Both during and after the City Bar Association panel I participated in a few weeks ago on the future of same sex marriage, I’ve gotten some push back for suggesting that we consider and evaluate the merits and risks of various constitutional arguments that have been made in the cases challenging the exclusion of same sex couples from the legal institution of marriage. At the panel, I commented that simply because a legal argument is available to us doesn’t mean we should make it. The availability of the argument merely inaugurates, rather than concludes the political discussion about why and how we should win the right to marry.

What does it mean to have an argument available and what arguments were available in the same sex marriage cases? Availability means that it has some level of plausibility – that there is some body of case law to which the advocates in the case can turn that can form a non-specious basis of having the marriage laws overturned. In the Hawaii case in 1993, for instance, the case was won on a sex discrimination argument – that barring same sex couples from marrying amounted to a form of sex discrimination in so far as the state’s marriage law allowed you to marry one, but not another, sex (men can only marry women, women can only marry men). Professor Andrew Koppelman¹ has been making this argument for years, and Professor Edward Stein², among others, has offered a sustained critique of Koppelman’s sex discrimination argument.

Most of the cases since then have stressed other arguments – Fundamental Right to Marry, Dignity and Equal Protection. The Fundamental Right argument asserts that there is a fundamental right for all people to marriage, and that the state better have a compelling, non-discriminatory reason for denying access to marriage licenses to same sex couples. I’ve blogged previously on my problems with this argument. The Dignity argument maintains that refusing to confer the blessings of civil marriage upon same sex couples confers a dignity harm upon them, by refusing to acknowledge that same sex unions are entitled to the same dignity and respect as different sex unions. I’ve blogged previously about my concerns with this argument as well. The Equal Protection argument, which won the day in Iowa, claims that an equality norm has been violated when the state discriminates on the basis of sexual orientation in access to marriage licenses. Read here for why I liked the Iowa Supreme Court’s equality argument.

Reasonable minds on the same side of an issue can disagree about the relative merits or dangers of pursuing any or all of these approaches to gaining marriage rights for same sex couples. Yet, as one audience member at the City Bar panel asked: “if we might win with the dignity argument, why shouldn’t we make it?”

Law reform litigation is not about winning at any cost. These cases are part of a larger set of political strategies that play a key role in a political movement. Each of these arguments, if successful, enable or extinguish subsequent political action in complex ways. The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community. The equality argument makes no claim about the virtues of the institution of marriage, but merely states that if the state is going to be in the marriage business it must be so fairly.

I find it odd that the lot of us who have sought to have a critical discussion about how to argue these cases are being branded as traitors and are met with hostility from some of the lawyers and activists in the marriage equality movement. This debate is healthy and politically necessary. In the early 1970s there was no unanimity as to whether reproductive rights in general, and abortion rights in particular, should be argued as a matter of sex equality, liberty, privacy, bodily integrity, decisional autonomy or dignity. Harry Blackmun was able to get 4 other votes for privacy in Roe v. Wade, but most agree today that privacy provided a fragile and unsatisfactory hook upon which to hang this important issue. Poor women have not been helped by privacy, and over time the privacy right for all women secured in Roe has been pretty porous.

Similarly, should we have won the Lawrence v. Texas sodomy law case on privacy, equal protection, liberty or fundamental rights grounds? What about a notion of sexual citizenship? Wouldn’t finding that sodomy laws violate a notion of sexual citizenship be a victory not only for sexually non-normative people such as lesbians and gay men, but also potentially shore up reproductive rights as well?

These are important arguments to keep having among all of us on the same team.

1. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994)
2. Edward Stein, Evaluating the Sex-Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001)

Khiara Bridges, the Center for Reproductive Rights – Columbia Law School Fellow, presented her paper for our last colloquium of the semester entitled “Capturing the Judiciary: Carhart and the Undue Burden Standard.”  Bridges explains the problematic assumptions and questionable logic behind the “undue burden” standard as promulgated by the U.S. Supreme Court in Carhart.  While the overarching question remained whether the state legislation “unduly burdened” the abortion right as located by Roe v. Wade, the Court in Carhart found both that the state had a legitimate interest in “protecting the life of the fetus that may become a child,” and that the state had not unduly burdened the abortion right because the law “express[ed] respect for the dignity of human life.”  Thus, the state’s action would have to pose a substantial obstacle to the abortion right for it to be considered unconstitutional.    

Bridges questioned the specific meaning of “human life” as articulated, implicitly, by the Court, and delineated two definitions: a biological, protozaic “life,” or a “life” that “demands an emotional response” and “our profound respect,” and upon termination, “invokes grief, anguish, [and] sorrow.”  The Court adheres to the latter understanding of “life.”  Bridges calls this the morally weighted life, and she shows how this notion of “life” has been embedded by the Court into the standard, perverting the task it was supposed to do, and in a sense, stacking the deck for future courts who must make a decision using the undue burden standard. 

Bridges advocates for a morally agnostic undue burden standard, one in which the moral status of the fetus is not known and not definitively answered for the woman contemplating abortion.  The standard should not be committed to a particular view of the fetus; the state should foster a moral pluralism which allows for any number of answers to the question whether a fetus constitutes a “life.”  Courts would then ask whether the state’s action refrains from imposing upon a woman the state’s conception of fetal life, or whether it clears a space for contemplation of the moral status of the fetus.  She outlines a methodology for exercising the morally agnostic undue burden standard, looking at both the purpose and effect of the state’s regulation, and ultimately asking whether the legislation has succeeded in maintaining a morally pluralistic space. 

Professor Ariela Dubler gave great feedback, emphasizing the strengths of the paper, especially in Bridges’ intuitive ability to anticipate counterarguments and grapple with the weakness of the Carhart standard, and asked both methodological and political/doctrinal questions, searching for ways that the morally agnostic undue burden standard could move the discussion away from a stark pro-choice vs. pro-life perspective.  Bridges responded by clarifying that the morally agnostic undue burden standard should provide a liminal space between these two extremes, so long as the state refrains from giving one message (usually a pro-life message), but instead allows for a plurality of messages; one gets to this point through an understanding of the “undue burden” standard as morally agnostic, or neutral.   

Bridges paper is extremely creative and provocative.  It pushed me to consider whether morality has a place at all in the law, and if so, where it does and why.  Courts are often confounded when confronted with a clash between rights and values – should values be taken into consideration, should they be given legitimacy, even if they directly contradict one another? Scholars and advocates alike have struggled to find a system or methodology that can lead courts to decisions that reconcile these clashes.  Bridges has provided us with one insightful way to think about this within the context of reproductive rights and the undue burden standard.    

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.  

The National ACLU and its New York affiliate announced this week a change in policy by the New York State National Guard that it will no longer administer mandatory pregnancy tests to female Guard members and will not automatically dismiss female members of the New York Guard when they become pregnant, rather they will be treated like male guards who have temporary disabilities.  This brings New York National Guard policy into conformance with federal and state pregnancy discrimination laws.

If only the Department of Defense would abandon it’s “heterosexuality test” for federal military service!

The ACLU describes the policy reform thus:

Under a new policy announced today, women in the New York National Guard serving on a state active duty task force will no longer be required to take mandatory pregnancy tests or face dismissal from the force if they become pregnant. Instead, they will be treated the same as men who become injured or disabled during a state active duty mission. The change occurred in response to objections raised by the American Civil Liberties Union and the New York Civil Liberties Union, the ACLU’s New York State affiliate.

Soldiers in the New York National Guard had alerted the ACLU about a discriminatory policy requiring women in active duty positions to take periodic pregnancy tests and to periodically sign a form agreeing that becoming pregnant would end their assignments and cancel all associated health benefits, including health benefits for their families. In contrast, male National Guard soldiers on state active duty whose spouses became pregnant were not fired and their families retained health benefits.

“I hope this change will enable women to come forward if they feel they are being discriminated against. Many soldiers were against this policy of pregnancy testing but feared they would lose their jobs if they spoke up,” said Tammy Sullivan, a soldier in the New York National Guard. “The new policy is a step in the right direction to protecting a woman’s right to privacy and ending discrimination against women in the military.”

The ACLU and NYCLU brought their concerns to Governor David A. Paterson’s administration, which resulted in discussions that culminated with this new policy.

“It’s blatantly unfair to dismiss women from National Guard state active duty missions if they are pregnant or refuse to sign a form agreeing to be kicked off a mission if they become pregnant,” said Ariela Migdal, staff attorney with the ACLU Women’s Rights Project. “We are pleased that state officials looked into this discriminatory practice as soon as it was brought to their attention and took swift steps to change the policy.”

Under the new policy, being pregnant no longer automatically disqualifies soldiers from state active duty service, pregnancy tests are not required and women soldiers do not have to sign a special form. The policy now simply requires all soldiers to sign a form indicating their understanding that in order to remain on a state active duty mission they must be physically able to perform all tasks associated with their mission, including physical training drills.

However, under the new policy, pregnant soldiers will be dismissed from state active duty when their pregnancy advances to the point that they cannot physically perform the mission. No alternative assignments, like desk jobs, are available.

“While we are pleased that this blatant discrimination has been addressed, the new policy will still have a disparate impact on women soldiers who will eventually become unable to serve if they become pregnant,” said Galen Sherwin, Director of the Reproductive Rights Project at the NYCLU. “No one who is willing and able to contribute to missions of such vital importance should be dismissed and have their health benefits cut simply because they are unable to perform certain tasks due to injury or pregnancy.”

The old New York National Guard “Statement of Understanding: Pregnancy” can be found online at:
www.aclu.org/womensrights/employ/38935lgl20090304.html

The revised form, “Statement of Understanding of Conditions of Assignment,” can be found online at:
www.aclu.org/womensrights/employ/38934lgl20090223.html

A podcast interview with Tammy Sullivan can be found online at:
www.aclu.org/multimedia/audio/38951res20090306.html.

- Katherine Franke