The Faculty Lounge

Making Gay Marriage Pay: Pondering Economic Effects of U.S. v. Windsor

One of the interesting questions coming out of the Supreme Court's decision today in United States v. Windsor is whether states allowing gay marriage will reap an economic benefit for their local economies.  That is, how much additional Federal money will flow to those states as a result of having more married people?

This issue is similar to the question of how state decisions to adopt Obamacare Medicaid expansion will affect state economies.  A state that extends Medicaid will get 100% Federal coverage of that expansion initially, with 90% Federal subsidy after several years.  As anyone with a 401(k) knows, you say yes to the 100% employer contribution and  you stand on your head to find a way to accept the 90% employer contribution that requires a 10% match.  For a huge state like Florida or Pennsylvania, loss of the Federal match will amount to billions of dollars in lost investment in the state's medical industry.

My question is whether a state's decision to prohibit gay marriage will mean revenue loss to the state.  The most obvious site for this would be lost Social Security dollars if, for example, a surviving spouse would have received additional money.  I don't know if states banning gay marriage might miss out on Federal money in other ways as well.  

I'm guessing  the decision will have an impact on the tax revenue side as well - the marriage tax and all that. 

My colleague Norman Stein indicates that this decision will have significant impact on ERISA-related pension and benefit issues...everything from death benefits to tax protection ERISA-covered health care plans.  And it's hardly just a prospective matter: the issue of retroactivity of the decision may end up being a huge, financially consequential battle.  What about a person who died last month while legally married to their same-sex spouse?  Does that spouse benefit from Windsor?

For activists, Windsor may be a civil rights decision.  For lawyers in the trenches, however, it's also a trove of important legal issues just waiting to be litigated.

Extending "Married" Income Tax Benefits to Those in German Civil Unions

The German Federal Constitutional Court has ruled that it is unconstitutional to fail to extend to partners in civil unions the income tax benefits enjoyed by married couples.  Here's how Spiegel Online International explains it:

The Federal Constitutional Court in Karlsruhe ruled that the unequal treatment of marriages and civil partnerships regarding taxes was unconstitutional, and demanded that the law be changed retroactively to August 1, 2001, the date that Germany legalized civil unions. Until new regulations exist, the current provisions for joint filings of married couples can be applied to civil partnerships, according to the decision.

The move had significant political support. All parties in the parliament, with the exception of Chancellor Angela Merkel's conservative Christian Democratic Union (CDU) and its Bavarian sister party, the Christian Social Union (CSU), had recently called for such equal treatment.

The full article is here.

This will be an interesting development to watch.

Edited Versions of the Same-Sex Marriage Oral Arguments

For anyone interested in using the same-sex marriage oral arguments in class, or if you're just interested in listening to the arguments but don't want to listen to over 3 hours, I've edited down each day's arguments into just under 30 minutes.  They are below with times in parentheses after each argument.

A couple of caveats.  First, I edited them to use in my 1L conlaw course, so excerpts were chosen with that audience in mind.  Second, they are all mp3 files, so they are relatively small and should be easy to download.

Perry jurisdictional argument (7:06)

Perry merits argument (21:19)

Windsor jurisdictional argument (8:09)

Windsor merits argument (21:47)

Feel free to use/link/pass along as you wish!

Blind spots

A great post over at The Situationist blog about a new book from Mahzarin Banaji and Anthony Greenwald called Blind Spot: The Hidden Biases of Good People which is an attempt to bring some of their work on the Implicit Associations Test (IAT) to a broader, general audience. This work is interesting and provocative and, as noted in the blog, often controversial. But I suspect the book will be very interesting to those legal academics who have either written about the IAT or issues of implicit bias or cognitive limitations generally, as well as to practitioners who may be coming up against this sort of evidence in court or who, conversely, would like to use it in court.

Update: TFL blogger Michelle Meyer adds this review of the book from the WSJ blog,  Book Review: Blind Spot. After looking at the review I think I'd have to say it goes beyond simply offering a caution about importing the insights (if any) of the IAT, but is fairly hostile to this research.  It offers several of what seem like valid criticisms and a few that don't seem so valid to me.

The observations about the linguistic limitations, the crudeness of some of the measures and cautions about the associations which the authors make, are examples of  some of the valid critiques, although they do not necessarily lead to the conclusion that this work does not help to some degree in trying to tease out the difference between lying and lying to ourselves - or, in the context of discrimination, between what we consciously tell ourselves and what what we may actually do, or what may be unconciously informing some of the decisions we make.  I think some of the critics may be asking that this research conclusively prove discrimination rather than that it show evidence which is suggestive of it or supports an inference in that direction.  Of course conclusive proof of most connections in the social sciences is unlikely to be forthcoming, moreover, that is not the test for admissibility for expert evidence in court. Observing that a particular approach does not answer every question you might have with respect to the problem it attempts to study does not mean the test is invalid any more than the fact that an MRI and a CAT scan offer different information means that either is invalid.  Finally,  terms like "disrimination" "bias," etc. are all themselves extremely loaded in that they might suggest more to some readers than the authors intend.

On the other hand, Daubert, the case that provides the framework for the admissibility of expert testimony,  does provide that expert testimony needs to meet some basic standards of reliability, etc.  that if all these criticisms are well-founded, would probably lead to exclusion. So, facts like the authors' own meta-analysis failing to account for the vast majority of the data is, if true, a significant omission from the book and one that it would be interesting to follow up on. Indeed, if you were planning to use such evidence in court it would be remiss of you not to follow up on it. 

I think other observations in the review are less valid. Take this one:  "But if a test gives results that are so far-fetched, it's time to start questioning the validity of the test."  First, "far-fetched" is an assessment that assumes the very thing that the authors are trying to discover, whether it is indeed "far-fetched" that someone might harbor unconsious racial stereotypes, no matter what their ethnic background. The comment assumes that racial heritage or background is some sort of invariable predictor of attitudes.  A casual glance around at the diversity of political opinions within various minority groups should dispell that idea. So the ethnicity of Malcolm Gladwell's parents, while surely not irrelevant to the question of his attitudes towards race, is probably not dispositive of them.

Second, that some data diverges from what you expect to find is not necessarily a reason to question the test. Sometimes it is. That is always one possibility. But it also is possible that it is a reason to question your assumptions about what is or is not "far-fetched."  There are a great many things which are true even though they are counter-intuitive, for instance that certainty is strongly correlated with accuracy.

Moreover, in this, as in so many areas of research that are highly politically charged, there are some hints that there may be ideological divsions presented as metholodgical ones driving some of the critiques.  There does seem to be a way in which normative disputes about the legitimacy of underlying assumptions sometimes morph into arguments that purport to be about rigor or metholodgy, with one side claiming that the other is not really rigorous, when they may be working from radically different foundational assumptions.  Whether this is going on here is a question that can only be resolved by further reading of the works on which the book is based and those critiques which the WSJ article references.  I do not know the answer to that question. Interested parties should definitely read it all and decide for themselves.

At the end of the day, this book is, as advertised, a presentation of the authors' research for a general audience, with all the limitations that go along with such attempts. That said, you need not endorse immediate adoption, by the courts or legislatures, of any of the implications of the authors' research here to conclude that it is interesting and worth further exploration. And, for better or worse, as the National Research Council's report from 2009 on forensic science illustrates, the validity of a practice has rarely been an insurmountable barrier to its acceptance in the courts.  So this research is likely to migrate there. (I think it may have done so already and look to more knowledgable readers to alert me to those cases.) Whether you want to use it or defend against it, may pay to give it a look. This book looks like one entryway to that exploration.

Distributing Scholarly Speaking and Publication Opportunities Through Blind and Other Processes

Over at CoOps, Dave Hoffman has graciously taken the time to respond to my query about why there’s been such a fuss over Scholastica’s diversity widget, given prevailing attitudes in legal academia and elsewhere in the academy that when selecting participants in conferences, workshops, colloquia, and the like — which I’ll call, for short, “speaking opportunities” and which may or may not also involve publication opportunities — it is somewhere between permissible and obligatory to consider diversity. Dave argues that symposia (I don’t know if he sees symposia as different than the other speaking opportunities I mention) and articles serve different purposes, and hence, selection criteria should be different in these two contexts. Go read his argument, then come back for my response — and a bit of a confession.

Affirmative Action (In)Consistency (Obligatory Post on L’Affaire Scholastica)

As some of you may have noticed, (at least some of) legal academia is abuzz about the fact that Scholastica, the ExpressO competitor, asks authors to provide optional information about their gender identity, race, sexual orientation, and any additional “hardship diversity,” such as socio-economic status or geographic region. In response to objections by some, Scholastica has given individual journals the option of requesting the information or not, and to date, only California Law Review and NYU Law Review have done so. As a result, when you submit through Scholastica, you will be asked to provide optional demographic information only if you submit to one of those two journals. Josh Blackman has the background, including screen shots of the prior and current “diversity widget” and responses from various law review editors (here, here, and here). You can find additional musings about all of this at CoOps (here, here, and here), Prawfs, ProfessorBainbridge, and the VC. (Update 2/16/13, 5:30 pm: Kaimipono Wenger has a thoughtful Defense of Law Review Affirmative Action over at CoOps.)

Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit. My immediate interest in this is not about the appropriateness, per se, of what I’ll call, for simplicity’s sake, affirmative action (AA) in article selection. (For thoughts on that, see the links above.) Rather, I’ve been struck by the strength of objections to this apparent practice in light of equally strong beliefs in the appropriateness of AA when it comes to selecting conference participants, and the like. Here’s the question I posed on one of Dave Hoffman’s Scholastica threads over at CoOps:

I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)

Although “Anon” responded that s/he viewed these as “analytically equal” (and equally inappropriate), one "AnonProf" argued at some length that the two practices could in fact be distinguished, with AA appropriate — indeed, “very important” — for symposia invites, but not for article selections. Dave, who has said that AA in article selection is a “terrible, terrible practice,” agreed. [Update 2/17/13, 11:05 pm: Dave has clarified his reasons for distinguishing article selection from symposia invites here.]

As I said there, “I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).” Since the Faculty Lounge seems to be the only law blog without a Scholastica diversity post, and since my fuller response to AnonProf’s argument would have further hijacked Dave’s thread, I thought I’d move this aspect of the conversation here.

Civil Partnerships vs Marriage: Why Not Both?

Erez Aloni (2011-2013 Center for Reproductive Rights-Columbia Law School Fellow) published in today's HuffPo (here) an op-ed entitled "The Future of Our Relationships."  He writes about anticipated Scottish legislation would permit same-sex marriage in that country.  Scotland currenly permits civil partnerships for same-sex couples (and only same-sex couples).  Here's an excerpt from the piece:  

With Scotland's recent decision to legalize same-sex marriage, it may possibly remove the option of civil partnership, as Norway, Vermont, and Connecticut did. However, Scotland could decide to mimic France, which offers its citizens a menu of options for the legal recognition of relationships. No longer are the choices limited to marriage or informal cohabitation -- all or nothing. Rather, couples can choose to marry, or, instead, to register their partnerships with the state and gain the benefit of state and third-party recognition of their union while avoiding some of the obligations and loaded symbolic baggage that come with marriage.

Think about it this way: civil union -- or state registration -- could be the perfect solution for people in a trial cohabitation period, for the elderly who prefer to avoid a new marriage, and for those who want to eschew matrimony for whatever reason. What is more, the state could set up civil partnerships (as Belgium has, for instance) benefiting other dyadic relationships -- friends, relatives, or caregivers. Under this system, you could design your legal commitment to suit your relationship ties while avoiding awkward societal, familial, and legal hassles.

Aloni makes two important points.  First, there's no reason that civil partnership must be organized around sexual choices. (In other words, "civil partnership" could be available to two elderly sisters who live together and share all expenses, for example.) Second, from a legislative perspective, a jurisdiction could offer intended partners a choice between civil unions and marriage.  In other words, each couple could make a decision about the level of legal benefits and burdens they wish to import as "default terms" of their relationship.

Aloni develops these arguments more fully in Registering Relationships (download available here), forthcoming in the Tulane Law Review.  I think it is a very good piece.

Garrow on Carpenter on Lawrence

University of Pittsburgh law professor David Garrow -- who won a Pulitzer Prize for Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference, and contributes to the civil rights trivia discussion here at the faculty lounge -- has a review of Dale Carpenter's Flagrant Conduct: The Story of Lawrence v. Texas  in The New Republic.  The review begins:

THE SUPREME COURT’S decision striking down state statutes that criminalized gay sex was a constitutional landmark, and will remain famous long after today’s arguments over same-sex marriage come to seem just as antiquated as the early 1960s disputes over racially segregated public accommodations. Lawrence v. Texas, in 2003, arose from an unlikely confluence of unusual circumstances. Dale Carpenter’s assiduous unearthing of the case’s early history in Houston’s overlapping gay and law enforcement communities highlights how every great constitutional decision owes its existence to obscure individuals whose crucial contributions proved more essential to the final outcome than anything in the legal briefs or oral arguments.

Read the rest here.

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