Call for Submissions for TSQ: Transgender Studies Quarterly 2.1 (2015)


Posted on July 8th, 2013 by Lauren Gutterman

“Making Transgender Count”

As a relatively new social category, the very notion of a “transgender population” poses numerous intellectual, political, and technical challenges. Who gets to define what transgender is, or who is transgender?  How are trans people counted—and by whom and for whom are they enumerated? Why is counting transgender members of a population seen as making that population’s government accountable to those individuals? What is at stake in “making transgender count”—and how might this process vary in different national, linguistic, or cultural contexts?

This issue of TSQ seeks to present a range of approaches to these challenges—everything from analyses that generate more effective and inclusive ways to measure and count gender identity and/or transgender persons, to critical perspectives on quantitative methodologies and the politics of what Ian Hacking has called “making up people.”

In many countries, large-scale national health surveys provide data that policy-makers rely on to monitor the health of the populations they oversee, and to make decisions about the allocation of resources to particular groups and regions—yet transgender people remain invisible in most such data collection projects. When administrative gender is conceived as a male/female binary determined by the sex assigned at birth, the structure, and very existence, of trans sub populations can be invisibilized by government data collection efforts. Without the routine and standardized collection of information about transgender populations, some advocates contend, transgender people will not “count” when government agencies make decisions about the health, safety and public welfare of the population. But even as more agencies become more open to surveying transgender populations, experts and professionals are not yet of one mind as to what constitutes “best practices” for sampling methods that will accurately capture respondents’ gender identity/expression, and the diversity of transgender communities. In still other quarters, debates rage about the ethics of counting trans people in the first place.

We invite proposals for scholarly essays that tackle transgender inclusion and/or gender identity/expression measurement and sampling methods in population studies, demography, epidemiology, and other social sciences. We also invite submissions that critically engage with the project of categorizing and counting “trans” populations.

Potential topics might include:

* best practices and strategies for transgender inclusion and sampling in quantitative research;
* critical reflections on past, current, and future data collection efforts;
* the potential effects of epidemiological research on health and other disparities in trans communities;
* who counts/gets counted and who does not: occlusions of disability, race, ethnicity, class, gender in  quantitative research on trans communities;
* the tension between the contextually specific meaning of transgender identities and the generality and fixity that data collection requires of its constructs and social categories;
*implications of linguistic, geographical, and cultural diversity in definitions of transgender and the limits of its applicability;
* critical engagements with of the biopolitics of enumerating the population.

Please send full length article submissions by December 31, 2013 to   tsqjournal@gmail.com along with a brief bio including name, postal address, and any institutional affiliation. Illustrations, figures and tables should be included with the submission.

The guest editors for this issue are Jody Herman (Williams Institute, UCLA School of Law), Emilia Lombardi (Baldwin Wallace University), Sari L. Reisner (Harvard School of Public Health), Ben Singer (Vanderbilt University), and Hale Thompson (University of Illinois at Chicago). Any questions should be sent to the guest editors at tsqjournal@gmail.com.

TSQ: Transgender Studies Quarterly is a new journal, edited by Paisley Currah and Susan Stryker to be published by Duke University Press. TSQ aims to be the journal of record for the interdisciplinary field of transgender studies and to promote the widest possible range of perspectives on transgender phenomena broadly defined. Every issue of TSQ will be a specially themed issue that also contains regularly recurring features such as reviews, interviews, and opinion pieces. To learn more about the journal and see calls for papers for future special issues, visit  http://lgbt.arizona.edu/tsq-main.   For information about subscriptions, visit  http://www.dukeupress.edu/Catalog/ViewProduct.php?productid=45648.

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FRANK Book Pic MediumFrom Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published on New Republic on June 28th:

For those who don’t follow every twist and turn of the gay rights battle, the Supreme Court’s invalidation of two major gay-marriage bans—the federal Defense of Marriage Act and California’s Prop 8—may seem like the final victory for gay equality. Even some gay people seem to think the end is nigh, in part because the full legal impact of DOMA’s demise is not yet clear. Can those living in a state without gay marriage, for instance, hold a wedding in a friendly state and thus secure newly won federal benefits?

But a movement that, for understandable reasons, has come to be associated almost wholly with the fight for marriage equality now has a lot of private soul-searching and public dialoguing ahead. To avoid the risk of stalling, becoming irrelevant, or leaving many of its own, most vulnerable people behind, the LGBT movement must come to grips with the full nature of its challenges and the genuine diversity of its constituents and allies.

Planning for the future, of course, has already begun. The Los Angeles Times reported this week that gay-rights groups have announced a 5-year plan to win marriage equality in the remaining 37 states that still bar gay marriage. Lest folks think the Supreme Court’s work here is done, the strategy does not involve winning gay marriage in Alabama and Mississippi any time soon. Instead, it means winning enough states—through public education, lobbying, and litigation—to go back to the Supreme Court in a climate more ripe for a 50-state ruling.

Freedom to Marry’s Evan Wolfson, a chief strategist of the marriage equality movement, speaks often of achieving a “critical mass” of states that allow same-sex marriage, which would make it easier in the future for the Supreme Court to strike down bans in the remaining states. This was the history lesson from Loving v. Virginia, the aptly named 1967 decision ending bans on interracial marriage. By that year, 34 states had ended their own bans, giving the justices a more solid argument for striking down bans in the remaining 16.

Expect, then, to see the LGBT movement use the same strategy that began to yield fruit in the 2012 elections. After decades of focusing on the rights and benefits of equality, gay advocates began to realize—with the help of enormous investments in research—that these messages were turning straight people off. Rights and benefits didn’t resonate with them as the reason they themselves valued marriage. Instead, love, commitment, and responsibility were the watchwords that worked. And by 2012, the year the first sitting president personally endorsed same-sex marriage, three states chose for the first time to legalize gay marriage by ballot vote—after a 30-state losing streak.

In this sense, so long as funders, advocates and allies don’t lose interest, we know what works. Gay groups have become far more sophisticated and coordinated in just the last five years, and the roadmap to full marriage equality seems clear, using this blend of state work (Illinois, New Jersey, Oregon, Nevada and Hawaii appear to be the next batch of low-hanging fruit) and litigation. And the most anti-gay states don’t need to change their tune in order to end marriage discrimination nationwide—the courts are likely to do that (assuming they don’t somehow swing wildly right) just as soon as a bunch more states and a bunch more hearts are won.

Therein lies a strategic and ethical challenge. It’s true that little investment in Alabama or Mississippi is needed to reach full marriage equality in, say, five to ten years. But marriage isn’t everything. And more to the point, Alabama and Mississippi have gay people who need protections and deserve equality just as those in coastal states and big cities do. The risk is that these folks will be left behind. Plus, the LGBT civil rights movement has a unique challenge that the black civil rights movement did not share: Queer kids generally grow up in straight families. In hostile states and communities, these kids can suffer for much of their lives under parents who find their own kids disgusting and unworthy of equal treatment.

That’s a powerful argument for both investing in anti-gay states and in tailoring that work to changing hearts and minds, not just laws. This work too, has begun. A new report from the Building Movement Project on the “Future of the LGBT Movement” surveyed dozens of LGBT and ally organizations and conducted 30 hours of interviews to help determine the future of the movement. The report identified a “tension between [the LGBT movement’s] current priorities and its future direction,” finding that, while its focus on marriage and military access was a helpful tool for building understanding and acceptance, those issues were ultimately limiting. “The broader public has found marriage, with its symbolic and systemic advantages, a pro-gay policy agenda they can support,” says the report. “However, marriage has also become so identified as the movement, especially for non-LGBT allies, that it threatens to leave out other crucial issues that would ensure full acceptance and just treatment of all LGBT people.” The report concludes there is a “growing disparity in capacity, leadership, and bench strength between groups and regions based on location, activities, and focus of the work” and that “the LGBT movement will need to develop and invest in a broader vision”—including building organizational capacity “beyond the coasts”—“that supports the aspirations of a larger number of individuals and organizations to once again make what seems impossible, possible.”

At a time like this, when LGBT people have so much to celebrate, it’s imperative to remember just how broad the movement is and how diverse the population, and its needs, really are. For too long the public face of the movement has been white men from blue states. Complacency around HIV/AIDS is growing as medical research makes leaps and bounds, with infection rates among young gay and bisexual African American menprojected to reach 50 percent within a decade. In general, despite dramatic jumps in public approval of homosexuality, opposition to equality and even hatred of LGBT people remain major problems. Although 51 percent of Americans back gay marriage, a recent poll found that even young people are nearly split on whether same-sex relations are morally acceptable (48 percent say yes, 44 percent no).

This may help explain why, by some estimates, up to 70 percent of those who’ve engaged in homosexual activity remain closeted about it. And the failure of Congress or President Obama to push through job-protection measures makes this situation needlessly worse: How can people come out if they fear losing not just their loved ones, but their livelihood, too? For transgender Americans, who are just beginning to get the respect they deserve, discrimination and mistreatment are a daily challenge, and their rates of depression and related ailments are higher than the already high rates for gays and lesbians.

Finally, much of my current research focuses on the unconscious element of anti-gay sentiment. Undoubtably, much ongoing homophobia exists in the form of bias that’s not always reflected in people’s policy positions. They may support gay marriage in principle, and may vote for the candidate or ballot initiative accordingly; but they may still feel disgust or fear around gay people, and treat them accordingly—from hiring decisions to how they express love for a homosexual son or daughter.

If a lot of the problem is going on in the unconscious regions of our brain, the work for full equality must move well beyond same-sex marriage and even beyond policy work. It must come to terms with what the African American equality movement began to learn after the 1960s civil rights bills were finally passed: legal equality is only half the battle.

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FRANK Book Pic MediumFrom Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published on Slate on June 27th:

On the very day the high court struck down the Defense of Marriage Act, Slate’s Hanna Rosin penned this buzz kill: “The Dirty Little Secret: Most Gay Couples Aren’t Monogamous.”

There’s a lot to admire about this instinct to rain on the gay parade: I myself am constitutionally predisposed to look for what we haven’t achieved on days when others are popping champagne to celebrate what we have. (I grappled with this personality flawin a recent piece on what marriage means to me, where I committed myself to celebrating a potential DOMA victory “fully and without reservation”—and I proposed to my boyfriend in the same piece, so maybe I’m a little sore at Rosin for crashing the party.)

Then there’s the fact that her heart was in the right place. She wasn’t pointing out gay promiscuity to argue against our right to marry but to weigh a question many gay advocates who value the unique quality of queer culture have raised: How might gay marriage not simply succumb to the trappings of existing marriage but improve the hoary and besieged institution with fresh models of partnership and intimacy?

But whatever Rosin’s intentions, we need to set a few things, well, straight. Rosin asserts that “most gay couples aren’t monogamous.” For evidence, she cites a recent Atlanticarticle about what America can learn from gay couples, a controversial personal critique of monogamy by the sex columnist Dan Savage, and a Gawker story that cites a study finding that half of gay couples are not monogamous.

None of these sources show that “most gay couples aren’t monogamous.” The research cited in the Atlantic story is based on decades-old statistics from the counterculture, before AIDS and before the LGBT movement began to valorize committed relationships like marriage as a top priority. And before gays could marry anywhere in the world.

The Gawker story is no better. The study it cites draws on couples from a “convenience” sample found by posting flyers in AIDS clinics and gay bars in San Francisco. Now, there’s nothing wrong with using convenience samples. When they’re the best available, they can still provide worthwhile knowledge. (I have drawn on them helpfully in research on gay soldiering and parenting and defend their proper use here.) But lesson No. 1 in statistics is that if your sampling pool is not representative, you can’t generalize to the population. All this study shows is that about half of one very specific gay male population—not the entire gay population—is not monogamous. And what we know of this population from the study itself is that it’s highly skewed. They had far higher rates of HIV/AIDS than the general LGBT population, some of the relationships were as short as three months long, and most important they were all men.

This is key: As the Atlantic piece points out, lesbians were far less likely to report nonmonogamous relationships than straight women, a result consistent with longstanding theories that the greatest predictor of promiscuity is being male, not whether you are gay or straight. “Most gay couples” may be meant to refer to men, but to many, it encompasses all gay couples. This further undercuts Rosin’s headline since it’s wholly inapplicable to gay women.

Finally, Rosin provides no control group. Building a piece around the provocative argument that most gay couples aren’t monogamous (and on gay marriage decision day!) clearly implies a significant difference from what we assume about straight couples. And calling it a “dirty little secret,” if meant literally (which I’m guessing Rosin did not), sure makes it sound like a shameful difference.

But how different are gay and straight couples? Probably different but not that different. Data on straight monogamy are all over the map. One report suggests 70 percent of married men cheat. (OK, that was a Fox News report, but shouldn’t that skew toward idealizing heterosexuality?) A nationally representative survey of 884 men put the number at only 23 percent. A much bigger but unrepresentative MSNBC survey found that nearly half of adults cheat—exactly the same percentage as the San Francisco study found with gay men. Other reports have found the same—that 50 percent of married men cheat—and one also found that the vast majority will not admit to it, perhaps even on surveys. This is another critical point: The gay male culture of nonmonogamy, rooted in gay liberation (and again, not all gay men are part of it), is likely to encourage both nonmonogamy and honest reporting of it, a key difference from the norms and expectations of the heterosexual mainstream. How much stock, that is, should we even put in surveys of straight cheating?

Of course, legal gay marriage might provide the cultural and legal encouragement for monogamy that the gay community has been missing. This is another reason that looking at stats of gay couples before they could marry is an unfair comparison to straight couples who can: As Andrew Sullivan has long argued, if gay male couples are—or historically have been—somewhat more promiscuous, the missing societal support for monogamy could be an important reason why. As could the fact that they are men.

“In some far off ideal world,” Rosin allows with a raised eyebrow, the openness of gay culture may “infect the straight world” and help cure heterosexuals of “boring monogamous sex.” Maybe. Champions of gay liberation have principled reasons why they endorse sexual generosity. Not all gay people agree. But what many recognize, along with a growing number of appreciative straight people, is that the challenges that gay life has leveled at our culture’s stodgy and outdated norms can be healthy and positive for everyone. We don’t just have to conform to what exists in order to gain equal dignity, and in clamoring for a place at the table, the changes we prompt can be good ones.

Rosin suggests the gay movement is showcasing straight-acting gay couples to win marriage equality while “no one wants to talk about” the reality that “they don’t necessarily represent the norm.” Her own claims about what the norm is are off. But more to the point, one of the lasting contributions of the LGBT movement, I hope, is to question the role of norms, to reject those that don’t make sense, uphold ones that work, and help create new and even better ones for us all.

What’s Next for the LGBT Movement?


Posted on June 28th, 2013 by Lauren Gutterman

From Urvashi Vaid, Lisa Duggan, Tamara Metz and Amber Hollibaugh, originally published in The Nation on June 27th, 2013.

Be Transformative, Not Transfixed!

Urvashi Vaid is the director of the Engaging Tradition Project at the Center for Gender and Sexuality Law at Columbia Law School and the author, most recently, of Irresistible Revolution: Confronting Race, Class and the Assumptions of LGBT Politics.

The Lethe-soaked question of what comes after the marriage cases ignores the reality that lesbian, gay, bisexual and transgender (LGBT) people’s lives are not yet free, equal or secure, even with the positive outcome of these Supreme Court decisions.

Here’s a SWOT (strengths, weaknesses, opportunities and threats) analysis of the LGBT movement in the US; and from that, a possible blueprint for the work ahead.

Strengths: A compassionate and mobilized base of millions of LGBT people, their families and friends, most of whom vote progressive, some who volunteer, fewer who give and all who support equality and justice. Young people’s attitudes trend strongly for equality. Legal and social service groups are brilliant and innovative. A vibrant infrastructure of grassroots groups is active on issues regarding trans people, people of color (POC), youths, seniors, immigrants, criminal justice and HIV/AIDS.

Weaknesses: The queer movement is focused on formal legal gay/lesbian equality only and still does not address the economic, racial and gender-based inequities affecting low-income LGBT folks, transgender people, people of color (POC), women and others in queer communities. Large parts of the US (the South, Midwest and Southwest) are zones without rights. Very few people actually give time or money to queer organizations and LGBT advocacy groups; this over-weights the influence of a few funders. Mainstream parties “handle” rather than support us—the Democrats see us an ATM; the Republicans, as a punching bag. LBT women’s issues are absent from the mainstream movement’s agenda. The leadership of the queer movement is aging, and there’s still not enough investment in young leaders and POC leaders.

Opportunities: Twenty-nine states with no LGBT rights protections are exciting sites for new work. A global movement is active and creative on sexual orientation and gender identity issues. Investment in young queer leaders and emerging institutions presents exciting chances to build a politics that is not single issue. Immigrant rights and trans organizing provide solutions for how to address the interaction of sexuality, gender, race and poverty. Opportunity exists to solidify an electoral coalition of youth, women, Latinos, African-Americans, progressive men, labor, environmentalists and LGBT people into a progressive voting bloc for the next five decades. Faith-based organizing in every denomination creates great leaders, new frames and a base of support. Social media is a queer space of organizing and movement building.

Threats: The religious, cultural, economic and political right that targets LGBT people, women’s economic, reproductive and sexual freedom and is organized around a racialized notion of national culture. A religious liberty framework is being deployed to undermine all civil rights laws. Social policy retrenchment as economic conditions worsen hurts millions of our people, and requires stronger alliances to forestall. Like what happened with abortion rights, the demobilization of donors and volunteers post-marriage is a risk. Over-criminalization, the national security state and over-policing harm the lives of many in LGBT communities (trans, immigrant, POC, sex workers, youth, HIV+ people, urban-based).

So what should we do now? First, reframe the LGBT political and legal agenda to positively address the life chances and lived experience of every queer person. Second, build infrastructure, coalitions and political strategy to advance LGBT people’s interests in the Southern and Midwestern US. Third, create a political strategy with allies (labor, POC, women) to win and secure progressive outcomes in key states over the next two decades. Fourth, put massive amounts of funds into developing the leadership of young progressives—queer and straight. Fifth, create a specific anti-fascist infrastructure of social media, legal, research and watchdog groups to expose and defeat the right wing culturally and politically.

In sum, the work ahead for queers is to be transformative, not transfixed.

Beyond Formal Equality

Lisa Duggan is a professor of social and cultural analysis at New York University.

Confused? Spinning around from outrage to glee to WTF? Progressive Supreme Court watchers have good reason to be perplexed. During the past few days we have been stunned, if not surprised, by the stream of awful decisions flowing forth from SCOTUS including the erosion of the right to remain to silent, a further weakening of affirmative action and the evisceration of the Voting Rights Act. Then we greet two happier decisions eroding legal discrimination against same-sex couples in the DOMA and Proposition 8 cases. What’s going on?

It’s tempting to chalk up these split decisions to a divided court in general, and the quirks of one Justice Anthony Kennedy in particular, or to understand these results as the uneven ups and downs of overlapping social movements. Neither of these assessments is wrong. But there is a broader context that we must consider if we want to create a broad and effective movement for social and economic justice.

Since the 1980s, US public policy has moved in a more or less coherent direction—toward the deregulation of corporations, the privatization of social welfare, the strengthening of the security and surveillance functions of the state. While maintaining the formal legal equality won by social movements during the 1960s and ’70s, policy-makers have undercut the substantive, though limited, redistribution of political and economic power accomplished in the US since the 1930s. For instance, rather than continue affirmative steps to democratize public education from pre-school through college, governments at all levels have eroded access in myriad ways, by raising tuition, narrowing curricula and privatizing schools. We still have a public education system open to all, but the experience of schooling is increasingly unequal across divides of race and class. We are barely maintaining the basic right to early-term abortion, but this and other reproductive rights are also increasingly eroding via differential access to reproductive healthcare.

This is the context within which to grasp the logic of the recent Supreme Court decisions. The undermining of affirmative action and the frontal attack on voting rights are based on the formal legal neutrality of supposedly color-blind policy. Such formal equality leaves the history of racism and the current reality of persistent wide racial disparities out of the frame. The decisions on DOMA and California’s Proposition 8 move haltingly toward very limited formal legal equality for same-sex conjugal couples. Marital privilege in general is maintained. Myriad historical and current sources of queer social and economic misery are not addressed—homeless queer youth, elder poverty and isolation, transgender healthcare. Looked at this way, this stream of decisions is basically consistent despite the flip-flopping role of Justice Kennedy.

The implications for the future of LGBT social movements are clear. Sure, when legal inequalities are eroded (the two same-sex marriage cases did not fully eliminate formal inequality) there is cause for celebration. But the history of civil rights struggles in the United States shows us that formal legal equality does not provide more resources, greater political power or better lives. Too often, legal equality is an empty shell that hides expanded substantive inequalities. To move forward toward a better world for queers we need to form broad alliances for the achievement of real social justice: Get money out of politics, fight for universal social benefits (healthcare, child care, retirement) not tied to marriage or employers, expand the power of working people, demand government transparency, go to the root causes of persistent racial inequalities, endorse sexual and gender freedom. Queer people are affected by all of these issues, not only the last ones. We can’t be the mostly single-issue movement that our major organizations have been. We don’t lead single-issue lives.

What’s Next? Disestablish Marriage!

Tamara Metz is an associate professor of political science and humanities at Reed College and the author of Untying the Knot.

With the Supreme Court’s rulings yesterday, my sister, Naomi, and her wife, Jennifer, celebrated their fourth wedding—to each other—in a decade. The first was in the backyard; second, at City Hall in San Francisco; third, in a California county clerk’s office; and now, in the eyes of the federal government. Finally!

The rulings mark a real victory for justice. As long as the government doles out marital status and uses it to distribute benefits and privileges, our commitment to freedom and equality demand that marriage be available to same-sex couples. Full stop.

What next? Disestablish marriage. Get the state out of the business. Abolish the legal category.

Even as we savor the victory for civil equality this week, we should start to push for disestablishing marriage. Freedom, equality, and the health of our liberal democratic polity depend on it.

Liberty would benefit in at least two ways.

First, we all know the “‘m’ word” matters. “Civil union” distinguishes. But “marriage” carries with it the weight of eons of different cultures’ meanings. This history gives the label supersized ethical authority. So when a country clerk confers “marriage,” she’s participating in a practice aimed at changing the self-understanding of the couple and the conferring community. Like it or not, the weight of the tradition makes her more priest than government bureaucrat. But wielding this kind of ethical authority, in conferring state approval to a particular kind of relationship, she crosses a line that liberals have long seen as essential to protecting freedoms of thought and conscience. Getting the state out of marriage would benefit these liberties in ways that people on both sides of the same-sex marriage debate should appreciate.

Second, in American constitutional tradition, marriage has long served to justify protecting the freedom of intimate association. Our rights to be left alone in our reproductive and sexual lives are rooted here. But all sorts of intimate relationships need this protection. Get rid of marriage as the proxy for deserving relationships, and those who are not married—fast becoming the majority—benefit.

Disestablishing marriage wouldn’t mean an end to marriage. Au contraire! It would help marriage and by extension all who gain from its special—moral—powers. The state is, or should be, a legal, not an ethical authority. When it serves as the controlling authority in marriage, with its awkward hold on the ethical side of the institution, actually threatens to undermine the institution’s moral sway. Get the state out of the business, and let couples (and groups, for that matter) marry under the auspices of what are for them real ethical authorities. In these hands—of their church, their family, their urban tribe, their garden club—the power of the status to transform would be invigorated. Imagine state-sanctioned bar mitzvahs. Oy!

Does the argument for abolishing marriage imply that the state should get out of our intimate lives altogether? No. Leaving marriage to civil society is no different from leaving the control of baptism to the church. In neither case do we assume that the state thereby withdraws from its role in protecting the vulnerable and promoting equality. What we do assume is that the best way to secure liberty and equality in a diverse society is for the state to be concerned with regulating action, not expression or thought. And when it does step in, it should be only to the extent necessary to protect other citizens from harm, or to guarantee a reasonably fair distribution of the benefits and burdens of social cooperation.

So, even if the state no longer participates in marriage, it still has an important role to play in supporting intimate caregiving relationships, a k a families very broadly defined (i.e., from Golden Girls mates to traditional marital units). None of us can survive without the physical, emotional and social attention of others. And intimate care, the unpaid sort paradigmatically exchanged in families, is uniquely consonant with human particularity and dignity. The catch: while it is essential and mutually enriching, intimate care is also risky—especially in our globalized, capitalist context. In instrumental terms: by using her fixed resources—time, money, paid or unpaid leave from work—on others without guarantee of return, the caregiver reduces her ability to protect herself against the normal vagaries of life and thus increases her vulnerability to them. Such is the risk of caregiving. Any society that wants this labor to be done well and its benefits and burdens distributed justly needs to offer some insurance against this risk. In the United States, state-sanctioned marriage is central to our insurance scheme.

But this arrangement conflicts with our commitment to liberty, equality and even the health of marriage itself.

So let’s get rid of marriage and create an intimate union status expressly tailored to protecting intimate care in its various forms. This would shift the focus of public discussion from interminable disagreement about the definition of marriage to questions about the importance, nature and distribution of intimate care. Exposing the real costs and benefits of caregiving would increase the likelihood that our policies would address the real needs of all families. Disparate levels of support for civil union and same sex marriage suggest that when we disentangle support for families from marriage we have an easier time doing the right thing by our fellow citizens. These changes would be good for families, good for diversity, good for gender equality and thus good for liberal democratic politics.

So, congratulations newly reweds! When you’re finished celebrating, let’s keep working for a more perfect union and get the state out of marriage.

After Marriage—What?

Amber Hollibaugh is the executive director of Queers for Economic Justice.

Gay marriage is a done deal. It’s only a question of how many barriers remain and how long it will take to have gay and lesbian marriages legally recognized in the United States. I don’t mean that the ramifications of these decisions aren’t significant, or that any homophobic discrimination is okay. It’s not. But the struggle of these last fifteen years has already transformed this country’s understanding of homosexuality; the two Supreme Court decisions come on the heels of that extraordinary sea change.

But I remain as troubled as I have been throughout all the years of this battle for gay marriage. I keep asking, Is this the issue that truly captures who we are and what we most deeply need?

If we win marriage, will this give us a victory that impacts us as profoundly as the oppression we experience? Will marriage make us equal? Will marriage make us normal? Do we want to be normal? Does the right to marry capture our vision and the priorities we believe are the heartbeat of the ongoing fight for LGBTQ justice and inclusion?

To me, it doesn’t.

Every day I work to make queer poverty and economic inequality visible, to shed light on the reality of LGBTQ economic struggles, to make who we are as queer people evident and seen—in all of our class and race and gendered complexity. I work to reverse the bitter myth that we are mostly guys, mostly wealthy, mostly white. We aren’t. I have never fought to be normal. And I am not trying to create an equality movement in a world driven by profit margins and global human desperation.

We need to build a queer, radical, social justice movement that focuses on the differences in how we live our sexual orientations and gendered identities when we are poor and queer and working class and in communities of color. A movement that assumes this is who the majority of us are; and this determines our political agenda.

I want a LGBTQ movement that queers the reality of Walmart line jobs, sex work and homeless shelters. That centers our worldview on queer economic survival. That recognizes LGBTQ lives shaped by capitalism and the ways in which that twists and forms our erotic expression and desire—as we try to survive.

These are the issues that drive a majority of the LGBTQ community, in my life: a majority rarely seen—and rarely asked to anyone’s table.

So, first, I think we need to build an agenda that isn’t practical. An agenda based on vision.

Vision isn’t practical. Vision is fueled by the dreams we bring to our aspirations. Vision drives the urgency and passion behind those everyday steps we take in our fight for justice; it is the yet-to-be-feasible idea; it is the bold leap of heart and intellect into an unknown future. It is our stubborn refusal to give up the possibility of living in a world where human beings may dwell without penalty or punishment, without paying a horrible price for what they are and who they love.

Our answers to these questions will tell us much about the substance of our vision. They will tell us whether we have decided to put up a careful fight in a small world with a narrow plan designed to achieve a limited success, or whether we have decided to go for broke. I am building a movement that asks us to go for broke.

What if we said that no one, not a single one of us, would get traded for socioeconomic access or the achievement of short-term legal goals? What if we began to really talk queer—beyond identity categories? What if we decided to build and lead a movement to transform this nation—a movement to make this country a global partner instead of a bully? What if we began to help build hope?

What if we said to everyone: here is what this queer movement is doing next:

We are queering Living Wages and Affordable Healthcare and Transgender Justice and Getting Old Queerly and Total Immigration Access and HIV Activism and Ending Incarceration and the Possibility of Dangerous Sexual Desires.

We need to create a movement that says: Join us. Dream with us. Dare with us. Go for broke. Change the world.

What if that was our queer vision, for what we do next?

FRANK Book Pic MediumFrom Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published on Slate on June 26th:

There’s no question that today’s decision striking down the Defense of Marriage Act on equal protection grounds is sweeping and historic. There is a unique feature of the 40-year gay marriage debate that makes the question of history and historical evolution particularly important: Unlike racial segregation, to which anti-gay laws are often compared, the traditional restriction of marriage to opposite-sex couples was not designed, in and of itself, to denigrate or harm same-sex couples. No matter how angry pro-gay advocates may rightly feel toward those who oppose our equality, it seems fair, at first blush, to concede that restricting marriage to straights was not exactly a malicious or irrational act based on nothing but animus against gay people. But none of that means DOMA was constitutional. Whatever the dissenters may say, each generation should interpret the meaning of a law as it applies in that generation’s own time.

Charles Cooper’s strategy in defending Prop 8 (which was dismissed today for lack of standing) was simply to claim that that 2008 gay marriage ban could only be found unconstitutional if “no rational, thoughtful person of goodwill could possibly disagree with [the plaintiffs] in good faith on this agonizingly difficult issue.” Citing the Supreme Court’s unanimous dismissal in 1972 of one of the earliest challenges to a gay marriage ban, inBaker v. Nelson, Cooper said at argument this March that “it seems implausible in the extreme, frankly,” that nine justices would have then refused to hear that case if banning gay marriage “is irrational and can only be explained … as a result of anti-gay malice and a bare desire to harm.”

In other words, echoing Judge Scalia’s focus in his Lawrence v. Texas dissent on the “ancient roots” of anti-gay sentiment embodied in law, defenders of gay marriage bans would have you believe that the current laws against gay equality couldn’t possibly reflect prejudice since the age-old institution of heterosexual marriage emerged organically, for the sake of family and child-rearing, not to single out and punish a disfavored group.

The trouble is that’s a wholly ahistorical way to look at these cases. For starters, Baker v. Nelson was dismissed at a time when, as Justice Ginsburg pointed out at argument, gay sex was still criminal in numerous states. A second strike against champions of the “ancient roots” approach is the scholarly brief that helped sway the justices to strike down state sodomy bans in Lawrence v. Texas exactly 10 years ago today. That brief (a rare example of the crucial role scholarship can play in the real world) demonstrated that the court had (now infamously) upheld state laws criminalizing sodomy in 1986 in part by assuming that such laws had a deep history—without making sure that was actually true. “Far from possessing ‘ancient roots,’ American laws targeting same-sex couples did not develop until the last third of the 20th century,” the court finally said in Lawrence, relying on that important brief. This helped lead to Justice Kennedy’s poignant recognition, for the majority in Lawrence, that a proper understanding of our thinking about sex has shifted over time, revealing “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

Today it is Scalia who plays the role on the court of publically objecting to this evolution. He distinguishes between the right of We the People to evolve and what he sees as the court’s obligation to hold back from doing so. To him, as an originalist, the justices are not also people who might also consider the march of history in their decisions. “We have no power to decide this case,” he complains in his dissent, “and even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.” He calls the decision a “jaw-dropping” assertion of “judicial supremacy over the people’s Representatives in Congress and the Executive.”

Here’s the problem with all this originalist bluster. The laws being challenged here—and throughout the modern gay rights movement—do not date back to ancient times. They were passed recently. The Defense of Marriage Act was enacted in 1996. By then, more people were coming to understand that gay people weren’t a dangerous menace. That’s key, because it means DOMA and other laws of its ilk are properly evaluated based on whether they could have had a rational relationship to an important government interest in the late 20th century, not in ancient times.

During arguments in the DOMA case, Justice Kagan lit into Paul Clement, the lawyer defending the statute, as he tried to claim Congress passed it merely to promote “uniformity” among the states and “democratic self-governance.” Kagan asked if he really thought that “Congress was doing this for uniformity reasons” or “do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?” She clinched her argument by quoting from the House Report explaining the rationale for DOMA: “Congress decided to ‘reflect and honor a collective moral judgment’ and to express ‘moral disapproval of homosexuality.’ ”

And there you had it. The law’s backers actually wrote down their moral disapproval—their prejudice and animus—for all to see.

Today’s ruling reflects the growing public understanding that DOMA and other laws that treat gay people unequally, while they may echo long-standing beliefs, now simply lash out at one group for no good reason: “DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” This is not OK. “The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

At argument, Justice Scalia asked a quite reasonable question of Ted Olson, the lawyer challenging California’s gay marriage ban: “When did it become unconstitutional to exclude homosexual couples from marriage?” Once upon a time, it probably wasn’t. And Scalia believes that should remain the answer forever.

But Olson didn’t miss a beat: “We’ve learned to understand more about sexual orientation and what it means to individuals,” he said, quoting a line from Ginsburg: “A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded.” Edith Windsor, the 83-year-old plaintiff in the DOMA case, added afterward, talking to the press: “As we increasingly came out, people saw that we didn’t have horns. … It just grew to where we were human beings like everybody else.” As of today, a majority of Americans, and a majority of the Supreme Court, have recognized this essential humanity of gay people. If history is any guide, their numbers will only grow.

A one-two punch to the nation’s most prominent antigay laws


Posted on June 26th, 2013 by Lauren Gutterman

SuzanneGoldberg headshotFrom Suzanne Goldberg, Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School and Director of the Center for Gender and Sexuality Law, cross-posted from the SCOTUS Blog on June 26, 2013.

The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

Yet reaching this conclusion was not a constitutional stretch.  Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.

Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage.  In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.

But if the change has come quickly in constitutional and political terms, it has been a long stretch of years for same-sex married couples who have lived under DOMA’s discriminatory regime.   And it has been a full decade since marriage rights were first recognized in Massachusetts, which in turn enabled DOMA’s double standard for the marriages of same- and different-sex couples to have its first practical application.  The Court’s opinion makes these injuries plain.

Of the thousand-plus marriage rights that DOMA denied to same-sex married couples, Justice Kennedy’s opinion highlights some of the law’s most profound harms –as well as harms have been especially vexing to same-sex couples (and their lawyers and accountants) – including DOMA’s denial of healthcare benefits, bankruptcy protections, and joint tax filing.  The majority opinion also sets out the obligations that the federal government imposes on married couples but, under DOMA, did not apply to same-sex couples – including federal ethics and government integrity rules.

And in one small but notable snippet, the Court mentions that DOMA’s injuries extend to prohibiting same-sex married couples being buried together in veterans’ cemeteries.  Although many readers probably skimmed right through that part of the opinion, it is worth remembering that until September 2011, when Congress repealed Don’t Ask Don’t Tell, gay and lesbian individuals could not even serve openly in the nation’s military.

Following on Justice Kennedy’s concern about the children of same-sex couples, which he voiced during the oral argument, the Court’s opinion also flags the specific financial injuries that DOMA causes to married same-sex couples with kids, including those related to health care and survivors’ benefits.

All of this is important, of course, to Justice Kennedy’s reasoning.  But what is most striking about the opinion, again, is the direct, clear way that the Court seems to understand why DOMA is such an egregious violation of the constitution’s equality guarantee under the Fifth Amendment.   Words like “demean,” “degrade,” and “humiliation” do not appear often in Supreme Court opinions in reference to unconstitutional laws.  Yet the Windsor decision is replete with those words and more.    Indeed, the tone of the opinion almost suggests a sense of offense on the Court’s part:  “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”  And again, DOMA “imposes a disability . . . by refusing to acknowledge a status the State finds to be dignified and proper.”  Still more:  “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

The immediate impact of DOMA’s invalidation will be powerful.   For same-sex couples who are legally married and live in one of the 13 states that recognize their marriages (now including California; more on that in a moment), full marriage equality will be theirs to enjoy on the same-terms as different-sex couples.

This shift will also bring to the end a fraught political battle in another field – immigration –where the Senate recently, and dramatically, refused to include same-sex couples in its immigration reform bill.  Although immigration rights were not highlighted on the Court’s list of DOMA’s harms, this issue has been particularly damaging and painful to same-sex binational couples, who have until now been treated as legal strangers by federal immigration law.  Although the Obama administration recently took steps to limit deportations in which a couple would be torn apart, nearly all same-sex binational couples have been living in a painful legal limbo, separated by national borders.  With DOMA’s demise, this, too, should end immediately.

But DOMA’s invalidation does not entirely end the problem of marriage discrimination against same-sex couples.  Instead, its legal impact is at the federal level, and even that is likely to be uneven, reflecting the country’s complex legal patchwork for same-sex couples.  For legally married same-sex couples outside those states, who also want their marriages recognized by the federal government, a new wave of challenges begins.

On this point, the Court also made an important observation.  Although recognizing that the federal tradition is to defer to the states, the Court also made clear that the federal government can “regulate the meaning of marriage in order to further federal policy.”

Given the Obama administration’s opposition to DOMA, this statement will certainly be invoked by advocates to push the administration to move quickly in doing all that it can to recognize same-sex couples’ marriages, even in states that do not recognize those marriages.  Some of this change can come quickly through policy change and executive order.  Other moves to equalize marriage rights at the federal level may need to come via agency regulation, which requires notice and comment.  Indeed, shortly after the decision came down, the President issued a statement applauding the Court’s decision to strike down DOMA and stating that he has “directed the Attorney General to work with other members of my Cabinet to review all federal statutes to ensure this decision, including its implications for Federal  benefits and obligations, is implemented swiftly and smoothly.”

On Perry and Prop 8

By contrast to the Windsor decision, the tone of the Perry decision is straightforward and the content is almost strictly doctrinal.  It is also absolutely correct in my view, and adheres to reasoning my colleague Henry Monaghan and I presented in an amicus brief (and to similar reasoning offered by former Solicitor General Walter Dellinger).

Consistent with its other Article III standing jurisprudence, the Court concludes that private parties cannot step in to defend the constitutionality of a state law when a state government has opted not to defend.  As the Court noted, this had been an open question until now; though earlier precedent cast strong doubt on a private party’s ability to substitute itself for the government to defend a law, Perry is the first case to present that issue squarely.

Two aspects of the opinion – or rather, what is not in the opinion – warrant special attention.  First, had the Court gone the other way and found standing for Proposition 8’s sponsors, as the four dissenters would have ruled, Article III would now be beset by a gaping hole.  Allowing private individuals to invoke federal court jurisdiction when they disagree with a government’s decision not to defend a law would have vitiated the long-settled Article III requirement that federal court litigants have a direct and particularized interest in the case they pursue.

And this, in turn, would have created enormous political problems.  In the Perry case, for example, Proposition 8’s sponsors – while claiming to be acting in the California government’s stead – were making arguments condemning gay parents that directly contradicted California law and policy.

The second notable feature of the opinion comes back to tone.  An alternate opinion might have regretfully expressed that Article III denied standing and offered support for Proposition 8’s sponsors in the political or state court realm.  This alternate opinion might have colored its opening paragraph, not by Chief Justice Roberts’s observation about the “active political debate over whether same-sex couples should be allowed to marry,” but instead by a framing much more sympathetic to those who would deny marriage equality to same-sex couples.

But it did not.  Instead, the Chief’s opinion, apart from that opening paragraph and a brief recounting of the facts, could have been written for any other case involving a voter initiative that the state did not defend.  This absence of commentary on the convictions of Proposition 8’s sponsors, as much as the more dramatic language in the Windsor opinion, underscores the sea change in the Court’s approach to gay rights claims.

In short, the outcomes here are both consistent with prevailing jurisprudence, and both are likely to be invoked in the future as marriage litigation continues into its next phase.  More importantly, perhaps, the Court’s effusive, heartfelt invalidation of DOMA is consistent with the prevailing trend in the nation toward including gay people not only in marriage but also in the country’s greater promise of equality for all.

Professor Goldberg was counsel of record on an  amicus brief in support of the respondents in Hollingsworth v. Perryand was among the counsel on an amicus brief in support of the respondents in United States v. Windsor.

In “One-Two Punch,” Justices Strike Down Federal Defense of Marriage Act and Let Stand a Lower Court’s Ruling Against California’s Prop 8.

Media Contact: Public Affairs, 212-854-2650 or publicaffairs@law.columbia.edu

New York, June 26, 2013—Professors Suzanne B. Goldberg and Katherine M. Franke of Columbia Law School’s Center for Gender and Sexuality Law applauded the U.S. Supreme Court’s decisions today striking down the federal Defense of Marriage Act (DOMA) and leaving in place a lower court ruling that had invalidated California’s Proposition 8, which took the right to marry away from same-sex couples in that state.

The rulings are the high court’s first major gay rights decisions in a decade. The DOMA decision came in Edie Windsor v. United States, a case in which the U.S. refused to recognize Windsor’s marriage to Thea Speyer and, when Thea died, sent Edie a $300,000+ tax bill. If the couple’s marriage had been recognized, Windsor would not have faced any taxes on the estate because of the tax code’s marital exemption.

The Prop. 8 decision in Hollingsworth v. Perry found that the sponsors of the ballot initiative did not have standing to bring their case to the Supreme Court. As a result, the trial court ruling – which struck down Prop. 8 as a violation of same-sex couples’ equality rights under the U.S. Constitution – remains in place.

“The Windsor decision powerfully rejects DOMA’s humiliation and injury to same-sex couples,” said Goldberg, the Herbert and Doris Wechsler Clinical Professor of Law and co-director of the Center for Gender and Sexuality Law, who co-authored amicus briefs in both cases. “The two decisions together are a one-two punch to the nation’s most prominent anti-gay laws.”

“These two decisions solidify the meaning of full citizenship for gay and lesbian people: we can no longer be singled out by local, state or federal governments for reasons based in bias,” said Franke, co-director of Columbia Law School’s Center for Gender and Sexuality Law and the Sulzbacher Professor of Law. “Today the Supreme Court affirmed the view held by most members of the American public, that there are no legitimate reasons to bar same sex couples from legally marrying, and that the reasons offered by the defenders of DOMA and Proposition 8 were based in bigotry and animus.”

Franke also signed onto the Windsor amicus brief.

In Windsor, the court recognized that the Constitution’s equality guarantee prevents the federal government from imposing unequal marriage rules. Until today’s ruling, DOMA persisted despite the fact that gay couples are allowed to marry in 12 states and the District of Columbia. This rejection of a law singling out gay people for legal burdens follows on a 2003 ruling striking down a criminal statute that punished same-sex couples’ sexual intimacy (Lawrence v. Texas)and a 1996 ruling rejecting a law that blocked antidiscrimination protections for gay people (Romer v. Evans).

The Hollingsworth decision also fits in with a long line of cases finding that only those who suffer a “concrete and particularized” harm can participate as parties in federal court litigation.

“Going forward, the federal government should immediately recognize the marriages of same-sex couples who, like heterosexual couples, have been married under state law,” said Goldberg, who was co-counsel for plaintiffs in the Lawrence and Romer cases. “For couples in states that do not recognize their marriages, the Obama administration can make clear, through regulation, that the federal government will recognize those marriages and not participate in state-sponsored discrimination.”

In the Windsor amicus brief, Goldberg and Georgetown Law Professor Nan Hunter advanced a framework for giving meaning to the Constitution’s equal protection guarantee. The Perry brief, co-written by Columbia Law School Professor Henry P. Monaghan, urged the Court to find that the Proposition 8 sponsors lacked standing. Sarah H. Cleveland, the Louis Henkin Professor of Human and Constitutional Rights and co-director of the Human Rights Institute, and Visiting Professor Harold Hongju Koh also filed a brief in favor of equality in the Prop. 8 case.

Through the work of the Center for Gender and Sexuality Law, Columbia Law School has become the preeminent law school in the country for research, teaching, and advocacy on gender and sexual justice.

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FRANK Book Pic MediumFrom Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published on Slate on June 25th:

In a speech last week titled “Mullahs of the West: Judges as Moral Arbiters,” Justice Antonin Scalia told the North Carolina Bar Association that the court has no place acting as a “judge moralist” in issues better left to the people. Since judges aren’t qualified—or constitutionally authorized—to set moral standards, he argued, the people should decide what’s morally acceptable.

But does Scalia, whose quarter-century on the bench has marked him as the court’s moral scold for his finger-wagging views on social issues, have a coherent understanding of what it means to say something is or isn’t moral, and of morality’s proper role in the law?

Scalia would have you believe it’s liberal, pro-gay sympathizers who are imposing their own brand of moral laxity on the nation, and unconstitutionally using the courts to do it. His angry dissent in the 2003 Lawrence v. Texas case ending sodomy bans—decided 10 years ago this week—blasted the court for embracing “a law-profession culture that has largely signed on to the so-called homosexual agenda [which is] directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Ever since, Scalia has been railing against the loss of “moral opprobrium” as a legitimate basis for passing laws. Scalia implies that whatever the people feel should rule the day, constitutional rights be damned. “Countless judicial decisions and legislative enactments,” he wrote, “have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” A long string of state laws, he argued, are “sustainable only in light of” the court’s “validation of laws based on moral choices,” including bans on incest, prostitution, masturbation, adultery, fornication, bestiality, public indecency and selling sex toys.

Yet as Sandra Day O’Connor pointed out in her concurring opinion in Lawrence, that’s not actually true. At least when you’re singling out a group for separate treatment. “We have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.”

Scalia may wish that moral disapproval alone were a legitimate basis to discriminate, but if you read his Lawrence dissent closely, you’ll find evidence that he knows he’s lost that battle: The giveaway is that he nearly always pairs his references to morality with some other asserted state interest. He defends the people’s right to legislate their belief that some forms of sex are “immoral and unacceptable,” to oppose, by law, “a lifestyle that they believe to be immoral and destructive,” and to pass public indecency statutes to protect “order and morality.”

The American legal system, while making some room for moral complaint in law, has nearly always paired it with some more concrete form of harm. According to the legal scholar Diane Mazur, the Supreme Court has, for most of its history, combined reference to morality with other actual harms such as threats to order, health, safety and welfare. It decided cases on the importation of slaves based on the “health and morals” of the people; it decided whether to permit a civil rights march based on its impact on the town’s “safety, health, decency, good order, morals or convenience”; and it decided cases about nude dancing based on a state’s interest in “protecting societal order and morality.”

In each case, “morality” seems an afterthought—something that legislators or judges throw into the mix to make a point, but never the real basis of law. If what’s really at issue are acts that threaten safety, health, and order, why do people like Scalia keep insisting that mere moral disapproval, rather than preventing harm, should be a constitutionally legitimate basis to limit people’s rights?

The entire anti-gay movement has gotten this memo. Which is why arguments that gay people are sick, disgusting and all-around morally bad have yielded, since the 1990s, to arguments alleging that gays threaten to cause concrete harm to American families and institutions. Of course, many social conservatives, often animated by their religious traditions, still believe homosexuality is immoral. And this view occasionally still appears in arguments against gay marriage, as when the proponents of Prop 8 claimed that the initiative advances “important societal interests” like accommodating the rights of those who “support the traditional definition of marriage on religious or moral grounds.”

But these days anti-gay advocates mostly stick to claims of harm, even bending over backward to insist they don’t view homosexuality as a moral issue. Societies have historically restricted marriage to opposite-sex pairs, argued Prop 8’s defenders, “not because individuals in such relationships are virtuous or morally praiseworthy, but because of the unique potential such relationships have either to harm, or to further, society’s vital interest in responsible procreation and childrearing.”

If you’re obsessed with morality, like Scalia, that approach must be irritating indeed. Scalia seems to reduce morality to feelings and tastes alone. He wants judges to get out of the way and respect that “people may feel that their disapprobation of homosexual conduct is strong enough” to pass laws against them. For him, it was the very “impossibility of distinguishing homosexuality from other traditional ‘morals’ offenses” that allowed the court to ban sodomy prior to Lawrence.

But homosexuality is distinguishable from other morals “offenses.” Assisted suicide, incest, adultery, pornography—all these arguably cause some form of harm to living creatures, while two women loving each other just doesn’t. We can argue this point and debate the subtleties of that harm—Is a fetus a full human with capacity for pain? Does pornography necessarily degrade women? Indeed the healthy—and genuinely moral—society is the one that does debate these points instead of lumping together whatever scrunches up our noses into the amorphous category of a moral wrong.

What we should no longer be able to get away with in the 21st century is calling something immoral just because we don’t like it. Genuine moral judgment is not reducible to whatever people feel, what they like or don’t like. (Isn’t that what lax liberals are alleged to believe?) Morality is not just whatever views a majority has long held, and it’s not simply what you learned on your mother’s knee or whatever it says in your faith’s scripture. Moral belief is a grounded judgment about what harms or helps living things. Yet somehow, homosexuality’s become just about the only thing left that people get to call immoral without every explaining why.

If equal treatment of gay people harms society, that alleged harm should be debated. But trying to defend discrimination by giving free rein to some people’s moral disapproval of homosexuality is a losing battle, and a shockingly sloppy mode of thinking about what “morality” actually means. Morality actually has a rational basis; moralists, not so much.

The Clinic argues Marco Feliciano’s election is troubling because of statements about gays and minorities.

Media Contact: Public Affairs, 212-854-2650 or publicaffairs@law.columbia.edu

New York, June 20, 2013– Columbia Law School’s Sexuality and Gender Law Clinic, along with legal clinics from Cornell Law School and the University of Miami School of Law, has written an open letter expressing concern about the recent election of Marco Feliciano as president of the Brazilian Chamber of Deputies’ Human Rights and Minorities Commission (HRMC) because of Feliciano’s anti-gay and racially biased statements.

Led by its president, the HRMC—one of the commissions in the lower house of the Brazilian Congress—acts to safeguard human rights and ensure equal treatment of minorities in Brazil.

The clinics argue in their letter that Feliciano’s election is troubling because he has regularly made public homophobic and racist remarks, including on his Twitter feed.

The clinics assert that the election of a biased president for the HRMC sends the wrong message to the international community, especially in light of Brazil’s recent election to the United Nations Human Rights Council and its corresponding obligations to protect and promote human rights. In recent years, Brazil has made progress in protecting human rights and ensuring equality for all, including LGBT individuals. But Feliciano’s election may take the country a step backwards on these issues.

Read the open letter.

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Note: The opinions of individual faculty members, centers, clinics, and programs, do not necessarily reflect the views of the Law School as an institution.

Columbia Law School, founded in 1858, stands at the forefront of legal education and of the law in a global society. Columbia Law School combines traditional strengths in corporate law and financial regulation, international and comparative law, property, contracts, constitutional law, and administrative law with pioneering work in intellectual property, digital technology, tax law and policy, national security, human rights, sexuality and gender, and environmental law.

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The Columbia Law School’s Sexuality and Gender Law Clinic addresses cutting-edge issues in sexuality and gender law through litigation, legislation, public policy analysis, and other forms of advocacy. Under Professor Suzanne B. Goldberg’s guidance, clinic students have worked on a wide range of projects to serve both individual and organizational clients in cases involving issues of sexuality and gender law.

* Portuguese translation available here

O Escritório Modelo defende que a eleição do Sr. Marco Feliciano é preocupante por causa de declarações em relação a gays e minorias.

Contato com a mídia: Public Affairs, 212-854-2650 ou publicaffairs@law.columbia.edu

Nova York, 20 de junho de 2013 – O Escritório Modelo de Advocacia de Sexualidade e Gênero da Faculdade de Direito da Universidade de Columbia, em conjunto com escritórios modelos da Faculdade de Direito da Universidade de Cornell e da Faculdade de Direito da Universidade de Miami, preparou uma carta aberta demonstrando preocupação em relação à recente eleição do Sr. Marco Feliciano para o cargo de presidente da Comissão de Direitos Humanos e Minorias da Câmara dos Deputados do Brasil (CDHM), tendo em vista as declarações de cunho homofóbico e racista do Sr. Feliciano.

Liderada por seu presidente, a CDHM, uma das comissões da Câmara dos Deputados do Congresso Brasileiro, visa à proteção dos direitos humanos e à igualdade de tratamento de minorias no Brasil.

Os escritórios modelos argumentam, em sua carta aberta, que a eleição do Sr. Feliciano como líder dessa importante comissão é preocupante, já que ele tem regularmente feito comentários públicos homofóbicos e racistas, incluindo em sua conta no Twitter.

Os escritórios modelos afirmam que a eleição de um presidente parcial para a CDHM envia uma mensagem errada para a comunidade internacional, especialmente por causa da recente eleição do Brasil para o Conselho de Direitos Humanos das Nações Unidas e suas correspondentes obrigações de proteger e promover os direitos humanos. Nos últimos anos, o Brasil tem atingido progressos no sentido de proteger os direitos humanos e de assegurar a igualdade para todos, incluindo seus cidadãos LGBT. No entanto, a eleição de Feliciano pode fazer com que o Brasil retroaja nesses assuntos.

Leia aqui a Carta Aberta.

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Observação: As opiniões de membros individuais do corpo docente, centros, escritórios modelos e programas não refletem necessariamente a opinião da Faculdade de Direito como instituição.

A Faculdade de Direito da Universidade de Columbia, fundada em 1858, está na vanguarda do ensino jurídico na sociedade global. A Faculdade de Direito da Universidade de Columbia combina forças tradicionais no direito empresarial e regulamentação financeira, direito internacional e comparado, direitos da propriedade, contratos, direito constitucional e direito administrativo, com trabalhos pioneiros em propriedade intelectual, tecnologia digital, direito tributário, segurança nacional, direitos humanos, sexualidade e gênero e direito ambiental.

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O Escritório Modelo de Advocacia de Sexualidade e Gênero da Faculdade de Direito da Universidade de Columbia aborda questões revolucionárias em matérias de direito de sexualidade e gênero, por meio de processos judiciais, legislação, análise de políticas públicas, e outras formas de advocacy. Sob a orientação da Professora Suzanne B. Goldberg, os alunos do Escritório Modelo têm trabalhado em variados projetos, atendendo clientes (pessoas físicas e jurídicas) em casos envolvendo questões de direito de sexualidade e gênero.

 

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