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From Center for Gender & Sexuality Law Professor Patricia Williams, originally published in The Nation on February 5th, 2014.

In late January, Kansas State Senator Mary Pilcher-Cook introduced a bill that would have criminalized the use of surrogate contracts in pregnancy and imposed a $10,000 fine and up to a year in jail for anyone participating in such a transaction. The effort was quickly abandoned amid a storm that included pro-lifers battling pro-lifers, invocations of God having hired the Virgin Mary as a surrogate, sonograms performed live in a senate committee and a host of other risible posturings.

If the bill hadn’t been body-slammed into the dust by some of the sillier statements of its chief proponent (Pilcher-Cook asserted, for example, that surrogacy creates children who are “not going to have either a biological mother, biological father or both”), the discussion might have garnered more attention. The laws regarding surrogacy are a jumble of inconsistent public policies, free-market contracts, civil interventions and criminal sanctions. However incoherent the Kansas attempt, there’s a serious question as to whether individually drafted private contracts are sufficient to settle questions of intended parenthood, or if the “best interests of the child” standards governing custody, adoption and other realms of family law should have greater sway.

Some states have long found surrogate contracts not in the public interest, and a few already criminalize them. Many laws were passed in the early days of ovum transplantation and have not been adequately reviewed in the decades since. Hence, what laws are in place have not nearly kept up with the explosive technological revolution in assisted reproduction. Even in states that purport to regulate, it is largely doctors and IVF technicians who call the shots as to what’s acceptable in the realm of surrogacy and reproductive techniques.

There is deep conceptual confusion, as well as outright conflict, about what is at stake in surrogacy. Employing a woman—often a poor or minority woman in strapped circumstances—to bear one’s child is generally extolled in the language of gift, donation, altruism, joy, hope, sharing and religiously inflected fruitfulness. But it is, in actual practice, a mostly commercial transaction involving issues of pregnancy as labor, childbirth as priced, equality of bargaining power, exploitation of bodies and fairness of terms.

The fact that surrogacy is dominantly framed by the market also vexes the question of how we figure the reproductive freedom of women who simultaneously obligate themselves as so-called “containers.” Can a woman be contractually bound—forced, in other words—to have an abortion if developmental abnormalities are detected? And what happens if she enters a contract that fails to address the risk of complications that threaten her health but not that of the fetus? Would she be forced to carry the pregnancy to term?

We’ve recently seen the emotionally wrenching legal mess that ensued when the State of Texas attempted to forcibly keep Marlise Muñoz, a woman who was indisputably brain-dead, on life support so as to sustain her 14-week-old embryo for six more months. What if Muñoz had been a surrogate? If the language of contract imagines her body to be a mere container, would there have been more or less suasion in the attempt to hook up her hired-out body, already imagined without a brain, to pumps and bellows like a fetal factory? Ultimately, the court allowed Muñoz to be taken off life support, but the battle highlights implicit issues of dignity, bodily integrity and public health in surrogacy arrangements exceeding the sphere of private contract.

That said, Senator Pilcher-Cook’s proposal was motivated by a more familiar conceptual divide: that of when the biological processes set in motion by the fertilization of a human egg will be conferred legal standing as a “person.” Pilcher-Cook is among those who believe that full personhood is sparked from the moment of conception in any and all pluripotent cells. She assigns agency and a weirdly disembodied vitality even to embryos stashed in laboratory freezers because the “value of a human being doesn’t depend on their location.” While one wishes to respect such a comprehensive notion of humanity, to reinforce such a belief with criminalizing consequence seems unduly inhumane.

Frequently passed over in the debate about surrogacy is the ever-expanding litter of parties implicated as potential parents: egg donor, sperm donor, “intended” (or purchasing) parent or parents, gestational carrier and IVF inseminator (usually a medic or technician). In the emerging science of ooplasmic transplantation, moreover—where ova are manipulated to alter mitochondrial lines—children may be born with the genetic ingredients of two mothers and one father. This is deservedly controversial among bioethicists, because it directly tinkers with the human germ line, something that violates conventions of medical and social science practice. As this implies, whatever’s the matter with Kansas is most emphatically no longer a local question. Indeed, the ethics of cloning, of eugenic racial/cultural/aesthetic superiority and of desire for self-immortalization hovers at the edge of many of these discussions.

But bottom line, to try to criminalize surrogacy is a bit like trying to criminalize contraception or abortion, in that it comes too close to criminalizing sexuality, libido, intimacy. There is a complex of contentious, theologically bewildering dilemmas we are never going to solve with bright-lined legalisms. In a moment as unprecedentedly besieged by biological and technological revolution as ours, we should resist that first gesture toward criminalizing all who do not adhere to the way things have always been. By the same token, this very expensive technology should not blind us to the multiple ways we might otherwise make family, particularly if we relinquish the conceit that all our children must “look like us.” There are, after all, well over a million homeless children in the United States; at least 650,000 passed through foster care in 2012, and at least 120,000 are waiting for adoption. That much is truly criminal.

From Center for Gender and Sexuality Law Sabbatical Visiting Scholar Michele Goodwin, originally published in Slate on January 31st: 

In Texas, hospital officials refused for over two months to remove 33-year-old Marlise Muñoz, who was declared brain dead, from life support because of her pregnancy. A court ruling on Friday ordered John Peter Smith Hospital to take Munoz off life support in accordance with the family’s wishes, and her body was disconnected from machines on Sunday, Jan. 26.

The tragedy of Muñoz’s case is that it fits a terrible pattern of state interventions in women’s pregnancies.

In July 2013, Alicia Beltran was arrested, shackled and confined by court order to a drug treatment center for 78 days after she refused a doctor’s orders to take an opiate blocker. Beltran had confided to medical staff at a prenatal checkup that she had battled addiction to opiates in the past, but claimed she had overcome drug dependency and had recently taken a single Vicodin tablet before becoming aware of her pregnancy.

Christine Taylor was arrested in 2010 for falling down a set of stairs in her Iowa home. Hospital staff reported Taylor to police after interpreting the fall to fit within the state statute criminalizing attempted feticide.

Melissa Rowland’s reluctance to submit to an immediate cesarean section prompted medical personnel in Utah to request her arrest. She was subsequently charged with murder for the stillbirth of one of her fetuses.

In Florida, a state court authorized Samantha Burton’s involuntary confinement because she refused bedrest against her physician’s recommendation. Several days after her hospital incarceration, she suffered a miscarriage.

As these examples illustrate, nurses and doctors in these cases often act as interpreters of state law, although most lack any legal training. Increasingly, state statutes are the primary means by which legal norms affecting low-income pregnant women’s autonomy, privacy and liberty are introduced and shaped. Arrests, forced bedrest, compelled cesarean operations, and civil incarcerations imposed against pregnant women in Florida, Iowa, Indiana, Mississippi, South Carolina, Utah, Wisconsin, New Mexico, Alabama, and Texas scratch the surface of a broad attack on the reproductive liberty of pregnant women.

A range of laws, including feticide statutes enacted in 38 states, personhood legislation designating the unborn as persons for purposes of criminal prosecutions, fetal endangerment regulations, and laws that require pregnant women to be kept on life support for fetal benefit place pregnant women in opposition not only to their fetuses, but also to their doctors.

These laws fit a pattern of politically motivated legislation that misuses pregnant women’s medical crises as opportunities to legislate about reproduction. This type of legislation conflicts with pregnant women’s fundamental constitutional interests, including autonomy, liberty and privacy. State legislation forcing a pregnant woman to carry a fetus to term directly conflicts with the constitutional precedent established in Roe v. Wade and interferes with a fundamental constitutional principle that guarantees each individual liberty.

More frequently, hospitals and doctors are called upon to serve as interpreters of state law, as in Muñoz’s case, where hospital officials believed they were required to keep the pregnant woman on life support throughout the remainder of her pregnancy or until the fetus could function on its own, which would have been several months. Instead of preparing to remove Muñoz from life support as requested by her husband and her parents, hospital officials refused, citing a Texas law that prohibits healthcare providers from ending life support to pregnant patients.

Texas is one of more than two dozen states prohibiting removing life support from a pregnant woman. The Texas law is among the strictest in the nation. Other states, including Texas, Kentucky, South Carolina, Utah, and Wisconsin, “automatically invalidate a woman’s advance directive if she is pregnant.” A study published by the Center for Women Policy Studies explains that these laws “are the most restrictive of pregnancy exclusion” legislation, because regardless of fetal viability or the length of pregnancy, the laws require that a pregnant woman must “remain on life sustaining treatment until she gives birth.”

Muñoz’s case is not unfamiliar to legal scholars. Years before, Angela Carder, a pregnant cancer patient in Washington, DC was refused chemotherapy due to her pregnancy. Doctors in that case sought a court order to deny the urgently needed medical treatment, because Carder was pregnant and physicians feared the death of the fetus. In that case, a federal judge permitted doctors to perform a forced cesarean delivery. The fetus died two hours later, and Carder died two days later.

District Court Judge R. H. Wallace Jr.’s order to pronounce Marlise Muñoz dead is a symbolic victory for her family. As long as fetal protection laws exist, medical personnel will inevitably make mistakes causing pregnant women and their families significant pain and anxiety.

FRANK-Book-Pic-Medium-e1390314781757 From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in Slate on January 20th:

My Bubbie and Zada used to tell me my gentile friends wouldn’t hide me in another Holocaust. I like to think they were wrong (and that there won’t be another Holocaust). But that won’t stop me from invoking their wise spirit with a warning to conservative pundit Mary Matalin’s gay friends: She won’t hide you in a gay Holocaust.

The famously crabby GOP strategist shrugged off a growing human-rights crisis in Russia on Sunday with a glib dismissal of even discussing the anti-gay policy and violence there, just as the upcoming Sochi Olympic Games have finally brought much-needed mainstream media coverage to the problem. “I’m so sick of sports and politics,” she complained in response to questions from George Stephanopoulos, host of ABC’s This Week. Her bottom line? “All of my gay friends think [Putin] looks so buff in his shirtless publicity photos.” Mustering the ghosts of “Don’t Ask, Don’t Tell,” she asked about Putin, “Why is he even talking about this?” even though the obvious answer was that Putin was talking about it because Stephanopoulos had, quite properly, asked him about it, and later asked her too.

It was difficult to make out if Matalin was quoting someone else, but the intent of her comments was clear, and despicable: All this talk of gay suffering is boring, unimportant, and makes lots of us feel icky (the gay part, not the fact that they’re being persecuted), and the only response is not to clearly condemn it but to vomit out a gay stereotype such as the one about how gays only care about how men look shirtless—indeed, they can only see flesh and muscle even when a major country is unleashing a concerted campaign to vilify and dehumanize their people for political gain, giving the green light to mob violence.

This sort of response illustrates precisely why the head-in-the-sand, “don’t ask, don’t tell” approach can be dangerous and even deadly. The developments in Russia that Matalin was laughing off were a string of provisions passed last year—and their violent consequences—that punishes promotion or even discussion of homosexuality in a broadly defined set of scenarios. No, what’s happening there is not the Holocaust. But many observers have noted the eerie influence of the Nazi playbook, including the singling out of an unpopular minority for dehumanizing treatment, a campaign of terror unleashed by punitive laws and tough talk, and an autocratic leader’s use of blatant scapegoating to consolidate power and distract voters from his failed policies. And just as with America’s “Don’t Ask, Don’t Tell” policy, the result of the law’s passage was an uptick in violence and harassment against gays and lesbians.

One of the most pernicious aspects of the Russian campaign against sexual minorities also has eerie echoes of “Don’t Ask, Don’t Tell”: A law singles out a despised group for punitive treatment and then prohibits that group from speaking up to defend itself. That’s what makes Matalin’s dismissal of a journalist’s effort to ask pointed questions about the matter so maddening. And the taboo against even talking about homosexuality in polite company is a pattern all too familiar to American conservatism. Indeed, Matalin was not alone in in her dismissal of anti-gay persecution as unimportant. On the very same panel yesterday, conservative columnist Peggy Noonan exhibited clear relief when Stephanopoulos turned the focus away from gays and back to terrorism, saying “Oh, yes, that of course is the great issue that will overwhelm what we have been talking about”—as if she couldn’t stand to hear or utter a single word about something as small and awkward as gay suffering.

The taboo against even discussing homosexuality—particularly if the silence enables violence—provides an embarrassing link between American conservatism and Russian autocracy that must be called out for what it is: an abdication of the kind of moral responsibility that conservatives used to (and still try to) claim as their mantle.

Just so we’re absolutely clear on what the conservatives on the panel found too small and laughable to talk about: Laws passed last year in Russia ban any speech or writing “aimed at forming non-traditional sexual orientations, the attraction of non-traditional sexual relations, distorted conceptions of the social equality of traditional and non-traditional sexual relations among minors, or imposing information on non-traditional sexual relations which evoke interest in these kinds of relations.” As the bill was being debated, gay protesters were attacked by a mob of anti-gay thugs and then detained by police. Around the same time, a 23-year-old Russian was brutally beaten and murdered after coming out to “friends,” his genitals and head smashed with beer bottles and rocks, his clothing set ablaze.

As a result of the law, tourists have been arrested just for discussing homosexuality. In the months after its passage, the Guardian reported an upsurge in anti-gay violence across the country. Hate groups have lured gay people to unsafe areas where they are violated and humiliated—sometimes on camera—including having urine thrown on them, a historic mark of the kinds of dehumanizing campaigns practiced by the Nazis. Last fall, two men went on a shooting spree in a gay club in Moscow. The next week, the same club was attacked with poison gas.

Russian lawmakers have loudly accused gay people of threatening the country’s birthrate and proposed they be purged from government jobs, forced to get medical treatment, and even banned from the country (and at least two journalists have been fired for being gay). Putin himself, who insists that the law “does not hurt anyone” and that gays “are not discriminated against in any way” in Russia said last week that gay people would be safe at the Olympics next month but to “just leave kids alone please,” a wholly unveiled reference to gays being pedophiles.

The result of what’s clearly an official effort to villainize gay people has been a collective experience of terror, secrecy, shame, silence, and in some cases expatriation. And the Russian parliament, which also passed a law banning adoption of Russian children to gay foreigners, is now considering whether to pass additional laws that would strip Russians of their parenting rights if they are found to be gay.

This is what Mary Matalin tried to laugh off on American television yesterday with a crude and unfunny joke. Putin has promised that “none of our guests will have any problems” at the Olympics because of the law. That’s not terribly comforting, given the impossibility of quelling mob violence historically spurred by these kinds of hate campaigns. But it’s easy enough to suspend enforcement of a law when all the world is watching; the bigger problem is what happens after everyone’s gone home and the cameras are shut off. To Mary Matalin’s gay friends, if you exist, please help her understand just why it’s important to talk about a growing national campaign to persecute a despised minority in Europe. Meanwhile, please don’t run to Mary in a pinch.

Call for Interns for LGBT Research Project


Posted on January 2nd, 2014 by Cindy Gao
 1 comment  

Nathaniel Frank, an author and currently a Visiting Scholar at Columbia Law’s Center for Gender and Sexuality Law, is seeking part-time interns to work 5-10 hours per week (flexible) as research assistants on an exciting new LGBT research project being launched at Columbia Law School. A project description is below. The work, which could begin over winter break or in January, will consist chiefly of pulling together scholarly studies on LGBT research, specifically same-sex parenting and LGBT youth and health issues, and creating research briefs and abstracts for the studies. Nathaniel is author of “Unfriendly Fire,” the 2009 book about “don’t ask, don’t tell” that helped repeal the policy. While the preliminary work is unpaid, the positions offer the opportunity for future paid work and participation in the start-up project described below.

Please email a cover letter and CV to nathaniel@nathanielfrank.com.

“What We Know” Project Summary

The “What We Know” public policy research portal marks a path-breaking convergence of scholarship, public policy and new media communications. Focusing on several pressing public policy debates, the portal brings together in one place the preponderance of scholarly evidence that informs these debates so policymakers, journalists, researchers and the public can make truly informed decisions about what policies and positions best serve the public interest.

Part online library, part communications outreach apparatus, the project is designed to show, rather than tell, the public what the scholarly consensus is on a given issue by using modern technology to make bulk-information processing more viable and realistic for non-experts. The portal does not produce original research; instead it aggregates existing studies based on their quality and relevance to a particular policy question, summarizes the studies for quick reference, and provides easy links to the research (or abstracts) so readers can examine them for themselves.

The first phase focuses on research on LGBT equality, specifically gay parenting and marriage, youth challenges, and physical and mental health issues. Future phases may include additional policy issues such as economic growth, gun safety, education reform and possibly climate change, among others. The goal is to shape public policy in a “long game” that uses research-based messages to influence public opinion, law, and quality of life, particularly for vulnerable populations.

CRR-CLS Fellowship Opportunity – Deadline Extended!


Posted on December 17th, 2013 by Katherine Franke
 1 comment  

The deadline for the 2014-2016 Columbia Law School – Center for Reproductive Rights Fellowship (CRR-CLS Fellowship) has been extended to February 28, 2014!

The CRR-CLS Fellowship is an exciting opportunity for recent law school graduates who are interested in careers in teaching law. Please keep your eye out for promising scholars and keep in mind that experience in reproductive rights is not required. You can download the application here.

Here is our track record thus far:

 

Here is a little more information about the Fellowship:

The CRR-CLS Fellowship is a two-year, post-graduate fellowship offered by the Center for Reproductive Rights (the Center) and Columbia Law School (CLS). Those committed to women’s rights and/or human rights would be a great fit for this fellowship – although we don’t require experience in these areas. More than anything, this is a fellowship for serious emerging academics. Fellows will be affiliated with the Center and CLS, and will participate in the intellectual life of both programs. Applicants do not need to be graduates of Columbia Law School to be eligible for this program and do not need prior experience in reproductive rights.

The deadline for applications for the 2014-2016 cycle is now February 28, 2014.

If you would like to learn more about CRR’s Law School Initiative, which supports the Fellowship, please visit our website here; email the Senior Director of the Law School Initiative, Diana Hortsch, atdhortsch@reprorights.org; or email Columbia Law School’s Center for Gender & Sexuality Law, gender_sexuality_law@law.columbia.edu.

We would be grateful if you could forward these materials to your colleagues and to promising recent graduates interested in academic careers.

Naz Foundation: Reading Down the Supreme Court


Posted on December 13th, 2013 by Cindy Gao
 1 comment  

Sudhir Krishnaswamy, Dr. B.R. Ambedkar Visiting Professor of Indian Constitutional Law at Columbia Law School and Professor of Law at Azim Premji University, provides another response to the recent ruling in the Naz Foundation case.

There is no doubt that the two-judge bench in Suresh Kumar v Naz Foundation held that section 377 of the Indian Penal Code, 1860 which criminalizes ‘carnal intercourse against the order of nature’ is constitutionally valid.1 The Supreme Court overruled the 2009 Delhi High Court decision which had read down section 377 to exclude ‘consensual sexual acts of adults in private’ as a violation of Articles 21, 14 and 15 of the Constitution of India 1950.2 The Supreme Court judgment has sparked widespread outrage and discontent. In this short response I do not critically evaluate the quality or the correctness of the judicial reasoning in this case. Instead I propose that we should read down the judgment in two ways: first, to provide guidance to prosecutors to not prosecute consenting adults and secondly, to the court in review or hearing a subsequent case to re-evaluate the factual claims on which the core conclusions in this judgment rest.

We must begin by carefully noting what this judgment is not saying: nowhere in the judgment does the court take the view that LGBT people do not exist or that they are unworthy of moral and political respect. We do not hear the view that LGBT people are an invented minority3 or that we are engaged in a ‘culture war’ and the Indian people have the right to protect themselves against a ‘homosexual agenda’ – ‘a lifestyle that they believe to be immoral and destructive.”4 However, like Justice Scalia’s dissent in Lawrence v Texas, the court does conclude that the appropriate forum to settle this question is ‘the competent legislature [that] shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book.’5

Significantly, the rest of the judgment seems to reach factual conclusions similar to those reached by Justice Kennedy’s majority opinion in Lawrence6: that section 377 has not been enforced against consenting adults private sexual activity or that it targets the homosexual community. Like Bowers and unlike Texas the case before the Supreme Court was not one where the petitioner had been prosecuted under section 377, and the absence of sufficient evidence that the provision has been used to target homosexual conduct leads the court to sustain the constitutional validity of the statute on the grounds that no constitutional injury has been shown. In the rest of this post I show that these factual claims lie at the core of the courts conclusion in this case.

In paragraph 38 where Justice Singhvi reviews some reported judgments under section 377, the Court concludes that the section primarily applies to non-consensual acts where coercive violence is used. The court held that ‘in light of the plain meaning and legislative history of the section, … Section 377 IPC would apply irrespective of age and consent’ but ‘we are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults.’7. Paraphrased in this way the judgment seems to establish two propositions: first, that the record available to the court shows that section 377 ‘does not criminalize a particular people or identity or orientation.’ Secondly, if the record shows otherwise, that police and the prosecutors target homosexual people under section 377 where adult sexual conduct is consensual, then this court would void the Statute. Much of the judgment turns on the failure of the pleadings ‘to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them.’8 While the court fails to appreciate the concept of disparate impact discrimination arising out of a facially neutral statute more generally, it concludes that the available ‘details are wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.’9 So at least for the equality argument under Article 14 and 15, the court’s primary concern is the lack of factual evidence.

To be sure on the Article 21 analysis it appears that more relevant evidence would not control the conclusion. While the court embraces a substantive due process reading of the right to life and personal liberty it concludes that ‘harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community… is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.’10

In this brief post I suggest three reasons for reading down the Supreme Court judgment to narrowly rest only on the limited facts available in this case: prosecutorial discretion must be exercised to not target private sexual conduct of consenting adults in a discriminatory fashion, a review court may reassess these factual claims and potentially reach different conclusions and thirdly, a new challenge to section 377 that rests on a firmer factual foundation need not wait for 17 years it took for the US Supreme Court to move from its view in Bowers to that in Texas.

  1. http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070 []
  2. http://www.nazindia.org/judgement_377.pdf []
  3. http://nymag.com/daily/intelligencer/2013/08/scalia-thinks-gay-people-are-invented-minority.html []
  4. http://www.law.cornell.edu/supct/html/02-102.ZD.html []
  5. paragraph 56 []
  6. http://www.law.cornell.edu/supct/html/02-102.ZO.html []
  7. paragraph 38 []
  8. paragraph 40 []
  9. para 40 []
  10. paragraph 51 []

Professor Suzanne B. Goldberg Says the Ruling Endangers Human Rights of LGBT Indians.

 

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

New York, December 12, 2013—A ruling by India’s Supreme Court Wednesday reinstating a colonial-era law banning gay sex “bends the arc of the moral and legal universe… away from justice,” Columbia Law School Professor Suzanne B. Goldberg wrote in a response to the decision.

The Indian high court’s opinion reverses a 2009 lower court ruling declaring the law unconstitutional. Known as Section 377, the law demands imprisonment for anyone who “voluntarily has carnal intercourse against the order of nature.” It has been used—repeatedly and damagingly—against members of the gay, lesbian, bisexual, and transgender communities in India.

“In finding that the Indian Constitution does not protect the right of consenting adults to engage in sexual intimacy, the two-judge panel cut directly against the overwhelming trend in courts around the world to reject these kinds of laws as violating basic individual rights to privacy and equality,” Goldberg wrote on the Gender and Sexuality Law Blog run by Columbia Law School’s Center for Gender and Sexuality Law, which Goldberg co-directs.

Goldberg compared the outrage following the decision to protests in the United States in the wake of Bowers v. Hardwick, a 1986 U.S. Supreme Court ruling upholding a sodomy law in Georgia.

The response to the Indian Supreme Court’s action is a signal the decision “reflects the nation’s past but does not likely reflect the future,” Goldberg wrote.

Goldberg, a former senior staff attorney at Lambda Legal Defense, is an expert in gender and sexuality law. She served as co-counsel in Lawrence v. Texas, a 2003 decision overturning Bowers, and Romer v. Evans, a 2006 case invalidating a Colorado law blocking anti-discrimination protections for gay people.

View Goldberg’s blog post, which has since been republished at the Huffington Post.

Sudhir Krishnaswamy, Dr. B.R. Ambedkar Visiting Professor of Indian Constitutional Law at Columbia Law School and Professor of Law at Azim Premji University, has also issued a response to the case.

To speak to Goldberg, please call the Columbia Law School Public Affairs Office at 212-854-2650, email publicaffairs@law.columbia.edu, or contact her directly via the information on her faculty bio page. The Law School also has a studio on campus equipped with an ISDN line and IFB capability for radio and television interviews. Please contact the Public Affairs Office for bookings.

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Defies Global Constitutional Trend While Sparking Outrage that Holds Promise for a Different Future

 

By Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School and Director of the Center for Gender and Sexuality Law 

The arc of the moral and legal universe bent away from justice early Wednesday when the Supreme Court of India upheld India’s colonial-era law that criminalizes sexual relations between same-sex partners.  The decision, in Suresh Kumar Koushal v. Naz Foundation, reverses a 2009 Delhi High Court ruling that declared the law unconstitutional.

The law, known as Section 377, demands imprisonment for anyone who “voluntarily has carnal intercourse against the order of nature.”  Although the law itself does not precisely define all of the covered acts, it has been used – repeatedly and damagingly – against members of the gay, lesbian, bisexual and transgender communities in India.

In finding that the Indian Constitution does not protect the right of consenting adults to engage in sexual intimacy, the two-judge panel cut directly against the overwhelming trend in courts around the world to reject these kinds of laws as violating basic individual rights to privacy and equality.  Although there was some cause for concern even before the decision was handed down because one of the two justices is well known to be conservative, it was hard to imagine, even yesterday, that such a retrograde ruling could take effect in the second most populous nation in the world.

It is often hard to find a silver lining in a terrible legal loss, particularly so soon after a decision has come down, but one seems to be emerging already in the widespread fury – across much of India – at the Court’s ruling.  (Some signs of change were already in place well before today as evidenced by the government’s decision not to appeal the Delhi High Court ruling.  Today’s decision responded instead to an appeal by a number of Indian religious leaders and organizations.)

But if there was any question about where things are headed, the outpouring in today’s media makes clear that the decision reflects the nation’s past but does not likely reflect the future.  Government officials have announced their commitment to seeking legislative repeal, with one commenting that the ruling imposed a “medieval mindset” on the nation.  The largest English language newspaper, The Times of India, likewise condemned the ruling as a “body blow to the very idea of individual choice,” and as one that “gives the police one more excuse to harass, extort and jail law-abiding people whose only ‘crime’ is that they do not conform to the traditional view of sexuality.”

Nearly 30 years ago, the U.S. Supreme Court issued a similarly hideous ruling, upholding Georgia’s sodomy law because it served the “legitimate interest” of moral disapproval of homosexuality.   That ruling caused grievous harm to many lesbians, gay men, bisexuals, and transgender individuals, just as the Indian Supreme Court ruling will surely do.  But the outrage that the ruling prompted was also reminiscent of the outrage across India today, and with that, comes some promise that the arc of the universe – and in particular, of Indian law – will bend once again toward justice, with hope that that comes before long.

In Written Testimony, Columbia Law School Professor Katherine Franke Argues Proposed Changes Replacing Broad Definition of Family Member With the Term “Spouse” Undermine Support for Diverse Family Structures and Amount to Marital Discrimination

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

New York, November 6, 2013—The New York City Department of Housing and Preservation Development should not be allowed to limit succession rights of affordable housing for low- to middle-income tenants to legal spouses, Columbia Law School Professor Katherine Franke, director of the Center for Gender and Sexuality Law, argued today in written testimony to the department.

The department has proposed eliminating a broad definition of “family member” used by the city in the Mitchell-Lama housing program, which was enacted in 1955 to support the development and building of affordable housing for low- to middle-income tenants. In a notice dated Oct. 4, the department proposes substituting “spouse” for the functional definition of family member that has been in place for almost a quarter century.

“We are well beyond the day when a public entity can limit access to a program such as the Mitchell-Lama program with such a narrowly defined conception of family. The proposed amendment’s limitation in the ability to gain or retain access to Mitchell-Lama housing rights marks a step backward in the well-accepted recognition of a broad diversity of families in New York City,” Franke said in her testimony.

Rather than limiting the notion of family to people who are related by blood or marriage, the current definition of “family member” contained in city law provides a set of factors such as the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services. Franke was part of the legal team that established the broad definition of “family member” under the New York State Constitution in 1989 in a case decided by the New York Court of Appeals, Braschi v. Stahl Associates.

Franke argues recent judicial rulings in favor of marriage rights for same-sex couples should not be used to justify the rule change. In fact, many heterosexual and non-sexual families will be negatively impacted as well if the proposed changes go into effect.

“Gains in the right to marry for same-sex couples should not entail a contraction in the rights enjoyed by New York City residents – whether gay or straight – who have formed other non-marital partnerships and families,” Franke wrote. “It is wrong-headed for the City to collapse the right to marry into a requirement that people must marry in order to gain or retain benefits for their partners.”

Submitted jointly with Queers for Economic Justice, a non profit organization located in New York City that advocates for the economic rights of a broad array of families, the testimony urges HPD to withdraw the proposed regulations limiting property rights in the Mitchell-Lama program to legal “spouses.”

Read the testimony.

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Amicus Brief Filed in the 9th Circuit Court of Appeals Argues Exclusion of Lesbian and Gay Couples From Marriage Violates U.S. Constitution’s Equality and Due Process Guarantees

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

Brief can be viewed here.

Full Press Release can be viewed here.

New York, October 25, 2013—The 9th U.S. Circuit Court of Appeals should find that bans on marriage for lesbian and gay couples in Nevada and Hawaii violate the Constitution’s guarantees of liberty and equal protection under the law, the Columbia Law School Sexuality and Gender Law Clinic argues in an amicus brief filed with the court today.

The Clinic’s brief supports the claims of Beverly Sevcik and Mary Baranovich and seven other same-sex couples from Nevada, and Natasha Jackson and Janin Kleid of Hawaii, who challenge their exclusion from marriage in their respective states. Sevcik and Baranovich are grandparents and have been together since they exchanged rings more than forty years ago.

“This nation’s promise is equality for all, not equality for some,” said Columbia Law School Professor Suzanne B. Goldberg, who directs the Sexuality and Gender Law Clinic, and is the brief’s primary author. “This promise applies with special importance to the right to marry, which has long been understood as a key part of our individual liberty.”

The Clinic’s brief demonstrates that the history of the 14th Amendment and a string of U.S. Supreme Court cases—including the historic June decision in U.S. v. Windsor striking down the main provision of the federal Defense of Marriage Act—make clear that all people have equal access to rights that have been deemed fundamental.

The right to marry is “defined by the content of the protected conduct, not by who exercises [this] right,” the brief argues. “Far from advancing the institutions of marriage and family, the state law that grants the right to marry to some but not others demeans the right’s fundamental character and robs that right of its core meaning.”

Columbia Law School students and Clinic participants Sara Nies ’14 and Rosie Wang ’14 assisted in writing the brief, together with co-counsel Rita Lin and Laura Weissbein of Morrison & Foerster. The cases are Sevcik v. Sandoval and Jackson v. Abercrombie.

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