The Faculty Lounge

New Hybrid Chapbook on Homelessness & Mental Health

I'm excited to announce that my hybrid chapbook, A Registry of Survival, is out from Last Word Press.  It explores my relationship with my mother during a time when she was homeless.  It also describes the strain on our relationship caused by her mental health struggles.  There is a legal angle too, as the work discusses teaching Property and the course's connection to what my mother was going through when she became homeless. Author Rebecca Brown commented that "It’s like the words of A Registry of Survival were extracted from the heart, like clean sharp needles pulling out, but true and hard and needing to be said."

Somerville, MA passes a polyamory-inclusive domestic partnership law

In a move that is believed to be the first of its kind in the United States, Somerville, Massachusetts has passed a domestic partnership ordinance that is inclusive of polyamorous families.  The news article is available here.  As various scholars, including Hadar Aviram, Gwendolyn Leachman, and me in the United States and Stefan Ossman in Austria, have discussed, polyamorous groups tend to have a complex and sometimes ambivalent relationship to rights advocacy.  This makes the development in Somerville particularly momentous.

Manliness

I want to thank Dean Dan Filler for inviting me to blog.

One of my chief scholarly interests is manliness and its relation to law and politics. While the topic may seem exotic to some, I think it is in fact quite the opposite: it is manifest in some of our most pressing public issues. We have a President, for example, who has explicitly invoked the tropes of manliness to justify his authority (and belittle others). So too the policy debates about the Second Amendment are often prompted by mass shootings committed by disturbed males who feel that a resort to gun violence is necessary to redeem their emasculated status.

But manliness is a barbed idea. It can serve diverse constituents. Manliness as a normative theory has arguably been used to underwrite the First Amendment right of speech, the need for civility as a political virtue, and the Civil Rights Movement of the 1960s.

In the next couple of weeks I plan to blog about manliness in the context of law and politics, beginning with my recent book about Justice Oliver Wendell Holmes.

 

Does Denying Gay Man a Medical Expense Deduction for Costs of IVF Violate Equal Protection? 11th Cir. Says No

The Eleventh Circuit  ruled earlier this week in Morrissey v. U.S. that the amounts a gay man paid to father biological children by paying for an egg provider, IVF, and a gestational surrogate are not deductible as medical expenses under IRC Section 213.  This follows a similar result in reached by the First Circuit in Magdalin v. Commissioner, 96 T.C.M. (CCH) 491, 2008 WL 5535409 (2008), aff’d, 2009 WL 5557509 (1st Cir. 2009). In short, the reasoning in both Morrissey and Magdalin is that the medical expenses in question did not "affect" the "functioning" of the male taxpayer's body, as allegedly required by IRC Section 213.  The reasoning in the Magdalin case has been sharply criticized in careful work by Anthony Infanti (Pitt) (here, e.g.) and Katherine Pratt (Loyola Law School LA) (here, e.g.).  The Magdalin decision is also the subject of a (very convincing,  in my view) rewrite by Jennifer Bird-Pollan (Kentucky) with commentary by Katherine Pratt in Feminist Judgments: Rewritten Tax Opinions (forthcoming 2017, Cambridge University Press; table of contents and intro chapter available here).

The Morrissey Court takes the matter further in addressing the taxpayer's equal protection argument, acknowledging that  Supreme Court recognizes a constitutional right to reproduction in some situations, but that this case presents the question of "whether a man has a fundamental right to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate," to which the Eleventh Circuit says the answer is decidedly "no." The Eleventh Circuit dismissed without substantial analysis Mr. Morrissey's claim that he was discriminated against on the basis of his sexual orientation. The court reasoned that Mr. Morrissey could not show that other similarly-situated individuals received favorable treatment under the statute; and that the government did not discriminate against him based on a "constitutionally protected basis" (meaning his sexuality).  I suspect (no pun intended) that it is this part of the Morrissey decision that will attract considerable attention from scholars who will seek to show how the facially-neutral statute discriminates against those who choose not to reproduce through traditional coitus or in the context of a male-female relationship.

Tax cases are exciting stuff!

 

 

Lambda Finalist Reading in Los Angeles

Earlier this week, I had the honor of participating in a Lambda Literary Award finalist reading in Los Angeles.  The Lambdas (or more colloquially, “The Lammys”) are considered the preeminent book awards for LGBT writers, and it was exciting to be there, among eight other finalists.  Most were from the L.A. area but there was one fellow writer from the Pacific Northwest—Stephanie Adams-Santos of Portland.  Two of the authors—CB Lee and Jeff Garvin—are finalists for the LGBTQ Children’s/Young Adult category.  Lee read from her nominated young adult fantasy novel, Not Your Sidekick, which is about a high school girl who is frustrated as a result of not having inherited her parents’ super powers. Garvin read from his young adult novel, Symptoms of Being Human, which describes the angst of a young trans protagonist who struggles with the demands of conformity imposed by his or her (readers are left deliberately in the dark as to the protagonist’s gender) politician father.

Poets also made a strong showing at the reading.  Jos Charles, a finalist in trans poetry, read beautiful work about their relationship to their parents, and Stephanie Adams-Santos, a finalist in lesbian poetry, read very interesting and moving work about mental illness. I read from my poetry book, The Body’s Alphabet, which is a finalist in bisexual nonfiction, and Kate Partridge and Alyse Knorr read gorgeous poems about moose, bears, and the Alaska landscape from the anthology, Building Fires in the Snow: A Collection of Alaska LGBTQ Short Fiction and Poetry, a finalist in the LGBTQ Anthology category.

Finally, Elizabeth Hall, also a finalist in bisexual nonfiction, read from her book, I Have Devoted My Life to the Clitoris, which is a fascinating combination of history and memoir, and J. Aaron Sanders, author of an historical mystery about Walt Whitman, read a poignant essay comparing Walt Whitman’s grief about losing men to war to his own grief at being geographically separated from his children after divorce.

Beyond listening to everyone’s incredible work and feeling like I was part of something much bigger then myself, I was also excited to see that there were at least three bi-identified authors reading.  Although bisexuals comprise the largest segment of the LGBT community by most counts, we are often invisible in LGBT spaces. This time, however, we were out in force.  CB Lee had even died her hair in bi colors--purple and blue!  It was also great to read in an official space--the West Hollywood City Council Chambers.  That felt very legitimizing after all my years as an outsider writer.

I’m looking forward to attending the Lambda Literary Awards ceremony as well as the Bisexual Book Awards ceremony in New York City next month. I'm grateful to Lambda Literary Awards, the Bisexual Book Awards, my publisher Headmistress Press, and to everyone else that made this possible.

The Value Of The Pence Protest

I know there is an active debate among progressives about whether the Hamilton audience and cast response to Mike Pence was appropriate or strategically counterproductive.  My own take is that it is important to recognize Hamilton as a piece of explicitly political art, not an anodyne feel-good musical about a founding father.  In both its content and its casting, it sends a political message that is in direct opposition to the views of the new administration.  I have long felt uncomfortable about the appropriation of Martin Luther King - his words and his symbolism - by conservative politicians whose views are directly opposed to King's views at the time, and values he always stood for.  This is a real danger - and in the present context is an actual form of the "normalization" people rightly fear.  The response to Pence's visit to Hamilton was an utterly appropriate way to flag the deep inconsistency of Pence simultaneously embracing Hamilton and believing that immigrants are dangerous, that African-Americans are dangerous and that gay people have an illness that should be treated by conversion.  And that's just a start.  

You don't get to like Hamilton, and suggest that you're on the same page as this piece of hot Americana, and at the same time burn down the lives of the millions of people who animate the values of Hamilton.  Hamilton has a message and it isn't "Make America Great Again." 

My New Poetry Book Was Featured in its First Review

I’m excited to announce that my new poetry book—The Body’s Alphabet--published by Headmistress Press this summer, was featured in its first review.  Poet and editor Rebecca Valley wrote an insightful review for the blog Drizzle Review.  She describes the book as being about betweenness and as embodying a complicated sense of time—of moving forward while looking back. 

Including poems written over most of the past two decades, the book explores the body’s physical and spiritual journeys, often focusing on human vulnerability and the need for belonging.  It uses childhood loneliness, bisexuality, and discontinuity with nature as lenses.  Poet D.A. Powell describes The Body’s Alphabet as being “built on a precarious and often tender journey through homes no longer available to return to” and calls the book “a blessed space . . . : a home for the wayward soul.”  

Some of the poems touch on law and my career as a practicing attorney (none of the poems about teaching made it in).  For example, “swimming through history” compares two river systems—the Truckee and the Skagit—and describes the awe and sense of unworthiness that one can sometimes have as an attorney trying—on behalf of a client--to protect the natural functions of a river system.  More subtly, “nature essay” examines the absurdity and hubris of human claims to private property vis-à-vis animals. 

The book is available from Headmistress Press, Amazon, Powell's, and my website, as well as in a some bookstores and libraries. 

Judges and the Duty to Listen

One of the things progressive legal academics love to angst about is the relationship between minority rights and the courts. Sometimes, it seems like our analysis reflects little more than the changing political alignment of the judiciary. The Warren Court appears to make great strides in protecting marginalized communities from democratic predations, and so we produce deep tracts explaining why courts are important countermajoritarian bulwarks. Then we experience a significant conservative retrenchment during the Burger/Rehnquist/Roberts years, and the tenor of the scholarship changes -- it turns out that courts are poor vehicles for progressive social change. And now, with Democrats potentially gaining control over the judicial branch for the first time in a generation, the pendulum swings again: progressives are urged to abandon our "defensive crouch" and reassert a muscular left constitutionalism.

None of this seems to do much in the ways of explaining why courts are supposed to be systematically more sympathetic to outgroups compared to the political branches. One could argue that we got idiosyncratically lucky with the Warren Court, and have been misled ever since. The Warren Court, after all, did what it did in part because it turned out that the overseer of Japanese internment and a former Alabama klansman were willing to promote historically progressive racial policies. This does not seem like the sort of historical fortune likely to be replicated. There is something odd, it must be said, about starting with the problem of political marginalization and ending with the idea that we should delegate those issues to a institution that is whiter, maler, richer, and older than the American population writ large.

Revising Internal Revenue Code Terms Relating to Marriage

In the post-Windsor, post-Obergefell world, the Internal Revenue Code needs to be revised to take same-sex marriage into account.  The ABA Section of Taxation has submitted to the IRS comments on proposed regulations defining terms related to marital status in the Internal Revenue Code. The principal drafter of the comments was Anthony Infanti (Pitt), chair of the Teaching Taxation Committee of the ABA Section of Taxation. Substantive contributions came from Pat Cain (Santa Clara), David Herzig (Valparaiso), Ted Seto (Loyola Law School, Los Angeles), and others (with some minor comments from me). Tony Infanti's leadership was absolutely key.

One important aspect of the comments is the recommendation that the IRS recognize domestic partnerships, civil unions and similar relationships for federal tax purposes.  The Comments explain that "recognizing these alternative relationship statuses for federal tax purposes would better fulfill the Service’s professed purposes in issuing the Proposed Regulations, would result in fairer treatment of similarly situated taxpayers, would render tax considerations neutral in choosing between the different relationship statuses, and would better accord with the reality that several states already treat these relationships as marriages for purposes of their laws."

You can read the Comments here.

AALS Indian Nations & Indigenous Peoples Section Call for Papers

The Indian Nations and Indigenous Peoples Section of the American Association of Law Schools (AALS) invites paper proposals on the following topic. How do Indian Tribes, First Nations, and other Indigenous Peoples regulate same-sex marriage, same-sex relationships, and adoption and foster parenting by same-sex couples and LGBT individuals? What role does evidence of Tribal culture and tradition, if any, play in these decisions? Additionally, what are the processes by which Tribes change their laws with respect to same-sex relationships? More broadly, we are interested in the ways in which Tribes, First Nations and other Indigenous Peoples regulate sexuality and family structure.

Please send proposals of 500 to 1000 words summarizing a paper or work-in-progress you would present on an AALS panel on these issues. The selected panelists will be invited to present their work in a joint program of the Indian Nations and Indigenous Peoples and the Law and Anthropology Section, which will be co-sponsored by the Family Law Section. The Program will be held at the AALS Annual Meeting, January 6-10, 2016. Selected papers will be published in the William Mitchell Law Review. Please submit your proposal on or before September 1, 2015 to Michalyn Steele, Chair-Elect, at [email protected] Questions can also be directed to Ann Tweedy, Chair, at [email protected]

A Bisexual Plaintiff’s Employment Discrimination Victory in Flood v. Bank of America

In a little noticed decision issued a couple of months ago, the First Circuit reinstated a bisexual plaintiff’s employment discrimination claims under the Maine Human Rights Act, reversing the district court’s dismissal on summary judgment.  The decision is remarkable because, as I and Dr. Karen Yescavage discuss in our recent law review article, despite the fact that bisexuals experience significant levels of discrimination, they rarely sue.  Even more concerning is the fact that, when they do sue, they almost never succeed.  Indeed, the only employment discrimination case Dr. Yescavage and I found in which a bisexual plaintiff had ultimately succeeded on the merits was decided by a British court.  To be sure, the First Circuit decision in Flood v. Bank of America Corp., 780 F.3d 1 (1st Cir. 2015), is not a final victory for Shelly Flood.  Instead, it only means that she may present her evidence to a jury, but, given the dearth of case law involving bisexual plaintiffs, it is highly significant.    

The evidence supporting Shelly Flood’s termination and harassment claims (both rooted in allegations of sexual orientation discrimination) appears fairly strong.  Ms. Flood presented evidence to the effect that one of her supervisors (who was also her assigned mentor) began to treat her drastically differently upon learning that Ms. Flood was having a romantic relationship with a woman and that this supervisor enlisted other bank administrators to engage in similar treatment.  The negative treatment Ms. Flood describes includes suddenly receiving poor performance evaluations, being subjected to retroactive changes in evaluations, and receiving “cold stares . . . and disparaging comments about [her] eating habits, dress, and hair style.”  780 F.3d at 13.  According to Ms. Flood, this negative treatment eventually reached such an egregious level that she could no longer bring herself to go into work. 

The First Circuit held that the district court had wrongly dismissed the discharge claim because it erroneously interpreted the claim as one of constructive discharge (rather than actual discharge) and that it had wrongly dismissed the harassment claim based on its mistaken conclusion that the harassment was not severe or pervasive.  In response to the Bank’s argument that Ms. Flood’s claim failed as a matter of law because she was “not exposed to explicitly homophobic statements or derogatory remarks,” the First Circuit noted that many employers now “know better than to spew explicitly . . . homophobic remarks . . .” and that “the absence of such blatant vitriol does not doom a claim of discrimination.”  Id. at 10-11.

All in all, the First Circuit’s analysis is well-reasoned and the result, especially with respect to the harassment claim, may seem unsurprising.  But, as a precedent for bisexual plaintiffs bringing sexual orientation employment discrimination claims under state laws (which tend to be similar in structure to federal law), this case is huge news.  To be sure, the case involved a fairly straightforward type of discrimination—homophobia.  As Dr. Yescavage and I discuss, bisexuals appear to be subject to two primary forms of discrimination:  homophobia and biphobia, the latter of which involves fear and discomfort specifically related to bisexuality.  Biphobia may be particularly hard for courts to understand, as the limited case law suggests.  See, e.g., Apilado v. North Am. Gay Ameteur Athletic Alliance, 2011 WL 5563206, at *1–3 (W.D. Wash. Nov. 10, 2011).  However, the significance of Flood should not be underestimated.  For now, it stands as the strongest precedent available for bisexual victims of employment discrimination in the United States.

Same-sex Marriage, Polygamy, and the Constitution

In a column online at the New York Times, Adam Liptak discusses the different ways in which the Supreme Court might rule in favor of same-sex marriage—a narrow decision requiring states to recognize same-sex marriages performed in other states, a broad decision recognizing a right to same-sex marriage on the grounds that same-sex marriage bans discriminate on the basis of sexual orientation and deny same-sex couples a fundamental right, or a middle of the road decision.

To what extent might the justices be influenced by their concerns about the implications of a right to same-sex marriage for a right to polygamous marriage? If traditional ideas about marriage are not sufficient to justify a ban on same-sex marriage, are they sufficient to justify a ban on polygamous marriage, especially since polygamy bans arose out of anti-Mormon animus?

Same Sex Couple in the Early Twentieth Century Cemetery?

In keeping with a couple of posts I've put up -- one about a business partner who put up a stone monument in Richmond's Shockoe Hill Cemetery and another in Alabama's Greensboro Cemetery -- I want to post some more on other cemetery monuments I've seen. 

A year back when I was up visiting Murfreesboro, North Carolina (mostly to see the place where an enslaved person was executed in the wake of the Nat Turner rebellion) I stopped by a cemetery nearby.  And I saw an inscription that I found well, rather unusual.  "Together in life, together forever in death."  Not so unusual, to be sure, until you see that this is about two women: Susan J. Myrick (1826-1917) and Margaret J. Leggitts (1831 -).   Susan died first and was buried there and there was room left on the tombstone for Margaret.  Turns out she was buried elsewhere.  And to make things even somewhat more mysterious, Susan Myrick had been married and she had several children .  So perhaps they were very good friends -- or perhaps the tombstone hints at some other kind of relationship.  This is a mystery that awaits further investigation.... (More details on the Myricks of Murfreesboro are here.  I"m guessing they're related to one of the judges in the Nat Turner trials.)

Maybe this is another site for talking about LGBT history?  Bridget Crawford has the story on the National Park Service's efforts to increase interpretation of LGBT sites.

AALS Section on Sexual Orientation and Gender Identity Issues: CFP

The 2015 AALS Panel of the Section on Sexual Orientation and Gender Identity Issues (SOGII) is “Transgender Equality: Prisons, Workplace, and Academic Institutions.” One speaker on this panel will be selected by a subcommittee of the SOGII Executive Committee.  If you are interested in presenting on this panel, please submit a one page abstract describing the essence of your talk to Ellen S. Podgor, Chair of the Section on Sexual Orientation and Gender Identity Issues, [email protected].  The deadline for submission is June 1, 2014.  Received abstracts will be acknowledged within seven days.

Gender and Law Blog

Tracy Thomas (Akron) and I have a new blog, Gender and Law.  It's here.  We welcome responses, critiques, suggestions, as well as any desire for guest blogging. 

Queer Quota Or Liberty University Redux? Canadian Law School To Prohibit Gay Sex.

A debate is heating up on Canada's left coast.  Trinity Western University in British Columbia is seeking to open a law school which would require students to pledge to live up to (their conception of) Christian values by voluntarily abstaining from "sexual intimacy that violates the sacredness of marriage between a man and a woman."  Advocates are out arguing for and against accreditation of the institution.  For: National Post commentator Jonathan Kay, arguing that gay students should just go somewhere they'd feel more comfortable and adding that "Canada has not yet become a country that bends to every demand from secular extremists."  Against: lawyers Clayton Ruby and Gerald Chan, arguing that  the school is imposing a "queer quota" and stating that "Mr. Kay’s solution is to tell homosexual students to go to one of the other law schools. That is precisely what Jews were told in the 1940s and 1950s. Stick to your own kind."

Gay students would be able to attend TWU but not have sex with people of the same sex.  In the U.S., of course, religious schools  discriminate - not only based on actual sexual acts, but on articulated views about such conduct.  I wonder what Ruby and Chan would say about this language from Liberty University:

The School of Law does not discriminate on the basis of sexual orientation but does discriminate on the basis of sexual misconduct, including, but not limited to, non-marital sexual relations or the encouragement or advocacy of any form of sexual behavior that would undermine the Christian identity or faith mission of the University.

Query whether this rule is actually consistent with ABA Accreditation Standard 211(c) which provides:

(c) This Standard does not prevent a law school from having a religious affi liation or purpose and adopting and applying policies of admission of students and employment of faculty and staff that directly relate to this affi liation or purpose so long as (i) notice of these policies has been given to applicants, students, faculty, and staff before their affi liation with the law school, and (ii) the religious affi liation, purpose, or policies do not contravene any other Standard, including Standard 405(b) concerning academic freedom.

These policies may provide a preference for persons adhering to the religious affi liation or purpose of the law school, but shall not be applied to use admission policies or take other action to preclude admission of applicants or retention of students on the basis of race, color, religion, national origin, gender, sexual orientation, age or disability. This Standard permits religious affiliation or purpose policies as to admission, retention, and employment only to the extent that these policies are protected by the United States Constitution. It is administered as though the First Amendment of the United States Constitution governs its application.

And what about Interpretation 211-4?

The denial by a law school of admission to a qualifi ed applicant is treated as made upon the basis of race, color, religion, national origin, gender, sexual orientation, age or disability if the basis of denial relied upon is an admissions qualifi cation of the school which is intended to prevent the admission of applicants on the basis of race, color, religion, national origin, gender, sexual orientation, age or disability though not purporting to do so.

Was Nat Turner's Lawyer Gay?

How's that for a provocative question?  Actually, my question is whether Thomas Ruffin Gray, who published The Confessions of Nat Turner was gay.  Before I get to why I have this question, I want to talk a little bit about Thomas Gray.  In 1831 he was a lawyer in his early 30s, who had been educated at William and Mary and then trained for law ... but he had not practiced law, for he apparently had plenty of family money.  For some reason, perhaps because of gambling, he fell into debt.  When his father died in September 1831, he paid off one of Gray's debts and left the remainder of his property to Gray's daughter.  This common practice thus kept the elder Gray's money out of the hands of Thomas Gray's creditors.  Shrewd, wasn't it?  Gray began practicing law because of these financial problems -- and he represented several of the slaves accused of participating in the rebellion.  Gray interviewed Turner and published the interview.  What remains very unclear is how much of the Confessions are actually Turner's words.

 After the rebellion he was involved in a pamphlet war with one of the judges on the court that heard the trials of the rebels, Dr. Orris A. Browne.  For reasons that I'm not quite sure, there was real animosity between Browne and Gray -- part of the dispute may have related to a claim that Browne had against Gray's father's estate for medical care he provided the elder Gray.  At some point the dispute escalated to a challenge to a duel, though the details are lost because there have only been two of the pamphlets -- one by each of the participants.

Browne's surviving pamphlet calls Gray's character into question in a number of ways -- by referring to Gray's profligacy and his gambling, and by noting that Gray associated in extremely intimate ways with a well-known gambler, one Henry Pegram.  An aside here -- Pegram operated a faro table in Southampton.  About the faro table I knew nothing -- but I've since learned it was a popular form of gambling in the pre-war era.

There is an important question: who cares?  Why does this matter?  It's worthy asking how much this might affect how we think about Gray as a lawyer and author.  Sarah Roth, a historian of antebellum literature -- whose book on antislavery and proslavery fiction  has a lot to say to legal historians about the attitudes towards slavery in the judiciary and how they changed from the 1820s to the Civil War -- suggested that this might put in a different light Gray's statement in the Confessions that when he looked at Turner his blood curdled in his veins.   Whatever one thinks of that idea, it may expand our understanding of who Gray was and also open a window into life in rural Virginia.  It certainly reveals how quickly a pamphlet war might degenerate into casting aspersions on the private life of an opponent.  Gray's response, for instance, spoke about how he was a long-term resident of Southampton and how people knew his reputation for honesty, whereas Dr. Browne was recently arrived in Southampton.

Soon I'm going to be talking about Turner's appointed lawyer, James S. French, who may have been a real hero.  I want to draw out French's free thinking ideas and what they say about his role in the aftermath of the Turner rebellion.  Want to know more about French right now?  I've put a draft of my paper on the Nat Turner trials up on ssrn.

Marriage & Polyamory

Interesting survey results on polyamorists' interest in marriage were recently published on Loving More's website.  As background, conservatives who oppose marriage equality have been making slippery slope arguments for years about the purported danger of legally sanctioning same-sex marriage and a resulting inability to distinguish plural marriage.  See, e.g., Lawrence v. Texas, 539 U.S. 558, 590 (2003) (Scalia, J., dissenting).  In response, as I noted in my article Polyamory as a Sexual Orientation, some marriage equality proponents have tried to distance themselves from polyamory and have sometimes cast aspersions on it.  79 U. Cin. L. Rev. 1461, 1484 (2011).  However, polyamorists themselves face considerable discrimination and appear to be deserving of legal protections, although there is uncertainty about whether and what types of protections they want.  79 U. Cin. L. Rev. at 1513-14.  Hadar Aviram's research on the Bay Area poly community suggested that that community at least did not want to advocate for poly marriage, partly out of fear of taking away steam from the marriage equality movement.  Hadar Aviram, Make Love, Not Law: Perceptions of the Marriage Equality Struggle Among Polyamorous Activists, 7 J. Bisexuality 261, 264 (2008).  This new survey data, however, shows that a significant majority of Loving More's national respondents (65.9%) would take advantage of plural marriage if legally available, although, interestingly, an almost equal--but slightly larger--percentage (66.9%) think that no relationship structure "deserves special recognition."   Thus, there seems to be a preference for disestablishment of rules privileging certain relationships, perhaps along the line of Nancy Polikoff's work, coupled with a practical willingness to marry if the option were available. 

Windsor Same-Sex Marriage Aftermath: Everyone Just Sue the Bastards

In 2004, after Massachusetts became the first state in the country to allow same-sex marriage, the ACLU distributed a memo warning people against bringing new same-sex marriage litigation.  It was titled "Don't Just Sue the Bastards."

As you can see if you follow the link, the memo argues that mid-2004 was not the right time for everyone to go into court making claims of marriage equality. The memo raises three reasons: 1) the risk of losing cases; 2) the risk of setbacks longterm; and 3) the less-than-certain odds at the Supreme Court.  The memo is a great snapshot in time in the movement for marriage equality, and  I love teaching it for the interesting issues of social movement strategy and legal ethics that it raises.

But, that's a discussion for another time.  In the wake of last week's decision in Windsor, I'm thinking of this memo again but in a different way -- that the best move forward for marriage equality at this point would be the complete opposite strategy.  Thus, the title of this post - Everyone Just Sue the Bastards.

Let me make this clear - I am in no way currently connected to any of the groups strategizing or litigating this issue.  I am, however, a long-standing and huge proponent of marriage equality, and after Windsor, I think every gay or lesbian couple who wants to get married should file federal lawsuit in every state that doesn't allow gay marriage.  Let a thousand (or tens of thousand) lawsuits bloom!

The upsides are obvious.  I'll break them out here:

Windsor: Windsor has excellent language about equality and the importance of marriage.  The language is preceded by Justice Kennedy's usual homage to federalism, but the part of the opinion about equality and marriage does most of the work.  Any lawyer worth his or her salt will be able to use that language to make the previously-very-strong constitutional argument for same-sex marriage even stronger.

Easy work: And that work isn't going to be that hard.  Beyond adding Windsor into the mix, the legal arguments are already very well developed and briefed.  Every lawyer taking a same-sex marriage case need only look to the excellent briefing in the Supreme Court (by the parties and some of the amici) to make the strongest arguments possible for same-sex marriage.  No one has to reinvent the wheel here.  They just have to add the language from Windsor and the pleadings are taken care of.  Certainly there will be more state-specific work, but so much is already done.

Back to the Supremes in a better posture: Bringing thousands of cases in states that prohibit same-sex marriage AND have government officials who will defend the cases will avoid the Perry problem.  Perry, as we all know, was a missed opportunity to get the Supreme Court to announce equality for all.  Other cases without the procedural issues from that case are needed, so litigants need to sue for a license in the 37 states that still prohibit same-sex marriage to get a case working its way to the Supreme Court.  And given Windsor, it's very likely a proper case before the Court would win.

Lower court wins: Along the way, litigants may just win.  As we saw in Perry, district courts and circuit courts might decide that the Constitution protects a right to same-sex marriage.  More winning decisions in federal court will certainly help the cause.

Expensive for discriminating states:  More litigation will also force states that continue their discriminatory practices to spend money to defend them.  They want to continue to have a policy of inequality?  Make it expensive.  Make them defend hundreds of lawsuits in different district courts across the state.  Even if the cases are consolidated, they'll be expensive for the state to defend against all the parties throughout every stage of litigation.

Keeping the issue alive:  Same-sex marriage is a on a roll.  Windsor and the reinstatement of marriage in California come on the heels of the electoral victories in November 2012 (Washington, Maryland, Maine, Minnesota) and the legislative victories in early 2013 (Colorado, Delaware).  More cases bubbling up to the Supreme Court will keep the issue alive and in the news.  A massive wave of cases would do that even more so.

More stupid defenses of the law:  I have yet to see a well-reasoned defense of marriage inequality, but forcing states to defend these laws will undoubtedly bring out all different qualities of defense.  There will certainly be non-offensive statements that are within the realm of reasonable debate, but there will also just as certainly, as we saw with many of the amicus briefing in the Supreme Court, be the absurd, offensive, and downright ludicrous.  (Think, in a different realm, about "legitimate rape," women "shut[ting] that whole thing down," masturbating fetuses, and rape kits that allow women to "get cleaned out.")  These comments will help move the needle even further toward equality.

Are there downsides?  Sure.  Nothing's without downsides.  But, compared to 2004, we're in a different place.  In 2004, the ACLU was concerned about having losing cases on the books.  They were concerned what that would do longterm.  Well, we know the answer now.  The highest courts in Washington, Maryland, and New York all rejected marriage equality claims.  Yet, all three of those states have since changed to a system of marriage equality.  There are losing cases on the books from other states too, such as in Arizona state court and Nevada federal court, but that didn't stop the Supreme Court from coming out the right way in Windsor.  These cases also haven't stopped popular opinion from shifting dramatically in favor of equality on this issue.  In other words, we've had the losses, but the movement is continuing full-steam ahead.

What about the risk in the Supreme Court?  As I wrote above, after Windsor, it's hard to argue that the Court will issue a ruling against same-sex marriage.  Maybe they aren't ready to rule for same-sex marriage, as we saw in Perry, but a ruling against same-sex marriage seems out of the question.  And any case started now will take at least a couple of years to get to the Court, by which time Windsor will have sunk in and the world will not have imploded, popular opinion will continue to change in favor of equality, and maybe the Court personnel might change for the better too.  The last is certainly a wildcard, but the other two are not.

Finally, maybe it's time to turn attention away from marriage and to other goals of the movement for LGBT equality.  There has certainly been a lot of criticism of all the money and effort that has been expended toward the claimed assimilationist goal of marriage and not to, what some feel are more pressing, the concerns of employment discrimination, hate crimes, poverty, transgender rights, and more.  While I agree these are all important goals, I think you can fight multiple things at once.  And if it really is about fighting one issue at a time, it wouldn't make sense to stop climbing K-2 three-quarters to the top to then start climbing Everest.

Bottom line here is that the downsides from 2004 are much less now than they might have been then.  The remaining 37 states need to feel the pressure, and thousands of litigants can keep that pressure on.  The time is now.

Everyone just sue the bastards.

Where Are the Liberal Justices on Gay Rights?

In re-reading the marriage cases this afternoon, something struck me: where are the liberals?

There are six opinions in the two cases.  Justices Kennedy wrote the majority opinion in Windsor, with Chief Justice Roberts and Justices Scalia and Alito writing dissents.  Chief Justice Roberts wrote the majority opinion in Perry with Justice Kennedy writing the dissent.

The four liberals joined Justice Kennedy in Windsor but each was silent about their own thoughts.  Three of the liberals joined Chief Justice Roberts in Perry (Breyer, Ginsburg, and Kagan).  Justice Sotomayor joined Justice Kennedy's dissent.  Each was silent about their own thoughts on this case as well.

Why does this matter?  Presumably, at least one of these four has some view of the Constitution that endorses a more robust view of gay rights than Justice Kennedy.  Kennedy has certainly been a proponent of gay rights, but not in a way that has changed the level of scrutiny and put discrimination based on sexual orientation on par with discrimination based on sex or race, a central cause in current-day LGBT advocacy.  In fact, Kennedy hasn't ever been really clear about how exactly he is analyzing discrimination against gays and lesbians.  His opinions are full of lifting rhetoric, but are short on clear analysis that helps future litigants and judges.

Without any of the liberals writing separately, we don't have any official statement in the Supreme Court Reporter from any Justice arguing that sexual orientation discrimination in all of its forms is odious to the Constitution.  We don't have any Justice with a ringing endorsement of equality for LGBT people.  We don't have any Justice making the strong case for marriage equality.

By remaining silent, not only are the liberal Justices depriving us from learning their particular views, but they are depriving future litigants the opportunity to use their strong reasoning to further their cause.  After all, the logic in today's concurring opinions often becomes the logic in tomorrow's majority opinion.

What's even more troubling about this is that this appears to be a trend.  In its history, the Court has issued four decisions advancing the cause of gay rights -- Windsor today striking down DOMA, Perry today rejecting the appeal of the decision finding Prop 8 unconstitutional (I'll give the Court the benefit of the doubt here by calling Perry a case advancing gay rights), Lawrence 10 years ago rejecting Texas's sodomy statute, and Romer 17 years ago finding Colorado's Amendment 2 unconstitutional.

Combined in those cases there have been 12 separate opinions.  Not a single one was written by anyone to the left of Justice Sandra Day O'Connor.  (Kennedy has written 4 times, Scalia 3 times, O'Connor 2 times, and Thomas, Alito, and Roberts each 1 time.)

Of course, when it comes down to it, the liberals on the Court owe the public nothing other than their votes.  In that regard, this current batch of liberal Justices has reliably voted for gay rights since 1996, and that should be celebrated.

But, it really would be wonderful if one of them had stepped up with a resounding call for gay equality in any one of these cases.  Instead, all we get from them is silence.