Gender & Sexuality Law Blog

The Society for Chinese Law invites you to a screening of The Epic of the

Central Plains, a 2006 documentary by professor/filmmaker/activist Ai

Xiaoming. The film examines the plight of villagers in rural Henan Province,

many of whom contracted HIV in the 1980s and 90s through the common local

practice of selling blood.

Following the film, Dr. Wan Yanhai of the Aizhixing Institute of Health and

Education, and formerly of China’s Ministry of Health, will discuss his

experience leading a Chinese NGO and advocating for the rights of people

living with HIV/AIDS.

Tuesday, April 2

5:00 – 7:30 pm

JG 102

Dinner from Thai Market will be served.

http://asiapacific.anu.edu.au/events/event_details.php?searchterm=cap_623502250&semyear=2013>

Roderick Ferguson
Professor of American Studies, University of Minnesota
The Reorder of Things: The University and Its Pedagogies of Minority Difference

Friday, April 5
12:00-2:00pm
754 Schermerhorn Extension

On Friday, April 5th, Roderick Ferguson, Professor of American Studies at the University of Minnesota, will speak for the Institute for Research on Women, Gender, and Sexuality’s Feminist Pedagogy series.  He will be discussing his book The Reorder of Things.

WMST G8001 Feminist Pedagogy is a one-credit directed reading course.  All Feminist Pedagogy talks are open to the public.

Future talks in the series will include:
Friday, April 19, 1:00-3:00pm – Ann Cvetkovich
Friday, May 3, 1:00-3:00pm – Darieck Scott

From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in the Huffington Post on March 28th:

Whatever the outcome of this week’s historic Supreme Court hearings on same-sex marriage, one thing has become crystal clear: there is no longer, if there ever was, a rational argument to ban it. That very question — when did it become unacceptable to ban gay marriage — was at the center of a tense exchange between Justice Scalia and Ted Olson, the lawyer challenging Prop 8. “When did it become unconstitutional to exclude homosexual couples from marriage?” Scalia wanted to know, clearly believing the answer was “never.”

While the focus of Scalia’s question was the constitutional grounds for banning gay marriage, his challenge applies more broadly as well: When did it became socially unacceptable to oppose gay marriage? Are there any grounds for holding that position beyond simple prejudice? Is it possible to oppose gay marriage and not be anti-gay?

The oral arguments this week gave these questions their final hearing, as opponents took their most public opportunity ever to put together a cogent argument for banning gay marriage that didn’t rest on prejudice against gay people.

They failed miserably. Charles Cooper, the lawyer defending Prop 8, famously acknowledged to the trial court that he could not explain how gay marriage harmed the “procreation purpose” of marriage. So it was predictable that the Justices gave him another shot this week. When asked if had found any reason for excluding gay couples from marriage, he threw everything he could at the bench, and nothing stuck.

One could reasonably believe that “redefining marriage to a genderless institution could well lead over time to harms,” he said first. When pressed on how gay marriage could cause those harms, he said it could sever the institution’s “abiding connection to its historic traditional procreative purposes.” When asked the rationale for letting women too old to procreate marry, given that such a marriage would seem to have already severed that connection, Cooper claimed that blessing a straight, but not gay, infertile union was still rational because it made the man in such a union less likely to “engage in irresponsible procreative conduct outside of that marriage” — still not explaining how letting gays wed would affect that likelihood.

When this fell on deaf ears, Cooper seemed to forget the premise of the question he’d been asked — how could he justify blessing a straight infertile union but not a gay one? — and returned to his talking point that society has an interest in “seeing any heterosexual couple” that plans to live together get married first “so that, should that union produce any offspring,” — something an infertile union, by definition, can’t do — “it would be more likely that that child or children will be raised by the mother and father who brought them into the world.”

He also tried the “marital norm” argument which claims that, even if a straight marriage is infertile, it’s acceptable because it furthers the social norm of monogamous heterosexual commitment, which is critical to child welfare. The “marital norm” argument has been the last effort by marriage equality opponents to argue their position without conceding anti-gay animus. But anti-gay animus is built into the argument. The logic is that a “marital norm” creates an expectation of commitment, helping to keep sexually active straight pairs faithful to each other in case a kid pops out; but calling a gay union a “marriage” could weaken that norm, since too few people regard gay relationships as models worth following. It’s the same argument that eventually lost in the battle over “Don’t Ask Don’t Tell,” in which gay service was said to threaten unit morale: Letting gays into the sandbox will drive others away, so even if we grown-ups aren’t anti-gay (a big “if”), we simply can’t force equality onto the whole playground without risking chaos. By this reasoning, prejudice becomes a justification for perpetuating itself. The grown-ups never step in to do what’s right.

On Wednesday the lawyer defending the Defense of Marriage Act (DOMA) tried his hand at offering a rationale for excluding gay couples from marriage that didn’t rest on animus. Paul Clement said the government was trying to promote “uniformity” and “democratic self-governance” by declining to recognize gay marriages in states that legalized them.

The absurdity of these rationales led Justice Kagan to wonder aloud if “we really think 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?” The clincher was when she quoted from the House Report explaining the 1996 law, which said: “Congress decided to ‘reflect an[d] honor [a] collective moral judgment’ and to express ‘moral disapproval of homosexuality.’”

Oops! The law’s backers actually wrote their animus into the Congressional record, and try as he might to distance his defense from theirs, Clement failed to come up with any rationale beyond moral disapproval.

While Olson initially struggled to answer Scalia’s question about when it became unconstitutional to exclude gay couples from marriage, he later nailed it: “We’ve learned to understand more about sexual orientation and what it means to individuals,” he said, adding a quote from Justice Ginsberg that he said resonated with him: “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 DOMA plaintiff, also nailed it in yesterday’s news conference outside the Court: “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.”

And this is really the key point. As Roberta Kaplan, arguing for the DOMA plaintiff, said, “With respect to the understanding of gay people and their relationships, there has been a sea change” since 1996. Once a critical mass of Americans came to understand that being gay is a natural part of some people’s existence, whether by birth or for reasons of enduring nurture, and that it harms no one, there were no more legitimate reasons to treat gay relationships unequally, just varieties of blind faith in the wrongness of homosexuality — and rationalizations to veil such animus behind pronouncements of harm.

With the “gay marriage harms marriage” argument wholly discredited, it’s become impossible to take seriously any claim that you can oppose gay marriage without being anti-gay. Sure, you’re entitled to be emotionally invested in a narrower, older understanding of what marriage means. But once you bother to weigh the arguments — once you recognize the essential humanity of gay people, and assess the harms wrought by treating them differently and the lack of harm caused by letting them wed — there’s only one right position to take, whatever your feelings may tell you.

With no reasons left to oppose gay equality besides the personal belief that gay unions have lesser value, it’s tempting to call all marriage equality opponents bigots, and assume bad faith. Those less comfortable with gay equality are clearly sensitive to the charge. Chief Justice Roberts asked — incredulously — if the 84 senators who voted for DOMA could really have been “motivated by animus?” Opponents of marriage equality naturally resent being called bigots for holding a position that, until recently, the vast majority of humans pretty much took for granted — that marriage was an opposite-sex union. And they have a point.

Fortunately the courts, which have been the best venue to reveal the bias at the root of anti-equality sentiment, may also offer the best route to confronting it. Wisely, neither Kaplan nor Solicitor General Donald Verrilli took Roberts’ bait. “I’m not saying it was animus or bigotry,” said Kaplan of the motive behind the law. But “times can blind” and DOMA was based on “an incorrect understanding that gay couples were fundamentally different than straight couples.”

Verrilli echoed the point. “It may well not have been animus or hostility,” he said. He then offered a 2001 Kennedy quote suggesting that prejudice can arise not just from hostility but from “the simple want of careful reflection or an instinctive response to a class of people or a group of people who we perceive as alien or other.”

Certainly it was a matter of legal strategy — and simple propriety — to avoid offending the justices. But this more generous understanding of gay marriage opponents may be as practical as it is kind. Those wishing to continue progress toward the equal dignity of gay people beyond the achievement of legal parity should keep in mind that prejudice is not the same as malice, and should encourage the kind of “careful reflection” that remains, for too many, all too rare.

            Because the news media is awash in legal analysis of the Defense of Marriage Act oral arguments earlier today, this blog post, like yesterday’s, offers a more personal view of the day at the Supreme Court.  For a more in-depth take on the arguments, please see my post, “DOMA’s Defenses Self-Destruct”.

March 28, 2013 –  Waking up for morning 2 of the Supreme Court’s marriage bonanza felt both familiar and new.  This time, I was at least somewhat more ready for DC’s early morning cold (two pairs of socks!) and also its beauty, though the Capitol still took my breath away when I arrived at the Court just after 6 a.m. with the moon hanging overhead.

Although the bar line was collegial, there was more tension in the air because fewer seats would be available in the courtroom today.  Extra counsel tables had been added for the plethora of lawyers set to argue questions about both jurisdiction and the merits of Windsor v. United States and more members of Congress were anticipated as attendees at the arguments. Still, by the time William Suter, the Court’s Clerk, strolled down the line to say good morning around 7 a.m., there were few strangers on line – we had all gotten to know our line-mates and most of us were deep in conversation rehashing yesterday’s arguments and imagining today’s.

Standing with long-time friends from the National Center for Lesbian Rights, I was struck this morning by the fact that I hadn’t met a single lawyer on line either day who was opposed to marriage equality for same-sex couples.  I imagine they were there, but the numbers must have been very small, and they were certainly very quiet.  Indeed, even in the rallies that followed both days of arguments, the crowd was overwhelmingly supportive of marriage rights, with just a scattering of “Adam and Eve, not Adam and Steve”-type signs in the crowd.

Eventually, we started snaking our way toward the courthouse’s side doors.  Going into the Supreme Court on a crowded argument day is a series of hurry up and wait experiences.  There is the rush to get to the Court and then the long wait outside.  The excitement when the courthouse doors open and then the wait to go through the metal detectors.  The line for checking identification, and then the wait to go upstairs.  And so on.  Of course, there is plenty of time since the justices do not enter the courtroom until 10 a.m.

When we were guided into the courtroom about an hour before argument was set to begin, the courtroom felt electric once again.  Most of us in the bar section had gotten little sleep in the previous 24 hours, this was the argument that I was most excited to see, in part because the Court would be devoting a full hour to DOMA’s merits in addition to the hour set for debate over whether the Court had jurisdiction to hear the case.

The presence of many federal judges who had come to watch added to the sense of moments, as did the selected officials who took seats, including House Minority Leader Nancy Pelosi.

I found myself seated almost exactly where I was yesterday, right next to the section where the reporters sit.  This is one of my favorite spots because it allows for interesting pre-argument conversation (the courtroom is a cell phone-free zone!) and a chance to observe the ebbs and flows of the argument from a media standpoint.   Indeed, when I glanced over during the first hour of arguments, which focused on jurisdiction and tended toward the technical, several reporters seemed to be thinking more about their next cup of coffee than what was written on page 939 of the Chadha case.

As 10 o’clock came into sight on the large clock above the bench and the justices filed in, the marshal started the proceedings in keeping with longstanding courtroom tradition:  “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.”

After several of the justices announced opinions from the bench and more new lawyers were sworn in to the Supreme Court bar, Chief Justice Roberts called the case:  “We will hear argument this morning in Case 12-307, United States v. Windsor.”  All eyes focused forward as Harvard Law School professor Vicki Jackson got up to begin the arguments on jurisdiction.

Professor Jackson was there to set out arguments for why the Court lacked authority to hear the case.  None of the litigants had taken the position that the Court lacked jurisdiction, so the Court had appointed Professor Jackson to insure that those arguments were fully developed.  Methodically, under challenging questioning, she raised a number of serious concerns about whether the United States can properly ask the Supreme Court to review a lower court decision when the U.S. believes the lower court decided the case correctly.  This is exactly what happened in the Windsor case, where the U.S. agreed with both the federal district and appeals courts that DOMA was invalid but wanted a more authoritative ruling from the nation’s highest court.

During the hour of hard-fought argument, I found myself quite unsure about what the Court would do.  On the one hand, it seemed that a majority of justices were quite skeptical about the power of the United States or the Bipartisan Legal Advisory Group (BLAG), which is defending DOMA, to invoke federal appellate jurisdiction.  (The concern about BLAG is that it purports to represent the House of Representatives, and there are many reasons to think that one branch of Congress lacks authority to defend a federal law that the executive branch believes to be invalid.)

The second hour moved to the merits – that is, whether DOMA violates the rights of same-sex couples.  Here, the Court’s leanings seem clearer.  As I say in the blog post mentioned above, DOMA’s defenses appeared to self-destruct.  No one focused on procreation today, unlike yesterday.  Likewise, there was nary a word about the need for marriage to prevent irresponsible procreation by different-sex couples.  Instead, a majority of justices took turns thrashing arguments about the federal government’s interest in uniformity and protecting state’s rights.

At around 12:15, it was all over.  We all rose and the justices left the room.  In hushed tones, the rehashing by audience members began almost instantaneously and continued as we retrieved our cell phones from their lockers and headed down the stairs.  Walking out of the courthouse, the day was now in full bloom, with the Court’s marble steps luminous in the sun, and a huge rainbow-flag flying crowd waiting just beyond in full support.

Indeed, it was this experience, coupled with the absolute flood of media attention to these cases, that made me realize what an enormous legitimacy problem the Court will have on its hands if declines to address DOMA’s constitutionality.  Because it seems so likely that the Court will not address the merits of Proposition 8 in Perry, the pressure is on for the Court to decide whether the federal government can deny more than a thousand benefits to same-sex couples who are lawfully married in their home states.  And although it is never possible to predict what the Court will do in any case, my strong sense, after today’s discussion – and its sharp contrast to yesterday’s – is that, if the Court does address the equality question, the days of federal marriage discrimination against same-sex couples will soon be coming to an end.

Since the news media is saturated with analysis of the Court’s arguments in today’s Proposition 8 case, this blog post offers a more personal view of the proceedings:

I dashed down from my hotel room at 6:10 a.m. to catch a predawn ride with colleagues over to the Supreme Court.  Even at that hour, First Street was barricaded by the police in anticipation of rallies and protests to come later in the morning.  We made our way around the courthouse, past the very long “public line” for members of the general public and took our places on the shorter, but still long, line for members of the Supreme Court bar.

Gloves, scarves and hats were everywhere – even wraparound blankets. Lots of hellos, too, with lawyers who had traveled in from across the country – just in our immediate area were colleagues from Minnesota, Texas, and California, as well as plenty of us from New York, and D.C., of course.  We shared snacks and coffee and the sense of being in an historic place at an historic time as the sun rose and the Capitol building, just across from the nation’s high court, started to gleam.

Just at the point when my toes were about to snap off from the cold, the bar line started snaking toward the courthouse, slowly but surely, as lawyers and journalists passed through the metal detector.  Courthouse personnel ushered us back on to the bar line where several computers made sure we were actually admitted to the Supreme Court bar and not just opting for the shorter line.  One friend who I saw on line had snapped a photo of her Supreme Court bar certificate just in case there was a glitch.  Though I hadn’t thought to do that, I did have a dream the night before that there were 850 lawyers waiting to get in to the courtroom and I was number 851.  Oh, and then there were many – myself included – who had woken up semi-regularly the night before just to make sure we didn’t oversleep.

Huge sigh of relief when a courthouse staff member handed me a ticket and told me that we would make it inside the courtroom. The feeling was electric.  As someone in the press seats said, the entire gay bar seemed to be there.  While maybe that was a bit of an overstatement, there were plenty of us.  It reminded me of the courtroom’s feeling on the day Lawrence v. Texas was argued, but also of how long we had come since that argument, which was exactly ten years earlier to the day.   At that time, it was something unique to have that many openly LGBT members of the Supreme Court bar in one place.  This time was no surprise – just a recognition that the world has truly become a different place.

A buzzer sounded and the clerk called the Court into session.  Before the Perry argument got started, there was some business to conduct.  Justice Scalia announced an opinion in a case involving a dog sniffing around someone’s front door and finding marijuana.  It wasn’t lost on me, or probably many others, the justice’s easy presumption that the home is a place of privacy, including from drug-sniffing dogs, when in 1986 the Court had found, in its infamous decision upholding Georgia’s sodomy law, that Michael Hardwick did not have a privacy right to have consensual oral sex with another man in his own bedroom.

Justice Scalia finished announcing the decision, a group of young lawyers were admitted to the Supreme Court bar by a special swearing-in ceremony, and it was time.  Chief Justice Roberts called Charles Cooper, lawyer for Proposition 8’s sponsors, and the argument began.

Mr. Cooper started off by trying to frame marriage as a tradition that would be threatened by the inclusion of same-sex couples.  He got out almost a sentence when the Chief Justice interrupted and said, “Mr. Cooper, we have jurisdictional and merits issues here. Maybe it’d be best if you could begin with the standing issue.”  From there, it was a quick moment before the justices jumped in, pressing Mr. Cooper as to why Proposition 8’s sponsors, who are private citizens without the accountability of government officials, should be able to stand in for the government.  (Full disclosure – I filed a brief with Professor Henry Monaghan arguing that the sponsors lack standing and have written about the issue elsewhere as well.)

While detailing the arguments is tempting, I will refer you to the Court’s transcript and just say, here, that by my count, at least five justices expressed serious concerns about whether private individuals can invoke the federal courts’ authority to decide cases where those individuals have not suffered a personal injury.  Here, since Prop 8’s sponsors are not seeking to marry same-sex partners, they have no claim that they’ve suffered their own injury by virtue of the measure’s passage.

Now, much of the media coverage has suggested that the justices were concerned about being asked to do too much (require 50 states to recognize same-sex couples marriages) too soon (when 9 states and the District of Columbia recognize those marriages).   Just briefly, for now, I disagree with that assessment.  My sense is that many of the justices are concerned about the harms to gay couples and to the children of gay couples that flow from states denying marriage equality.  Take for example this question from Justice Kennedy posed to the lawyer defending Proposition 8:

There is an immediate legal injury or . . . what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

At the same time, though, there is a serious problem with the sponsors of Proposition 8 putting that question before the Court because, again, they are not personally injured by the exclusion of same-sex couples from marriage.   If the Court is concerned about standing, as it seems to be, it has (at least) two options.  One is to “DIG” the case – meaning to dismiss the case because review was “improvidently granted.”  This would mean that the Ninth Circuit’s decision, which finds Proposition 8 to be unconstitutional, stays in place.Another, which I think is the better outcome, is not to dismiss but instead to write a full opinion holding that initiative sponsors cannot invoke the authority of the federal courts just because they feel passionately about a measure they have sponsored.  This would mean that the federal district court decision, which also found that Prop 8 violated the U.S. Constitution, is the one that holds.This latter outcome – with a decision on standing that leaves the district court opinion in place – is, I think, truest to the Court’s standing jurisprudence.  It gives the breathing room that many justices seemed to want to allow for this most basic issue of equality to percolate even further among the public.  Ultimately, though, the Constitution demands equality.  Though this is not likely the case to reach that point, equality looms there, on the horizon, and we seem to be well along the way

Watch Professor Suzanne B. Goldberg explain what’s at stake in the marriage equality cases before the U.S. Supreme Court.