222,000 people (almost 2 million more than the number of Jews in this country).  If these gay/bi folks were all living exclusively in the same state that state would be the thirteenth largest state in the country, bigger than 37 others.  Wouldn’t it be a mistake to discriminate against an entire state that large?  Does it then lessen the harm if the people are disseminated around the country? 

Let’s see if we can’t we agree on the following idea: the reasons for treating any minority the same as the majority shouldn’t depend on the number of people involved, but on the basic decency of granting fair treatment to all U.S. citizens.

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“A Guide to the Best of My Blog,” April 29, 2013 at