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).

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.

Marriage Equality in Maine:

Lessons Learned, Future Directions

Wednesday, November 4th 4:30 pm  Room 107, Greene Hall

▸ 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

The panel will stream live on the web here

Reports from Maine show high turnout at the polls – this is read as good news for preserving marriage rights for same sex couples.  You know, homos don’t like rain!

The passage of Proposition 8 in California a year ago unleashed a troubling new strategy in the movement to extend marriage rights to same-sex couples: public shaming.  In an effort to slow down the ever-increasing use of propositions and referenda that forestall or overturn court or legislatively created marriage rights for same-sex couples, some advocates have been pushing hard to publicly disclose the names of people who sign petitions that get these measures on the ballot or who make donations to the organizations that support them.

The thinking goes like this: there ought to be some cost to supporting these homophobic (or at least same-sex marriage -ophobic) propositions/referenda through your signature or financial contributions.   Shame on you.  And we’ll bring shame on you by publicizing your name on the internet and elsewhere.  (See, for instance knowthyneighbors.org.)  You may then risk boycotts or picketing and angry gay people showing up on your front lawn throwing rotten lavender fruits at your home.  As the Wall Street Journal reported last winter about the fall-out after the donors to the Yes on Proposition 8 campaign were revealed:

A Palo Alto dentist lost patients as a result of his $1,000 donation. A restaurant manager in Los Angeles gave a $100 personal donation, triggering a demonstration and boycott against her restaurant. The pressure was so intense that Marjorie Christoffersen, who had managed the place for 26 years, resigned.

After all, what’s wrong with making the people who support these retrograde propositions face some kind of public accountability for the role they play in the denials of lesbian and gay people’s civil rights?

Well, first off all, isn’t there something rather, um I don’t know, ironic about gay people seeking to use shame as a political tool to combat their enemies by dragging them out of the closet?  I know, we heard this argument in the 1980s and 1990s when “Outing” was in fashion, and the likes of Michael Signorile sought to “out”  gay public figures who took positions hostile to the lgbt communities’ interests.

But maybe there’s something a bit different than the same form of “outing” going on now.  The current political and legal strategy to force disclosure of supporters/contributors to anti- marriage equality measures smells a lot like the strategies that were used by racists, anti-communists, anti-unionists, and others in the 1950s and 1960s when they demanded that organizations such as the NAACP, the ACLU, the National Lawyers Guild, unions, SDS chapters, the Social Workers Party among others divulge their membership lists.  There was a spate of Supreme Court cases in this period that found pretty consistently that these disclosure laws violated the First Amendment associational rights of the members of these organizations.  This was particularly the case when, as the Court held,

There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and presures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names.

This language came from Bates v. City of Little Rock, the 1960 case that challenged the Arkansas law forcing the NAACP to disclose the identity of their membership.  But it could just as well describe the current aims and effects of efforts to gain disclosure of anti-gay marriage supporters.

Perhaps more important, it was quite common for public and private actors to seek disclosure of the membership lists of various lesbian and gay rights organizations not so long ago.  After all, until recently, the membership of the organizations was made up of felons – admitted sodomites.  Perhaps we’ve forgotten what a risk we all felt we were taking when we joined the Daughters of Bilitis or the Mattachine Society, or what courage it took to subscribe to their magazines – The Ladder and the Mattachine Review.

Today, in New York, San Francisco we take it as common-place, if not irritating, when we are stopped on the street by the young person with an HRC clip-board paid by the hour to get new members, and thus membership in lgbt organizations seems like such a trivial matter.  But joining these organizations is not a trivial matter everywhere in the U.S. and not that long ago it wasn’t in the homo-metropoles either.  (Notably, the lesbian and gay lawyers organization in San Francisco still has a closet name: BALIF- Bay Area Lawyers for Individual Freedom, and not too long ago New York’s lgbt lawyers group was called BAHR-GNY – the Bar Association for Human Rights of Greater New York.)

A rather shocked colleague commented to me after I gave a paper the other day:  “Katherine, you really are a radical,” and it’s true, but I don’t countenance strategies committed to “by any means necessary.”   Just as I didn’t support liberal groups’ plans in 1990 to queer-bait David Souter on account of his being unmarried when he was nominated to the Supreme Court, I find myself recoiling at today’s turn to shaming as political tactic.

There are important issues at stake in the disclosure of the names of those who support these propositions we abhor.   Associational rights have been highlighted in the Supreme Court’s discussion of this strategy in other settings, but there are important concerns of chilling political participation, privacy, and the anti-deliberative impulses of mob-based retribution as well.  Then there’s the goose and gander issue – just because the climate in some places right now might make disclosure of these names “useful” to the marriage equality movement, that doesn’t mean that we aren’t establishing a precedent for a strategy that will likely come to bite us in the butt in the future – or bite the butts right now of allied movements whose vulnerabilities we ought to be keeping in mind (try giving a donation to a benevolent organization in Iran or Palestine these days, as I have: you know your donation cannot be made anonymously).

Sure, I delight in these moments riddled with schadenfreude as much as the next person, but as my mother used to say, that doesn’t make it right.

Nicole Medham is a third year law student at Columbia Law School and has these thoughts about a recent 20/20 episode that caught her attention when the authors of Freakonomics were interviewed about the what and why of various implications of feminism:

Last Friday’s edition of ABC’s 20/20 featured the authors of the bestseller Freakonomics, Steven D. Levitt and Stephen J. Dubner, who were promoting the sequel to their best seller SuperFreakonomics.  During the hour long broadcast, some time was spent on the authors’ controversial views of the women’s liberation movement.  Essentially, Levitt and Dubner argue that the principal beneficiaries of the liberation movement were not female teachers or financiers, but high end prostitutes.   To that end, both men say that those who seek to “save” women from prostitution should ask and determine why women are responding to the market and becoming [high end] prostitutes in the first place.  Additionally, the authors argue that the invention of hormonal birth control gave women more control over their future occupations; therefore, instead of having to choose an occupation like a teacher which would allow for flexibility to enter and leave the work force, they could choose to become doctors, lawyers, bankers, etc.  Because of this, Levitt and Dubner claim that the talent level of school teachers has fallen, thus leading to the seeming overall failure of the country’s public school system.

Let’s take on the prostitution issue first.  Of course to some anti-prostitution advocates, there is no need to question why women choose prostitution, as it is invariably a result of the sexist and patriarchal society we live in.  Yet, I can’t help but think that Dubner and Levitt are right in that this is question that must be asked in order to make any needed changes.  In order to solve anything, one must get to the root of why the “problem” is occurring in the first place.  The women who have supposedly benefitted aren’t the stereotypical prostitute one thinks of that sets up shop on a dingy poorly lit street corner.  These are often [well] educated, well versed women who had fairly stable upbringings.  In fact, the woman profiled on 20/20 actually had a husband, children, and stable job, all of which she left to become a [high end] prostitute, due to her claims of boredom.  So  why would someone like that and the other well educated and well traveled women not want to put their brains to use in an arguably more productive way toward society and choose to sell their bodies instead?

Maybe these women are just more frank and upfront about how some relationships involving sex works.  Arguably, what these women are doing is no different than women (or men for that matter) who date people solely for money and other material benefits.  Even in popular culture, there are some marriages that have taken place where money seems to be the only answer why a particular couple was together.   And, marrying for financial gain is a historical facet of the institution of marriage.  In those cases, however, the monetary transactions take place in a socially acceptable form of a relationship.   In any event, the fact that the woman profiled on the show made $5000 a week for 10 hours of work speaks volumes, though it may speak different things for different listeners.   But, just maybe it says that she’s smarter than many other women out there.

Dubner and Levitt’s next hypothesis argues that hormonal birth control led to truly talented women leaving the teaching profession thus leading to a decline in gifted teachers in this nation’s public school system.  First and foremost, correlation does not imply causation.  To be sure, the seven and a half minute segment didn’t really delve into the authors’ method s of reasoning and argumentation.  Thus, I’d be interested to see how they made that leap.  For the sake of argument, let’s say that they are right—that control over reproduction gave women more occupational choices and power.   How does it go from that to implicitly putting the blame on women for the failing public school system?  That’s a pretty big leap, I’d say.  Why not look at the affects of the pay these teachers receive, the environment in which some of them would have to teach had they not chosen other fields, or the affect of various federal government regulations that have left many educators frustrated?  Moreover, why not take into account the fact that men can be just as effective as teachers and that they aren’t courted as heavily into that profession. Like I said, without knowing their methodology, it’s kind of hard to argue against them.  But, from what was shown on 20/20, their reasoning is tenuous at best.

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.