The Faculty Lounge

Exploring "Educational" Epithets

The image of the t-shirt in Eric's post, and the various reactions it received (mine included) have been very enlightening. The use of insults and slurs can be used as "teachable moments" in various classroom settings, but we all have a moral compass that makes us seriously take pause when a certain usage crosses the line. In Advocacy to Zealousness, many of the films I've included have a secondary purpose of encouraging the exploration of various elements of diversity in the legal profession. Some of the films include the use of slurs. Perhaps the most famous example is To Kill a Mockingbird (1962). Another is Gentleman's Agreement (pictured, 1947), an earlier film starring Gregory Peck that explores Anti-Semitism. My question concerns open discussions of diversity in classroom settings, either with law students or during CLE presentations involving attorneys. How do you approach these topics in classroom settings? What steps do you take to ensure that these potentially-heated subjects are discussed openly and civilly?

Obama Administration Appeals Bankruptcy Ruling Finding DOMA Unconstitutional

Two weeks ago, the Bankruptcy Court for the Central District of California ruled that the Defense of Marriage Act was unconstitutional.  The case involved two men who were legally married in California (in that small window of legality back in 2008).  The U.S. Trustee said they couldn't file as a married couple because of DOMA, but the Bankruptcy Court found, in a resoundingly strongly worded opinion, that DOMA violated their equal protection rights as guaranteed by the Fifth Amendment.

There were many amazing things about the opinion.  First, it was signed by 20 of the 24 bankruptcy judges from the Central District, including the Chief Judge.  Second, it relied heavily on Attorney General Eric Holder's memo stating that the DOJ was not going to defend the constitutionality of DOMA.  Third, it found DOMA unconstitutional under heightened and rational basis review.  Fourth, it talked about discrimination based on sexual orientation and gender.  In sum, it was an amazing opinion for those who have been saying for a long time that DOMA is patently unconstitutional.  And, with the Obama administration publicly stating that it is no longer defending the constitutionality of DOMA, the decision was safe....

Until earlier this week, when the administration threw its previous statement completely out the window and appealed the decision of the Bankruptcy Court.  The U.S. Trustee, controlled by the Department of Justice, which is headed by Attorney General Holder, decided that the United States must defend the constitutionality of a statute that the administration has said is unconstitutional.  Moreover, the Trustee is appealing a decision that explicitly relies on the Trustee's overseer's rationale in finding the law unconstitutional.

The Trustee has some logic behind the appeal.  In the appeal, the Trustee explained: "Although Attorney General and the President have concluded that Section 3 of DOMA, as applied to legally married same sex couples is subject to heightened scrutiny and is unconstitutional under that standard, the President has instructed that Executive Departments and agencies continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional."

The Trustee is evidently pointing to the following language from General Holder's letter: "Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.   To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.   This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised."

I think it's quite clear that the Trustee has misread the Holder letter.  Although it's true the Holder letter states that Executive Branch officials shall continue to enforce DOMA, the letter also clearly states the the Department of Justice, which the Trustee's office is a part of, will "advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard."  Moreover, "the Department will cease defense of Section 3."  The letter is setting up a distinction between executing the law, which the Executive Branch will continue to do, and defending the law, which it will no longer do.

By appealing, the Trustee is not simply executing the law but is defending the law.  This is a direct contradiction of Holder's letter which says the Department will not defend the law.  There are only two conclusions then: one, the Trustee is taking action beyond its authority as a member of the Department of Justice or two, President Obama, consistent with his completely non-sensical and clearly politically-calculated position on gay marriage, is going back on the Holder letter from earlier this year.

I sure hope it's the former.

Cross-posted from Feminist Law Professors.

DOMA, ENDA, and Sexual Orientation as an Immutable Characteristic

Last week the Obama administration announced that it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage for federal law purposes as a legal union between a man and a woman.  This development was welcomed by gay rights advocates.  

However, we are still a long way away from establishing comprehensive federal anti-discrimination mandates to protect homosexuals.  The Employment Non-Discrimination Act (ENDA), which would ban workplace discrimination based on sexual orientation and gender identity has been introduced in almost every Congress since 1994 but has failed to pass. 

ENDA would be consistent with other well-established civil rights protections.  The civil rights statutes can be understood to protect discreet and insular minorities with a history of discrimination.  This civil rights model would appear to encompass the gay community. In the alternative, the law can be understood to prohibit discriminatory conduct based on effectively immutable characteristics.  Many now believe that sexual orientation is biological in nature, and I would argue that it is at least as immutable as religion, which is a protected characteristic.

I have written extensively about the concept of immutability in employment discrimination law in an article  that is forthcoming in the William and Mary Law Review.  What do you think, will American society soon be prepared to support legislation such as ENDA?

Today's Prop 8 Decision - Increasing the Chances of Mootness Before the Supreme Court Gets the Case

Back in August, I wrote that the Prop 8 case might never get decided by the Supreme Court.  The theory was that by the time the Supreme Court could hear and decide the case, the California voters would vote to repeal Prop 8.  As I understand things, advocacy groups in California are working to get a repeal on the ballot for November 2012 with the thinking being that demographics will be more favorable (i.e., younger people become voters, older people die off, attitudes generally become more tolerant, etc.).

The Ninth Circuit's expedited hearing in December put a bit of a kink in my theory, but today the chances of the case being mooted increased by a lot.  The Ninth Circuit decided to punt the case . . . for now.  In its decision, the Ninth Circuit certified the question of standing to the California Supreme Court.  I don't have any information about the general timeline for questions certified to the California Supreme Court, but there's no arguing that this doesn't delay the case, possibly substantially.

Now, the following things must happen before the case is decided by the Supreme Court:

• Briefing, argument, and decision by the California Supreme Court.
• Decision by the Ninth Circuit (with possible re-briefing and re-argument depending on what the California Supreme Court says).
• Certiori briefing and decision by the Supreme Court.
• Merits briefing, argument, and decision by the Supreme Court.

Under my theory that Prop 8 will likely be repealed by California voters, this all has to happen before November 2012, just 22 months from now.  (And my list of things that have to occur doesn't even include a possible en banc process in the Ninth Circuit.)

I just can't see the wheels of justice moving this quickly, so I'm sticking with my original post - this case will probably be mooted.

Cross-posted at the Feminist Law Professors blog.

DADT: Game Changer Of Epic Proportions

I like to get on conservative email lists so I can see what the other team is saying about various issues.  For example, I'm a regular recipient of mail from Tony Perkins at the Family Research Council.  Today,  as I was cleaning out my box, I noticed this language in a week-old email from FRC  regarding the possible repeal of Don't Ask, Don't Tell.

 If they succeed in the eleventh hour of this Congress, liberals will have scaled the walls of one of the last bastions of American society: the U.S. military. Not only would this jeopardize national security--as three of the four military chiefs warned--but it would be a game-changer of epic proportions. The momentum would be theirs to carry this agenda even deeper into the states and force a retreat on all kinds of legislation.

What's next as these liberals surge into Pierre, Concord, and Jackson?  Gay partners gaining rights under state probate law?   Bone marrow transplants for the poor?  Heaven forfend! 

New Jersey Privacy/Hate Crime Prosecutions

I've been recently following the case of the Rutgers student who committed suicide last week after videos showing him engaging in a homosexual encounter were posted on the Internet by his roommate and another student.  Of course, the case raises many issues about cyberbullying and invasions of privacy.  But what particularly interests me - and others may be able to illuminate the law on this - is that New Jersey appears to have very strong privacy laws and hate crime laws which enable state prosecution based on both the invasion of the student's privacy and the fact that the conduct may have been motivated by animus against homosexuals.  According to the MSNBC coverage, the hate crime laws come into play at the time of sentencing, rather than as a separate cause of action, to raise the penalty for the criminal conduct under the privacy laws.  This would seem to make the laws easier to enforce than in some other states (and at the federal level) where many hate crime laws require proof of an intent by the perpetrator to cause harm to the victim.  I'm also under the impression than many existing harassment and bullying laws also require a credible threat of immediate harm to the victim.  Thus, New Jersey's approach seems to be particularly stong in comparison.  Does anyone know anything about the history of the New Jersey criminal laws on privacy and hate crime and why they seem to be different to the laws in many other states, assuming I'm correct about that?

An Incredible Two Months for Gay Rights Litigation

Although not necessarily the issues that most impact the day-to-day lives of LGBT people in this country, marriage and military service have been at the forefront of the gay rights movement in recent years.  Efforts to reverse discriminatory policies in these areas at the state and federal levels have included legislative, executive, and referendum-based politics.  So far, those efforts have provided, at best, mixed results.

But this year has been a banner year in litigation efforts to advance gay rights in these areas.  Over the course of the past two months, federal district courts in Massachusetts and California have struck down, in chronological order, the federal Defense of Marriage Act, California's Prop 8, and the federal "Don't Ask, Don't Tell" policy.

Before conservatives cry "activist judiciary" in response to these rulings, it would be best to understand just who the judges are who struck down these laws.  As you can see, this is not a list of your usual suspects of activist judges:

Judge Joseph Tauro (D. Mass.):  Judge Tauro wrote the two opinions striking down DOMA.  Before becoming a judge, Judge Tauro was an army lieutenant from 1956 to 1958 and then an assistant U.S. Attorney from 1959 to 1960 and U.S. Attorney in 1972.  He was appointed to the District of Massachusetts by President Richard Nixon and was the chief judge of the district from 1992 to 1999.

Chief Judge Vaughn Walker (N.D. Cal.):  Chief Judge Walker wrote the opinion striking down Prop 8.  Judge Walker was appointed to the bench by President George H.W. Bush on the recommendation of then-U.S. Senator Pete Wilson, a California Republican.  After law school, Judge Walker clerked for Judge Robert Kelleher, a Nixon appointee, on the Central District of California.

Judge Virginia Phillips (C.D. Cal.):  Judge Phillips wrote the opinion striking down "Don't Ask, Don't Tell."  Judge Phillips is a native of Orange County, California, who became a federal magistrate judge in 1995 (meaning she most likely got her first federal judgeship on merits rather than political connections).  She was recommended for an Article III judgeship by Senators Barbara Boxer and Diane Feinstein in 1999.  She was appointed by President Bill Clinton that year and confirmed later in the year by the Senate, which was controlled 55-45 by the Republicans.

It's impossible to claim that, from their backgrounds, these judges are nothing but a bunch of liberal activists on the judiciary.  Rather, it might just be that the banner year this has become for gay rights litigation results from claims that have undeniable merit under a Constitution that protects equality and liberty.

Cross-posted at Feminist Law Professors.

Will the Prop 8 Case Be Moot Before It Gets to the Supreme Court?

Following last week's decision finding that California's Prop 8 was unconstitutional, much of the talk centered around what the Supreme Court would do when presented with the question whether a ban on same-sex marriage was constitutional.  The thinking is that the Ninth Circuit will hear the case and, especially if the Ninth Circuit affirms the district court's finding of unconstitutionality, the Supreme Court would enter the fray.

However, I'm going to go out on a limb here and predict that, even though the Supreme Court will probably enter this debate at some point in the future, this particular case will probably be moot by the time the Supreme Court would decide.

Prop 8 opponents have organized a campaign to get marriage back on the ballot in California.  After much debate in the LGBT community, the decision was made to push for a marriage ballot resolution in 2012 (rather than 2010).  So, in two years, Californians will once again vote on whether same-sex couples can marry.

Why the confidence that a marriage resolution in 2012 will result in same-sex marriage when the marriage resolution in 2008 rejected it?  Yesterday's news from CNN illustrates it.  For the first time in a serious national poll, gay marriage polled majority support.  The position in favor of equality has momentum at its back.

Not only is there momentum, but there's also demographics.  Gay marriage has much more support by younger voters than older voters.  Four years is enough to make a huge difference in this regard, as older voters die off and younger people become voters (or, if voting age already, become more consistent voters).

Thus, in November 2012, I think it's a pretty good bet that the voters of California will vote for same-sex marriage.  They voted down same-sex marriage in 2008 by only 4 points.  In 2012, they'll probably vote in favor of same-sex marriage by a small, but definite margin.  Prop 8 will be history.  Assuming a normal appeals process, involving a panel of the Ninth Circuit, an en banc review by the Ninth Circuit, then a certiorari petition to the Supreme Court, followed by briefing and argument, I just can't imagine the Supreme Court deciding before November 2012.

And by that time, the case will be moot, as justice will already have been attained through the ballot box.

Cross-posted at the Feminist Law Professors.

Section 3 of DOMA Struck Down. Will DOJ Appeal? Stay Tuned!

Judge Touro of the District of Massachusetts has now ruled that Section 3 of the Defense of Marriage Act is unconstitutional.   This provision mandates that the federal government may not recognize gay marriage for any purpose.   Touro's ruling seems to  mean that a load of federal benefits - including immigration (sponsoring a spouse), social security, federal tax, family medical leave, tax deduction, and housing - must be granted to gay couples married and living in Massachusetts.  And that's only a start.  (See, e.g., don't ask, don't tell.)  

So will Obama's Department of Justice appeal?  Perhaps not.  Obama could argue that it would be too dangerous...what if the First Circuit affirms?  And if the administration does not appeal, that will mean that gay marriages for Massachusetts residents will carry a huge bundle of federal rights.  Stay tuned.  This is a big legal and political decision that will carry huge consequences for both upcoming elections and Obama's credibility on the left.

IRS Moving Toward Equal Treatment Of Gay Couples?

Paul Caron has the info and links here.   But don't get your hopes up too high; this is a  narrow victory.   The IRS takes the position that, in California, when a couple is registered as domestic partners, the couple must combine its income and each partner must list half of it on his or her separate return.  Still, this is yet more evidence that control of the Presidency can make a real difference in our administrative state.

For Love Or Money Conference Post-Script (Part II)

In my last post, I began a breakdown of the recent For Love or Money conference at Wash U, which I continue below.

In Testing as Commodification, Kate Silbaugh (Boston University, Law) argues that debates within the standardized testing literature represent a split similar to the one witnessed in traditional debates on the commodifying effects of market exchange:  those who extol the virtues of a common metric by which to make comparisons and evaluations, on the one hand, versus those who argue that test scores have swallowed other notions of the public good in education.  Because Kate is special, she had two discussants: Kieran Healy (Duke University, Sociology) and me. 

Healy argued that the U.S. education system has been dysfunctional for some time, and questioned whether standardized testing has really been the problem for public education that Silbaugh contends.  He focused instead on other social and organizational issues that contribute to problems in the standardized testing movement and, indeed, in U.S. public education more generally.  I invoked the “dark side” of commodification arguments, contending that they may be: (1) a catch-all, in that not all of the objections to markets (or standardized testing) that are packaged under the commodification rubric are necessarily about commodification, nor the inevitable result of market exchange or standardization; (2) political, in that they are sometimes raised by constituencies in pursuit of a self-interest that is at odds with broader social goals, and (3) elitist, in that the freedom to ponder the value of social goods other than individual economic betterment is a luxury not available to all.  We both questioned whether most of the objections to standardized testing are really of the commodification variety.

The next morning, Larry Ribstein (University of Illinois, Law) and commenter Bob Ellickson (Yale University, Law) discussed Ribstein’s paper, Incorporating the Hendricksons, which argues that differences between domestic and business associations suggest that using the same types of standard forms for both types of relationships can cause the forms to lose much of their coherence and therefore value, which would hurt both marriage and business law.   Ribstein’s paper was prompted by specific proposals to apply the law of business associations to the family, especially non-traditional families, including a recent paper by conference participant Adrienne Davis (see below).  I thought that Ribstein and Ellickson (who, as most readers know, has written extensively on private ordering, both within the family and in other close-knit communities) agreed on more things than they disagreed on.  Importantly, both felt that the laws governing business associations were a poor fit for family relationships, disputes, and dissolutions.

Finally, Susan Appleton (Washington University, Law) and Susan Stiritz (Washington University, Women, Gender, & Sexuality Studies) presented “Money Can’t Buy Me Love”:  Sex Therapy in the Age of Viagra, which examines the history of sex therapy and its contemporary practice in the age of Viagra.  I could tell you more, but none of it would be as effective as this video, shown by the two Susans (as I had begun to refer to them by the end of the weekend) as part of their presentation:

Discussant Adrienne Davis (Washington University, Law) took issue with the particular views of sex, equality, intimate relationships, and sex therapy envisioned by the paper, arguing that it reflected a particular normative view of acceptable sex and sexual relationships that was not universally shared. 

That’s all, folks!  Since no one would want to have to follow the highly animated Viagra discussion, we closed the show there.  All of this, of course, doesn’t even address the most meaningful aspect of the conference – the discussions among the participants.  The event was specifically designed to engender active discussion and, especially, cross-disciplinary discussion.  And thanks to our wonderful group of participants, who diligently read in advance and came prepared with interesting questions and comments, I think we accomplished that.  Thanks to all for their efforts, and especially to Marion and the other Wash U folks, who really made the whole thing come together.

Above Image: The Love of Money, By: Rein Nomm 

Where all the music is country, and all the heroes are White

The Texas Board of Ed met last week to discuss preliminary revisions to the state's social studies curriculum.  By way of background, Texas enrolls  nearly 5 million public school children;  2.3 million are Hispanic, 1.6 million are White, and 672K are Black.  The sixteen member board voting on the curriculum is overwhelmingly White.

Here's what they defeated:

• a proposal that students understand that the government is prohibited "from protecting or disfavoring any particular religion over all others."  Why?  Because such proposals reflect "hostility toward faith, specifically Christianity."  No kidding.

• a requirement that high school students understand the difference between "sex and gender" and the social construction of gender identity.  Because then kids would want to talk about "transgender, transvestites and who  knows what else."  And then the sky would fall.

• various amendments put forth to acknowledge the race, sex or religion of different groups who have contributed to American history, and to diversity the list of non-White historical figures that school kids are expected to know by name.  Because race doesn't matter, and the kids already know plenty of heroes by name.  So what if they're mostly White?

And here's what passed:

• an amendment removing the requirement that sociology students "explain how institutional racism is evident in American society."  Because apparently it's not.

• a measure to delete hip-hop from the list of "significant cultural movements," despite approval to add "country and western" music to the list.

• references in a section on US history to the "laws of nature and nature's God."

-Kathleen Bergin

Mr. Phelps Goes To Washington

The SCT granted cert yesterday in Snyder v. Phelps, to determine whether a $5 million verdict should be reinstated against members of the Westboro Baptist Church.  Phelps is the Kansas preacher who targets the funerals of dead soldiers to protest what he believes is America's endorsement of homosexuality.  Snyder is the father of one of those soldiers, Lance Cpl. Matthew Snyder, who was killed in Iraq and buried on March, 10, 2006. 

Phelps showed up at Matthew's funeral carrying signs like: "Semper fi fags," "God hates fags," and "Thank God for dead soldier."  Snyder didn't see the signs that day, but he did see the news footage later on.  A few days after that, Snyder googled Matthew's name and came up with a link to Phelp's church, godhatesfags.com.  Turns out that Phelps had produced a video "epic" about Matthew and the parents who "raised him for the devil," that Phelps used to draw like-minded folks to the church.

As a direct result of Phelp's activities over the years, more than 40 states have enacted measures to limit the scope of funeral protests.  This case does not challenge those laws directly, but instead involves a potential conflict between the First Amendment and the application of state tort laws. The SCT will have to determine what a private individual must prove in order to succeed on an emotional distress claim when the injury arises from offensive speech.  In Hustler v. Falwell, the Court held that that a public figure cannot recover damages for emotional distress unless the defendant communicated a false statement of fact with "actual malice."  This case will answer whether that same standard applies when speech is directed at a private individual.

Also in question is whether Phelps's free speech rights trump the rights to freedom of religion and peaceful assembly that come into play when grieving parents bury their son. 

 Link to questions presented.

-Kathleen Bergin

Baby Markets Is Here!

Baby Markets: Money and the New Politics of Creating Families, edited by Michele Bratcher Goodwin (University of Minnesota), is available from Cambridge University Press.  Contributors include: Michele Goodwin, Martha Ertman, Kimberly Krawiec, Mary Anne Case, Sara Dorow, Ruth Arlene-Howe, Elizabeth Bartholet, Jose Gabilondo, Mary Eschelbach Hansen, Daniel Pollack, Naomi Cahn, Maggie Gallagher, Debora Spar, John Robertson, June Carbone, Nanette Elster, Lisa Ikemota, Michelle Oberman, Viviana Zelizer, Sonia Suter

And my chapter, Price And Pretense In The Baby Market, is available on SSRN.  Abstract:     

Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against baby selling - typically defined as a prohibition against the relinquishment of parental rights in exchange for compensation.

This Essay explores the costs of societal pretense that legal baby markets do not exist. Those costs include scarcity, foregone opportunities to address market failures, an inability to develop regulations designed to further particular public policies unlikely to be advanced solely through the goal of profit-maximization, and the promotion of rent-seeking. This Essay focuses specifically on the rent-seeking problem, arguing that, although frequently defended by those who contend that commercial markets in parental rights commodify human beings, compromise individual dignity, or jeopardize fundamental values, bans against baby selling (at least as currently written and enforced) serve little purpose other than enabling anti-competitive behavior by the most economically and politically powerful baby market participants.

Baby Markets in Charlottesville

I drove up to UVA yesterday for a great panel on Baby Markets, sponsored by the Feminist Legal Forum, Lambda Law Alliance, and the Health Care Association.  The panelists were yours truly, the fabulous Sarah Lawsky, and the also fabulous Julia Mahoney. 

Wow!  Charlottesville has had a lot of snow lately (compared to the sprinkle we’ve received in North Carolina, at least).  The panel was a lot of fun, though.  Always great to see Julia and Sarah and to discuss these issues with such knowledgeable colleagues.  And the student moderator, Kate Lydon, did a great job putting everything together, organizing a set of questions, and keeping the three of us on track.   Finally, the audience -- very engaged, with lots of smart questions -- seemed genuinely interested in learning more about these issues.

There is a slight problem getting home, though.  I just got my car out of the shop on Monday, after having it serviced, tires changed, and all sorts of other costly repairs.  On the way up here, all the service lights went on, the car started shaking, and the smell of some unidentifiable (but clearly burning) fluid became apparent.  I don’t know what all of that means, but I’m sure it can’t be good.  A few minutes ago, the tow truck came to take it away.  

Pictured above, the Boar's Head Inn.  Not a bad place to be stuck, as you can see, but also not a place where I'm likely to meet my next article deadline, since I don't have my books or notes with me.  

Update: Below is the flyer for the event.

More on Oscar...

So this one's for Tim who thoroughly beat me to the Oscar countdown.  I was in a plane when the nominees were announced.

Here is a question I should know the answer to, but I bet Tim already does: 

Has a woman or a minority director ever won the Best Director Oscar?  And, I suppose, in related fashion, has a movie directed by a woman or a minority ever won Best Picture?

Matt Lauer and Celebrity "Outing"

So while enjoying the guilty pleasure of watching the Today show at a hotel room yesterday morning, I - along with the rest of the world - heard the public declaration from favorite Family Ties mom, Meredith Baxter, that she is now officially coming out as a lesbian.  Extract from story here.

What intrigued me about this was not that she is gay, nor that she chose to come out publicly (apparently prompted by threats of exposure from the tabloid press).  I was interested in her choice of venue and interviewer for this news.  Why Matt Lauer?  Wouldn't Ellen or Oprah have been more to the point?  Or even "The View"?  Or am I gender stereotyping by thinking that?

I'm not trying to say that she should talk to female rather than male reporters about being gay, but Matt Lauer as a person just doesn't strike me as the obvious choice for this kind of story.  I'm not sure I can put my finger on exactly why though.  Baxter was obviously happy with her choice of interviewers as she closed the session by saying to him:  "Thank you for being the guy." 

I guess I should end my obsession with pop culture and start thinking about more "legal" issues.  But the pop culture has been interesting me lately because I've been thinking so much about personality rights law.  In the context of this kind of interview, one does see an undercurrent of a sense that some celebrities want a right to control their public persona not for commercial gain (as much right of publicity theory suggests), but out of a sense of control of aspects of their personhood and personal dignity.  I have long suspected that the right of publicity, if it should exist at all, should be more than just a commercial property right.

Spit, “faggot,” and a tenure denial

  Yale law professor Bill Eskridge testifies before Congress on the pending Employment and Non-Discrimination Act of 2009, which would "bar sexual orientation and gender identity discrimination in the workplace by states as well as by private employers," and alleges that the University of Virginia Law School denied him tenure in 1985 because of his sexual orientation.  From the testimony (opens a .doc file), the relevant portion begins on page 83):

Late in the morning, as I was finishing up my class preparation, the chair of the committee stormed into my office and screamed at me for 10 minutes or so.  With clenched fists and a beet-red face, the chair of the committee threw a tantrum that included a string of accusations, such as “stabbing me in the back” and behaving in the treacherous manner that he and his colleagues ought to have expected of a “faggot.” . . . [I] was reduced to tears as the chair of the committee spat on me and called me dirty names.

Story from UVA Law Blog and Hunter of Justice, via Brian Leiter.

Update:  See this statement via Leiter from current UVA Law Dean Paul Mahoney, denying the allegations.

Update II: The UVA Law Blog has reprinted a January 31, 1986, article from the Virginia Law Weekly that discusses the incident in some detail, particularly student reactions.  

Update III:  Above the Law is now on the case, with an extensive story and links.  In it, Eskridge provides a lengthy response to UVA’a statement denying the allegations in Eskridge’s congressional testimony.

Vermont Debuts 'Hubby Hubby' . . . And Marriage Equality

Beginning today, same sex couples can marry in Vermont and to celebrate, during the month of September, Ben & Jerry's will be selling pints of their enormously popular "Chubby Hubby" under its new name "Hubby Hubby."

From the website:

In partnership with Freedom to Marry we are gathered here to celebrate Vermont and all the other great states where loving couples of all kinds are free to marry legally. We have ceremoniously dubbed our iconic flavor, Chubby Hubby to Hubby Hubby in support, and to raise awareness of the importance of marriage equality.

And from the press release:

Ben & Jerry’s has a long history of commitment to social justice, including gay rights. Its partnership with Freedom to Marry, a national leader in the movement for marriage equality, aims to raise awareness of the importance of marriage equality and to encourage other states to follow the blazing trails of Vermont, Massachusetts, Connecticut, Iowa, and Maine. Freedom to Marry promotes the national conversation about why marriage equality matters and brings together partner organizations into a larger whole – a shared civil rights campaign.

Kathleen Bergin

 

 

 

Global Free Speech Update

 

Argentina:  President Christina Frenandez is pushing a media reform bill that would give state broadcasters and non-profits organizations a better opportunity to compete with private companies for broadcast space.  The bill would also limit the total number of licenses a company can hold, and would preserve space for programming produced in Argentina.  Fernandez claims an interest in promoting broadcast diversity, but critics suspect it is her attempt to squeeze out private broadcasters who have grown increasingly critical of the government. 

Iraq:  Amnesty International has given its Freedom of Expression award to Palace at the End, a play about the Iraq war written by Canadian playwrite Judith Thompson.  A series of monologues offer three different perspectives of the War, including one based on the experiences of American soldier Lynndie England, and another by UN weapons inspector David Kelly.  The NYT Review is here.

Somalia:  As if things could get any worse for those living in Somalia, the government just initiated a state of martial law that could make it even more dangerous for journalists.  Under martial law imposed in 2007, journalists were prohibited from "spreading propaganda," interviewing government opponents, reporting on matters of national security, and holding 'unlawful' demonstrations.  Dozens of journalists were tortured and media houses closed down.  The National Union of Somali Journalists issued a press release last week, asking the government to respect a right to the free flow of information during the three month period of martial law.

Sudan:  Beyond the outrage of sentencing women who wear pants (gasp!) to 40 lashes, several journalists who covered last month's court case of Lubna al-Hussein and her co-defendants were arrested, and columnist Amal Habbani was fined for writing about the case in "Lubna: A Case of Subduing Woman's Body."  An added note on Lubna: she could have invoked immunity as a UN worker and avoided prosecution, but decided insisted instead on continuing the case to call attention to the government's deplorable human rights practices.   

Peru:  Lawmakers are considering a measure that would require a "correction" of any "inaccurate or insulting statement" published in print, broadcast or electronic form.  I'm not sure how one would correct a statement that is insulting but happens also to be true, but it would have to be done within 3 days, as opposed to 10, which appears to be the case under the present system.

-Kathleen Bergin