The New York Court of Appeals ruled today that the Westchester County Executive and the New York State Department of Civil Service were within their legal powers when they issued orders requiring relevant public officials to

recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.

The Alliance Defense Fund of Scottsdale, Arizona, a conservative legal group opposed to marriage equality rights for same-sex couples, brought this lawsuit, finding local New York plaintiffs to challenge the recognition of out of state marriages of same-sex couples.

The legal issue here is called one of comity or reciprocity – the principle that one jurisdiction will extend certain courtesies to other states, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts.  Except in some very narrow exceptions, New York has a well-settled marriage recognition rule, which “recognizes as valid a marriage considered valid in the place where celebrated.”

It is important to appreciate why this ruling is so important.  The New York Times portrays the Court’s decision as narrowly written and applied to a small number of people, but it’s meaning is more profound if read in light of what the Court was asked, and refused, to do.  Had the plaintiffs won the case, they could have done so (as the concurrence to today’s opinion points out) by analogizing out-of-state marriages of same-sex couples to incestuous marriages.  The Alliance Defense Fund argued that this case fell within an exception to the marriage recognition rule for matters of public policy, such as for incestuous marriages entered into in other states that allow such marriages.   The analogy – that marriages of same sex couples violates New York public policy just as incestuous marriages do – is not an unfamiliar one made by opponents of marriage equality rights for lesbian and gay couples, and is deeply offensive to the advocates of marriage equality for lesbian and gay people.

That the Court rejected the public policy argument here is significant.   The Court could have said that the matter is one for the legislature, not for the Court – as it did when it rejected the constitutional challenge to the exclusion of same-sex couples from legal marriage in Hernandez v. Robles in 2006.   This is an important point: To grant the plaintiffs’ public policy argument would be to hold that the New York State Legislature’s failure to pass a marriage equality bill amounted to a repudiation of marriages by same sex couples elsewhere, full stop.  But legislative inaction/silence cannot and should not be given such strong judgmental meaning.   The fact that the Court held in Hernandez that these marriages are not constitutionally required does not foreclose a range of executive and legislative action to incrementally recognize the spousal-like character of lesbian and gay relationships.

One last point: Sasha Samberg-Champion, the lawyer who represented the State in the case is an Assistant Solicitor General in the Office of the New York State Attorney General, and a 1985 graduate of Columbia Law School with whom I worked on his excellent Note: Sasha Samberg-Champion, How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence, 103 Colum L Rev 1838, 1839 (2003).

The New York Court of Appeals is currently weighing issues of critical importance to families around the state of New York in the matter of Debra H. v. Janice R. The petitioner in the case, Debra H., seeks to prevent the possibility that she may never again see the child she parented since birth.  Respondent, her former partner and biological mother of the child, claims that Debra H. has no legal rights as a parent.  This week, Columbia Law School’s Sexuality and Gender Law Clinic  filed an amicus brief with the New York Court of Appeals on behalf of forty-five family law scholars from every law school in New York State.  The brief was written by Professors Suzanne Goldberg and Ariela Dubler together with Clinic students Harriet Antczak, Mark Musico and Seung-Jae Lee, and urges the Court to bring the State into line with the clear trend in family law by recognizing important functional parent-child relationships.

Given the reality of today’s families, in which children are increasingly parented by adults other than their biological parents, Debra H. is not the only mother with a vital interest in this case.  Rather, at stake are the rights of all “functional parents” like Debra H. and the best interests of their children.

Currently, New York treats functional parents as “legal strangers” to their children, due to the 1991 Court of Appeals case, Alison D. v. Virginia M. There, a lesbian couple planned to have a child together, but when the couple separated, the biological mother attempted to cut off all contact between her former partner and the child.  Ruling on the former partner’s suit for visitation, the Court held that she had no legal rights as a parent.  Because she had no biological or adoptive relationship to the child, the Court found she did not meet its narrow reading of “parent” within the state visitation law.

Mounting evidence shows the harm caused when courts separate children from their functional parents, as in the Alison D. case and many other post-Alison D. cases in which courts have continued to treat functional parents as though they are unrelated to the children they have been parenting.

Taking account of this evidence and the changing realities of the American family, scholars and courts around the country have rejected the rigid conception of the family embraced in 1991 by New York’s high court.  They recognize that only a functional approach can adequately protect the many families in which children are raised by adults who have functional, but not legal or biological, ties to them.

Drawing on the wide consensus among scholars and many courts, the Clinic’s amicus brief calls on the Court to grant functional parents the same rights and responsibilities as legal parents at the point of family dissolution.  As the brief argues, “[t]his functional approach best serves the interests of New York’s children, consistent with New York’s family law jurisprudence and this Court’s equitable authority.”

Specifically, the brief shows two key criteria New York courts should consider in assessing claims to parental status made by functional parents.  First is that the legal parent must consent to the functional parent’s assumption of parental responsibility for the child.  Second, the functional parent actually has to have intended to and assumed parental responsibility.  In addition, courts can consider the parent-child bond between the functional parent and the child.  The brief highlights agreement among courts and scholars that these criteria for defining functional parenthood not only fairly assess claims by functional parents, but also protect the interests of legal parents and serve the best interests of children.

Importantly, the forty-five law school faculty members – hailing from all fifteen of New York’s law schools – demonstrate the best judgment of the legal academics who teach, write about, and practice family law, including many who have particular expertise in child advocacy and scholarship related to the best interests of children.  Their support is a powerful statement to the Court that the time has come to replace the harmful formalistic rule of Alison D. with a functional approach to defining the legal family.

The Supreme Court of Puerto Rico is currently considering whether Puerto Rico’s laws permit the adoption of a child by a non-biological parent who is the same-sex partner of the child’s legally recognized parent.  Such adoptions are typically referred to as “second-parent” adoptions because they occur in situations where the child already has a legally recognized relationship with one (usually biological) parent and the adoption provides the same recognition to an additional parent.  Most U.S. states already allow second-parent adoptions by a same-sex partner, but so far, Puerto Rico does not.

This case, In the matter of AAR, involves two women in a committed relationship who have co-parented a child from birth.  While not contesting that the non-biological mother has functioned in every important respect as the child’s parent, the lower courts have applied a narrow reading of Puerto Rico’s adoption statute and denied her petition, saying second-parent adoption is available only to opposite sex partners.

Significantly, the courts have not inquired as to the best interests of the child in question.  This is unfortunate both because this is standard for adoption decisions in Puerto Rico (and most jurisdictions) and because second-parent adoption is critically important to the children of same-sex couples.   As in most cases, granting the adoption in this case would merely formalize a parental relationship that already exists in fact.  This legal recognition is psychologically significant to children with same-sex parents as an indication of their families’ equal dignity and legitimacy.  Adoption is also of great practical value because of the many rights and privileges that attach to the parent-child relationship.  These practical considerations include custody, inheritance, financial support, medical decision-making, and many other legal protections.  In light of these considerations, second-parent adoption is clearly in the best interests of children being raised by same-sex parents.

On Thursday, November 12, 2009, the Sexuality and Gender Clinic offered its expertise to the Puerto Rican Supreme Court by filing an amicus brief in order to ensure that the most current developments in international and comparative law related to sexual orientation, gender, and family law were made available to the Court.  The Clinic took the position that international and comparative human rights law together support an interpretation of Puerto Rico’s adoption law that would enable children in families with two same-sex parents to be adopted by their non-legal parent.  In doing so the amicus brief drew the Court’s attention to the international human rights norms that enshrine the rights of the child, the rights of the family and the right of the individual to be free from discrimination on the basis of sexual orientation.  It also pointed to the trend in the both the United States and around the world towards interpreting adoption statutes in a way that permits second-parent adoption without regard to sexual orientation.

The Clinic concluded that, by according due consideration to the human rights law and norms that have long informed the Commonwealth’s jurisprudence, the Court can and should interpret the Puerto Rican adoption law at issue to permit the child in this matter to be adopted by a parent she has known her entire life.

Caitlin Boyce LLM, Catherine Poynter 3L, Brian Ward 3L – authors of the AAR Amicus Brief for the Sexuality and Gender Law Clinic

Unless you were living in a cave you should be aware that a week ago Tuesday the people of Maine decided to pass on marriage rights for same-sex couples.  Commentators described it as not only “a harsh blow to the gay marriage drive,” but “a major set back to gay rights,” and “a tremendous and devastating loss for LGBT rights“.  From these reports the Maine vote served as a barometer for not only the fate of the marriage equality movement but for lgbt rights more generally.

In isolation, I don’t regard the vote in Maine to be as apocalyptic as some in the media have maintained.  After all, the sentiments of Mainers is trending, and trending quite quickly, in a favorable direction on the question of accepting legal marriage for same-sex couples.  If marriage is your issue, then give it a legislative session or two – they’re almost there.

But while we were all looking in a northeasterly direction, some very interesting things have been going on elsewhere in the country on the question of sexual rights.  Not only did the health care bill that came out of the House last weekend explicitly remove the tax penalty carried by lesbian and gay employees who put their partners on their health plans (removing its treatment as taxable income) but other important and positive legislative action has taken place since the Maine vote:

- The Fort Worth, Texas city council voted 6-3 yesterday to amend the city’s anti-discrimination ordinance to include protections for transgender people.  Fort Worth is not exactly the “Castro of the South,” and the fact that the vote was 2 to 1 in favor of the change in the law is fantastic.  But it gets even better.  As the Fort-Worth Star Telegram reports:  “A lot of the debate, though, centered on broader proposals, some of which the council has already tacitly approved.  City staffers will be trained on dealing with the lesbian, gay, bisexual and transgender community, and the Police Department has appointed a liaison to the community.  Other recommendations will require further study, including offering domestic-partner benefits and expanding the city health insurance plan to cover gender reassignment procedures, including sex changes.”

- Tharptown High School in Russelville, Alabama yesterday decided to reverse an earlier decision to bar a lesbian student from bringing her girlfriend to the Junior Prom.  After pressure from the ACLU on behalf of the student, Cynthia Steward, the school district yesterday capitulated and announced that they could attend the prom together.

- Yesterday the city council in Salt Lake City, yes Salt Lake City, voted unanimously to add sexual orientation and gender identity protections to its anti-discrimination law.  Why was the vote unanimous?  Because the change in the law had the full backing of the Mormon Church.  “The church supports these ordinances because they are fair and reasonable and do not do violence to the institution of marriage,” said an LDS church spokesman.  Don’t believe it?  Watch:

This embrace of gay and trans rights by the people of Salt Lake City and the LDS church did not come as a surprise to those who have been watching the sophisticated political work being done there by lgbt activists in coalition with other progressives.  As I blogged before: Lisa Duggan’s has written in What’s Right with Utah, about the successful and radically progressive political campaign going on in Salt Lake City undertaken by the lgbt community after they lost the chance to gain marriage rights when the state constitution was amended barring such unions.  They regrouped, found straight partners with whom to work in coalition, and have taken on much broader reforms than what they could have accomplished with “mere” marriage rights for lesbian and gay couples.  Brilliantly, they found local Mormons who opposed gay marriage, but who said they weren’t homophobic and took them at their word.  They found that of this group 62 percent supported employment nondiscrimination laws, 56 percent supported fair housing laws and 73 percent supported granting adult designees of state employees health insurance coverage. They also found that 56 percent backed legal protections like inheritance rights and job protection for LGBT people.  When they could no longer ask for marriage they found unlikely partners with whom they could ask for much more than what marriage would have provided.

The marriage crusade (and I mean crusade) had a set back in Maine the other day.  But let’s not overdetermine that event as indicative of  more than it can and should bear.  First of all, the folks in Maine working on this issue have suffered a set back, but not annihilation.  But perhaps more important, the fight for marriage equality isn’t the only thing lgbt people, or queer people for that matter, care about.   Whether it’s going to the prom with your girlfriend, getting a hate crimes bill passed, changing the heteronormative bias of tax laws, or thinking outside the politics of matrimony as they have in Utah, a gay rights agenda, and certainly a queer political agenda, is undermined by reducing it an up or down vote on marriage in any one state.

After a number of speeches in support of a measure honoring military veterans (tomorrow is Veterans’ Day) the New York State Senate suspended public deliberations – or “stands at ease,” in the official language of the body – not taking up either Governor Patterson’s deficit reduction plan (NYS has a $3 billion shortfall in its budget that needs attention) or the marriage equality bill.  They will need to address both issues while they are in this special session, but insiders in Albany cannot say when either or both will be formally addressed or what outcomes we can expect.

Follow below a live stream of today’s special session of the New York Senate, during which a vote on marriage equality is expected to take place.  The session begins at noon, but we don’t yet know when the vote may occur.

This has been a huge week for legislative action on a range of sexual rights – both at the local and national level (marriage equality measures passing in Washington State and Kalamazoo, Michigan, and going down in Maine; strict abortion funding restrictions going into the health care reform bill in DC while the bill included a provision that would remove the tax penalty for lesbian and gay employees who include their partners in their health insurance).   Each of these votes  has been framed in the media and by some activists as a watershed moment for the rights and issues at stake, whether it be same sex marriage or abortion rights.  But, of course, that’s wrong.  With each of those votes we’re seeing politics at work, the dialectic back and forth of legislatures and the voting public responding to an evolving notion of justice and fairness.

Today the New York State Senate is likely to take some action on the marriage equality bill.  The bill already passed the Assembly and we’ve been waiting for the (typically dysfunctional) state Senate to take up the issue.  Because Governor Paterson put the bill on the agenda yesterday, some sort of action is required by law, though this need not necessarily be an up or down vote on the issue.  Most Albany watchers don’t see the votes necessary to get the bill passed, and the vote in Maine last week didn’t help those New York State senators who were on the fence or feared getting out ahead of their electorate.  To make matters worse, yesterday the National Organization for Marriage threatened GOP New York senators that it will fund a primary challenge against any senator who votes for marriage equality.  Radical right saber rattling didn’t help in an upstate New York congressional race last week when Sarah Palin and the tea baggers tried to sway the race away from a republican candidate who was eclectically conservative in favor a right wing nut who didn’t even live in the district, but it might this time.

The New York marriage equality bill may not pass today, and many will proclaim that this is the nail in the coffin for same-sex couples’ marriage rights, following on the heels of the Maine vote last week.   But this won’t be true.  To frame victory as “winning the vote the first time it comes up” is a short-sighted and narrow way to understand what this civil rights struggle, like any other really, is about.  With the vantage point of only a little bit of distance from this week’s events, we can see a tide rolling in the direction of marriage equality insofar as the bill passed the New York Assembly, the Governor has put it on the top of his legislative agenda, and the bill has finally made its way to the Senate.  If it goes down today we’ll introduce it again.  And again.   And again.  That’s how almost all legislative advances have been won for lgbt people – not the first time, usually not the second or third time, but eventually the injustice of it seems too much to bear and the expansion of the law become inevitable if not overdue.  We may not be there yet, but it will come.  Indeed the change in public sentiment on this issue has come much faster than I would ever have predicted.   If nothing else, cohort replacement will accomplish this civil rights revolution, since younger people support same sex-marriage rights in far greater numbers than do the aging boomers, as Jeff Lax and Justin Phillips so clearly demonstrated in their study of the evolving attitudes of the general public on gay rights issues.

What I find much more troubling is the rather substantial erosion of public support for the reproductive rights of women that the House’s vote on Saturday night signalled.   More on that next.

Letizia Palumbo is a visiting scholar at Columbia Law School, and a Ph.D. Candidate at the University of Palermo, Department of Politics, Law and Society.  This fall at Columbia she is researching the limits of current feminist interpretations of sex-trafficking developed around the “victim” versus “agency” dichotomy.  These are her thoughts about two recent cases of sexual violence in Italy:

Last October 17th in Italy, the Court of Appeals of Rome issued a sentence declaring that the rape of a sex worker is less punishable than the rape of a woman that does not choose to be a prostitute. The day after, October 18th, the Juvenile Court of Rome decided to suspend the trial of eight Italian boys who raped a young girl of 14. These two sentences, although not final at the time of this writing, constitute yet another step backwards in the recognition and strengthening of constitutional and legal rights of women in Italy.

Let’s examine the first case. On November 2008, an Italian man of 31 years old kidnapped, robbed and raped a Romanian prostitute. On March 2009, the man was charged with kidnapping, sexual violence and robbery, and was condemned to seven years imprisonment. Nevertheless the most recent sentence by the Court of Appeals of Rome on October 18th reduced his jail time from seven to three years and four months.

The main idea behind this decision was that sex workers by choosing to “work on the street,renounce their physical and moral integrity.” The physical, moral and legal offences to a prostitute cannot be considered equal to that of woman who is “not a prostitute” and, therefore, the crime in question should be judged in light of these attenuating circumstances.

It is clear from this perspective adopted by the Court that women must conform to the attitudes/behaviours that are morally accepted by society. Failing to do so, they run the risk of being punished (by being raped).  This means that men can feel empowered to violate women’s autonomy and not respect the rights of sex-workers because sex workers have neither social nor legal legitimacy.  This sentence, thus, implies different punishments for two kinds of rape. There are rapes of “series A” which have to be strongly punished, and then there are those of “series B” which require less punishment because the victim’s moral transgression or behavior encourages sexual violence.

The “series B” category could also be applied to the case of the young girl raped by eight boys in August 2007, in Castro Montalto – a small town close to Viterbo (Rome).  The eight boys, all juveniles at the time, met a 15 year old girl at a party, led her out into the woods, and gang raped her.  A few days later, the girl reported the crime and the boys were identified.  To great public outcry, the mayor of Montalto di Castro provided 20,000 euro to cover legal costs for six of the eight boys -indeed one of the boys seemed to be his nephew.   As mentioned at the beginning of this article, last October 18th the Juvenile Court of Rome settled to suspend the trial, deciding to “put the boys under observation” for 24 months. The young men (two of which are now 18 years old) will have to follow a program of support and control and at the end of this period must demonstrate sincere penitence and apologize to the victim and her family for their deed.  If they pass this test, the court will strike the crime from their record.

Rape of the Sabine Women[/caption]Not only have feminist groups raised their voices in protest, but the public at large has also expressed its indignation over this sentence, whose passing so clearly demonstrates how little traction feminist politics are getting in Italy.  In fact the decision of the Court of Rome shows, for the umpteenth time, an institutional failure to adequately address the issue of violence against women.  While the young men will be absolved and assisted in their reintroduction into society, their victim has been abandoned.  No institution has thought about the social rehabilitation of the girl, who is so traumatized that she has dropped out of school.

Public furor has also been directed at many of the people of Montalto di Castro, who have shown solidarity with the rapists.  One local said “these guys are good boys, they don’t need to rape rather it was this girl that the same day, before of the party, had sex with another boy….”  Someone else commented “if I were 17 years old, I would line up to get with her….the girl is not serious. It is her fault.”  Even the mayor of the city weighed in, implying that native-born Italians are genetically incapable of rape, although for the immigrant population it is another story altogether. “Rape exists only when committed by Romanians” he said, and then added “the only animals in our region are the Romanian immigrants. They’ve got rape in their blood.”  When the Romanian community expressed its displeasure at his comments, he denied ever saying them. The victim’s mother, recognizing that this case is not without its racial and cultural overtones, commented that “my daughter is not getting justice because the boys are Italians.”

The disconcerting comments by the locals of Castro Montalto, along with the decisions by the Court of Appeal of Rome and the Juvenile Court of Rome, demonstrate that after many years of feminist and women’s struggles, Italian public opinion and its institutions still seem to adhere to the idea that women bring sexual violence upon themselves through their behavior.  In other words, when a woman decides to act in a manner not sanctioned by dominant values, her free expression implies a de facto sexual availability, which can be “conquered”, if need be, by means of violence.

In this interpretive light, an act of violence against a woman is, paradoxically, not a consequence of her oppression, but her freedom.  In fact, the freedom of women (and the resulting anxiety that women no longer carry on traditional cultural and national values) compels men to exercise their power and control through violence.  In short, violence against women increases proportionally to the amount of freedom and power that women acquire.

Violence against women is thus a manifestation of men’s fear about women’s freedom and mobility. This fear, as Italian scholar Tamar Pitch stresses, is “closely linked to fear about the future and the ‘other,’ which leads to the search for – or even the fabrication of- pseudo-homogeneous, pseudo-traditional cultural identities.” As a result, such sentiments lead to the criminalization of migrants, who are potential menaces to national “values.”

From this perspective, the two aforementioned cases illustrate perfectly how in Italy legal and political strategies often use the issue of rape in order to underline the boundaries between “we” and the “others”, “citizens” and “migrants”, “good women” and “bad women.”  According to the reigning criteria in the Italian legal and political discourse, sexual violence most frequently occurs either when a woman chooses to act  “inappropriately,” thus imperiling herself (considering specifically sex-workers), or when migrants rape white women (thus leading to strengthened security measures against immigration).

Once again, in Italy the body of women is used by the political and legal discourse to reinforce and reshape racist and/or moral ideologies and stereotypes.  And once again what is ignored is the structural inequality of power that creates the condition for the social control over women and also undermines women’s security.  And what is lost in the argument, once again, is the real suffering of women.

Maine voters will see on their ballots next Tuesday a proposition to repeal legislation that would have allowed same-sex couples to marry.  The language on the ballot is:

Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?

The Research 2000/Daily Kos poll just released the following poll results:

As you may know, there will be one question on the ballot this November in Maine addressing the issue of same-sex unions. In part, it will read “Do you want to reject the new law that lets same-sex couples marry?” A “YES” vote takes away the right of same-sex couples to marry. A “NO” vote keeps the right of same-sex couples to marry. If the election were held today, would you vote YES or NO on this question?

And on the broader question of marriage rights more generally, this is what they found:

Regardless of how you might vote, do you favor or oppose allowing gay and lesbian couples to marry legally?

Latest results: http://www.dailykos.com/statepoll/2009/10/28/ME/412

As seems true everywhere else, men and women favor or oppose extending marriage rights to same-sex couples is opposite proportions.  Of course, there’s much to be said about why women, overall, are more supportive of this issue.  Possible explanations are:

- since the institution of marriage is typically a less-good deal for women than for men, women are less invested in maintaining its traditional form;

- men suspect, consciously or unconsciously (and I might add rightly or wrongly), that the hetero-patriarchal dividend they get from marriage might lose value if same-sex couples are allowed to wed;

- women are just more enlightened human beings than are men.

We’ll all watch the returns on Tuesday night.   Since game 6 of the World Series will be played that night, maybe the fellas in Maine will be too distracted to get out and vote.

Whatever way it comes out, we are having a forum the day after the election, Wednesday, November 4th,  at 4:30 pm with a panel of experts to discuss Marriage Equality in Maine: Lessons Learned, Future Directions - Room 107, Greene Hall.  Panelists will be: Suzanne Goldberg, Director of the Center for Gender & Sexuality Law; Nate Persily, Charles Keller Beekman Professor of Law and Professor of Political Science; James Tierney, Director of the National State Attorneys General Program at Columbia Law School and former Maine Attorney General; and Jeffrey Lax, Professor of Political Science and co-author of Gay Rights in the States: Public Opinion and Policy Responsiveness – a well-regarded study published this summer in the American Political Science Review.  The event will be webcast.  More information on that to follow.

A day doesn’t go by that we don’t hear about a man in the public eye being found to have had sex with female subordinates at work.  Today’s offender is 46 year-old Steve Phillips, ESPN baseball analyst (love that term, instead of “on-air baseball commentator who was accused of sexually harassing a female employee when he was general manager of the Mets in 1998″), who seems to have had a short-lived affair with a 22 year-old female production assistant.  Like David Letterman, whose office affair with a younger woman turned sour when her ex-boyfriend tried to blackmail Letterman, Phillips got into trouble when the woman he had been sleeping with began calling Phillips’ wife, Marni,  after he broke off the affair and sent her a letter graphically describing their relationship and Phillips’ birthmarks.  Mrs. Phillips filed for divorce in September, Phillips was fired from ESPN last Sunday, and today we learn that ESPN fired the young woman as well.  What a mess.

What relationship does this scandal bear to other recent sexual misconduct by guys in the public eye?  As we all know by now, David Letterman has had to perform public acts of contrition on his TV show after it became known that he had had multiple affairs with female members of his staff, yet the scandal seems to have been good for the show’s ratings and Letterman is nowhere close to being fired (doesn’t hurt that he is his own boss) or canceled by NBC.  Then there’s Elliot Spitzer, who, unlike Letterman but like Phillips, lost his job on account of his sexual misdeeds.  (I’ve blogged previously about the Spitzer mess – and actually see it as representing a kind of problem different from what’s at stake in the workplace affair cases, such as those of Letterman and Phillips).

Is sex with a subordinate always justification for termination?  Did ESPN get it right and CBS/”World-Wide Pants” (Letterman’s production company) get it wrong?  Does it always violate laws prohibiting sex discrimination in the workplace?  Should it?

The National Organization for Women has taken a strong position on this issue, issuing a press statement shortly after the Letterman-imbroglio broke condeming him and CBS for having created a “toxic work environment” for women.  Sleeping with his female staff created “an awkward, confusing and demoralizing situation” for female workers.  (Surely this could have been put somewhat better: Is awkwardness or confusion what the law of sexual harassment was designed to prevent?)

So here’s the thing: Are right-minded people supposed to conclude that women can never, never, consent to sex in the workplace – particularly with someone of greater seniority?  Is there anything else that you’d want to know about these cases in order to fully judge their illegality?  Is awkwardness or confusion enough?  What about implicit or explicit threats, promises of rewards, retribution, or prices to be paid once the affair ends?  Or should we hold the view – should the law hold the view – that the mere fact of the sex is enough to declare that sex discrimination is what happened?

Many feminists maintain that consent is not a meaningful concept in a workplace setting where sex takes place between a male superior and a female subordinate.  For them, the sex is from the start suspect and discriminatory.

Yet what is the cost to women’s sexuality of such an approach?  This is the challenge as we think through workplace sexual harassment doctrine for the 21st Century: How to acknowledge, on the one hand, that many, many women suffer explicit and implicit forms of humiliating and degrading harassment of a sexual nature in the places where they work, while at the same time crafting an approach to this issue that does not overdetermine women as always, already sexual victims – allowing some room for our sexualities to be more than an injury waiting to happen.

From the very start of the Letterman affair, when we knew nothing about the nature of the relationships he’d had with the women on his staff, many just assumed that the women he slept with were victims, felt discriminated against, exploited, and/or used.  But what if they didn’t?  What if they 1) were the ones who initiated the affair, 2) were embarrassed to have had it, 3) were bummed that their relationship with Letterman had ended, 4) were relieved that it was over, 5) had positive feelings about the affair, or 6) were indifferent about the whole thing?  Would this information change how we judged the situation?   Should it?  Or should we have a rule that starts from the premise that the likelihood of exploitation and discrimination is so high in workplace romances between male superiors and female subordinates that we ought to have a “prophylactic” rule (sorry) that prohibits and punishes them all, no matter what.

I incline in the direction of wanting a more subtle approach to the problem than that urged by NOW in it’s statement on the Letterman affair.  I’ve written about this in academic journals, and was recently interviewed by a Brazilian TV show that wanted to explain to their audience what the big deal was about Letterman’s affair.  You can watch some of it here:

And then there is just my quick and dirty explanation of sexual harassment law in the U.S. (with an added bonus-feature of my thoughts on the Roman Polanski arrest):