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

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.

Chinyere Ezie, Columbia Law School class of 2010 is Editor-in-Chief of the Columbia Journal of Gender and Law and former President of Outlaws (the Lesbian/Gay/Bisexual/Transgender/Queer/Allied student organization at Columbia Law School), offers the following reflections on ongoing attempts to bring lbgt people within the protection of federal hate crimes legislation in light of the deeply racialized nature of U.S. policing and criminal policy:

Last weekend, as LGBT-rights activists gathered in D.C. for the National Equality March, news broke of a vicious gay bashing in New York City. Jack Price, a 49 year old Queens resident, was attacked while leaving a neighborhood deli-grocery. Price was pummeled until his jaw shattered, both his lungs collapsed, and every rib in his body was broken.  (He was admitted to the hospital last Friday in guarded condition. However, this weekend he emerged from a coma and doctors are hopeful that he will survive his injuries.)

Price’s five minute beating is captured in lurid detail by a surveillance video that quickly made its way around the web. Last Wednesday, after reading a few articles about the case during lunchhour, I suddenly found myself watching a clip of the horrific attack unfold. The first 30 seconds of tape show Price careening from one street corner to another, frantically trying to evade his attackers. Eventually, he hits the asphalt in a hail of blows— images so startling that I was moved to grief in my law school cafeteria— suddenly choking back warm tears.

In the next minute of footage, Price is seen lying in the road in the fetal position as punches and kicks continue to rain down. At one point, Price’s assailants are shown brazenly standing over his body as cars pass by— a scene which left me puzzling about Foucault’s theory of the panopticon and the indifference of strangers — wondering why all of “the eyes on the street” failed to keep both Jack Price & Kitty Genovese safe.

In the final minute of footage, Price is shown vainly trying to stand after his attackers retreat. Seeing him collapse over and over—eventually crawling the ten blocks home— triggered an unspeakable wave of anguish as well as a crisis of moral philosophy. After several years of carefully crafting a set of objections to hate crimes laws, suddenly, I found myself questioning if they might be of value – even when deployed in a flawed criminal justice system.

Surveying the writings of critical legal scholars reveals a profound ambivalence for our modern system of crime and punishment. Bafflement with the criminal justice system still holds with respect to “protective” legislation like hate crimes laws, where law plays the role of guardian and protector. As critical race theory explains, it is hard to seek protection in the laws when you hail from a community where overpolicing and police brutality are the fabric of daily life. Kimberlé Crenshaw orients readers to these issues in Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color. As she explains, immigrants and racial minorities who are survivors of domestic violence oftentimes (credibly) fear that availing state assistance will attract undesirable forms of state surveillance to their communities— jeopardizing   immigration statuses, for example,  fueling the fever-pace of arrests and incarceration— perpetuating marginalization and subordination in their home communities.

Hate crimes legislation is a unique flash point for these tensions: by using sentence enhancements as its means of condemning violence that targets racial and sexual minorities, hate crime laws strengthen the U.S. system of corrections despite its myriad flaws— e.g. disparate policing, prosecution and sentencing, the privatization and monetization of prisons, and the political disenfranchisement and social ostracization of those persons with time served.

Because of its failure to reckon with the flaws of the criminal justice system, hate crimes legislation often attracts vociferous criticism from those it is designed to protect. In recent years, I have been one such critic: well-briefed on the sociology of criminal justice, so to speak, I left my first-year Criminal Law course with serious doubts that rehabilitation, deterrence and retributivism justified our imprecise system of crime and punishment.

Yet, watching those three, anguished minutes of video brought about a reckoning of a more personal sort— and suddenly I found myself taking solace in the notion that hate crimes law are an expressive, normative force. This fourth justification for criminal law— what I would call a Lockean theory of the law— is one that law school textbooks largely neglect. Under this so-called Lockean view of criminal law, law can be viewed as an expression of community values— forming the basis of a social contract to which we all belong — not due to coercion, but by being members of a democratic polity.

If one accepts that law can serve as an expression of community values, being named in the law, in the case of hate crimes legislation, serves an objective quite apart from administering a system of penalties and punishments. Rather, when the law takes cognizance of people like Jack Price, Lateisha Green & Angela Zapata, it communicates, as the video surveillance footage manages all too well, that a breach of the social contract occurs when violence is breathlessly directed toward racial and sexual minorities, based solely on the fact that they are different.

Katherine Darmer is a is a Professor of Law at Chapman University and is also a Distinguished Senior Fellow in the Gender & Sexuality Law Program this fall.   She offers the following observations about on-going litigation challenging a California High School’s failure to protect LGBT students from homophobic threats and violence:

Earlier this year, the New York Times reported that California’s Corona del Mar High School in Orange County had become the latest to try to put a stop the high school production of RENT, which depicts both gay and straight characters in a sensitive light.

Under the direction of drama coach Ron Martin, who picked RENT precisely to sensitize the student body at a time when Martin was alarmed by an increasing climate of homophobia at the school, the show ultimately went forward at Cornoa del Mar and won numerous national awards and ongoing media coverage.  Before the production, several male athletes at the school targeted HAIL KETCHUM, who played a starring role in RENT, releasing a video on FACEBOOK depicting threats to rape and murder Ms Ketchum.  On the same video, the boys also made numerous homophobic comments.  The video was posted via the school’s Facebook “network” and viewed by hundreds of students, causing acute distress to Ketchum.  Following the video, Ms Ketchum’s parents’ complaints to the school went largely unheeded.  Indeed, the boys were given athletic awards in the wake of the video’s release.

The ACLU of Southern California ultimately brought suit against the school district and administrators for failing adequately to protect Ketchum from the young men’s threat of violence and for failing to adequately protect LGBT students at the schoool.  As the Facebook video illustrated, misogyny and homophobia are frequently linked.

The ACLU suit arose against the backdrop not only of the controversy surrounding RENT at the high school, but also in the wake of the Proposition 8 campaign, which emboldened some at the school to articulate homophobic views.

The suit was one of the first to bring attention to the “collateral damage” of Prop 8 and the heated Prop 8 campaign done to young students coming to terms with their sexuality.

This past Sunday’s New York Times magazine profiled LGBT students in middle schools, noting that homophobic language in schools is frequently tolerated by teachers in a way that racist speech never would be.  As the article pointed out, phrases such as “that’s so gay,” deployed in a derogatory, dismissive manner, are part of a common high school vocabularly despite the pain such statements cause to LGBT students.  This environment of insensitivity was in evidence at Corona del Mar High School in Orange County.

The suit in Orange County was recently concluded in a favorable settelement that required district officials to apologize to Ms Ketchum and further required that school administrators, teachers and students participate in mandtory training.  The training will deal not only with the harmful impact of discrimination based upon sex but also with the problem of discrimination based upon sexual orientation and gender identity.  Details of the settlement are contained in an ACLU press release, and were covered by the New York Times.

Ms Ketchum and her parents, who recently chose to be publicy identified, made clear that the suit was broght primarily to ensure that the overall school envirnoment would be improved for other students.  Ms Ketchum is now a freshman at Loyola Marymount University in California.

It is unfortunate that a lawsuit of this sort was needed as a “wake-up” call to a school district and its administrators charged with protecting all students.  But as the New York Times story on Sunday illustrated, the gains we have made in protecting LGBT rights leave us a long way from a school environment that is fully protective of sexual orientation minorities.

–Katherine Darmer
(Darmer is a board member and chair of the legal team of the Orange County Equality Coalition, which was a named plaintiff in the Orange County lawsuit.)

Iranian President Mahmoud Ahmadinejad is back in New York for the annual fall gathering of heads of state at the U.N. General Assembly meeting.  As expected, his remarks to the body on Wednesday provoked outrage, walkouts, and general condemnation by various states and the media.  If all you did was read the press reports about it, you’d think that in his speech he once again denied the fact of the holocaust and threatened to wipe Israel off the map.  In fact, if you watch the speech, or read it, it’s much less inflammatory than the media reported, and in some respects merely echoes the condemnation of Israel’s invasion of Gaza contained in the report issued by the UN Human Rights Council Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone.  It’s interesting how any criticism of Israel is read as anti-semetic in this setting.

I mention Ahmadinejad’s speech because it’s hard to believe it’s been two years since he came to Columbia University as part of our World Leaders Forum.  As you may recall, Columbia University President Lee Bollinger “introduced” President Ahmadinejad with an anticipatory condemnation of what the Iranian President might say, calling him “a petty and cruel dictator,” and closed with the charge that “I doubt that you will have the intellectual courage to answer these questions.”  The tone and content of the introduction drove some members of the University faculty to bring to the full arts and sciences faculty a motion criticizing Bollinger for violating core principles of academic freedom.  See more here.

What garnered the greatest attention from President Ahmadinejad’s talk, however, were his remarks in response to a question about the mis-treatment of women and homosexuals in Iran.  He declared: “women in Iran enjoy the highest levels of freedom,” and then asserted that “In Iran we don’t have homosexuals like you do in your country.  We do not have this phenomenon. I don’t know who’s told you that we have it.”  The media frenzy in response included a New Yorker Magazine cover tying the Iranian President to Larry Craig.

Lesbian and gay human rights organizations the world over immediately condemned these remarks as ignorant and hateful.  “Of course there are gay people in Iran – we are everywhere!” they proclaimed.   But Ahmadinejad’s remarks and the responses they received demand much more complex thinking about the role of lesbian and gay human rights in global politics.  For this reason I’ve written a short paper trying to offer one such thicker reading of what happened when President Ahmadinejad came to Columbia.   I’m giving it as part of our Feminist Theory Workshop series next Tuesday, and you can read the draft here.  But it concludes:

Once we recognize that the normative homosexuality that undergirds human rights discourse is not merely a “fact” in the world, but more of complex value, it becomes easier to see how the state’s embrace of the sexual citizenship of these new human rights holders risks rendering more vulnerable a range of identities and policies that have refused to conform to state endorsed normative homo- or hetero- sexuality.  This is true both for queers whose desires refuse to orient themselves ineluctably toward marriage, or Muslims with sexual norms and practices of polyamory, homosociality, and modesty.  Under this scenario, newly patriotized gay subjects find themselves implicated, whether they want to or not, in the construction and identification of the “enemies of the state.”   Witness the ingenious strategy of StandWithUs and the Israeli Foreign Ministry to appeal to gay rights supporters in their efforts to shore up Israel’s foreign policy with respect to Palestine and Iran.

So does this discussion leave us helpless in the face of a critique that eschews both the epistemic violence of securing human rights for global gay subjects on the one hand, and state politics as cynical, manipulative, instrumental and tragic on the other?  To be sure, this is where some find themselves.  But we can do better than that.  Critical awareness of the state’s role as now-fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

The moral atrophy that has kept us from recognizing the tragedy of these strategies and outcomes is where more critical, and indeed discomfiting, work needs to be done.  By theorists and activists alike.  This means rethinking the horizon of success in this work.  “Victory” in the sense of gaining the state as a partner, rather than an adversary, in the struggle to recognize and defend LGBT rights ought to set off a trip wire that ignites a new set of strategies and politics.  This must necessarily include a deliberate effort to counteract, if not sabotage, the pull of the state to muster rights-based movements into its larger governance projects, accompanied by an affirmative resistence to conceptions of citizenship that figure nationality by and through the creation of a constitutive other who resides in the state’s and human right’s outside.