NCSF Announcement on the George Mason University case

NCSF counsel has carefully analyzed the opinion of U.S. District Court Judge T. S. Ellis III in John Doe v. George Mason University. Contrary to what is being said by some people on the internet, the issues actually decided by the Judge had nothing to do with the constitutionality or legality of BDSM. That subject appears only in a throw-away section of the opinion in which the Judge, having already decided the case in favor of the BDSM practitioner who had been wrongfully expelled from the university, decided to give vent to his displeasure with BDSM and with Lawrence v. Texas, and to state his own totally wrong interpretation of Lawrence.

At the outset of the opinion, the Judge announced that he was going to decide two issues. First, did the University use the constitutionally-required procedures in expelling Mr. Doe? He ruled that the University did not. Second, was Mr. Doe’s right of free speech violated by taking action against him for telling his girlfriend privately that he might commit suicide? The Judge ruled that Mr. Doe’s free speech rights were violated. On these grounds, and only on these grounds, the Judge ordered Mr. Doe to be at least temporarily reinstated at George Mason

After all of this, the Judge noted that Mr. Doe had argued earlier in the case – but not for purposes of this decision – that he had a constitutional right to practice BDSM. Then, without any pretense of issuing any order on this issue, the Judge gave vent to his own views on BDSM and Lawrence v. Texas.

There is now no procedure by which the subject of BDSM will be addressed in any further court proceedings. The student, Mr. Doe, cannot appeal this decision because he won. The University might appeal, but only on the procedural unfairness and free speech issues.

NCSF regrets that Judge Ellis felt it necessary to articulate his dead-wrong view of Lawrence. This is but one more example of a judge giving expression to his own moralistic and uninformed displeasure concerning BDSM. But it is entirely what lawyers call dictum. It creates no precedent and does not even have any effect on this case.