Category: Feminism and Gender

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A Historian’s Comments on Katherine Franke’s Wedlocked

In Wedlocked: The Perils of Marriage Equality legal scholar Katherine Franke compares the African American experience with marriage in the wake of the Civil War, with the quest for marriage equality for queers. Relying on a wide variety of archival sources and the experiences of lawyers specializing in queer family law, Franke details the problems that African Americans faced in their first encounters with marriage, drawing vital conclusions about the care queer people should take when we consider the implications of our newly won right to marry. As Franke so astutely asks, why should queers, who only recently gained the right to be free of state criminalization of our sexual lives in Lawrence v. Texas (2003), immediately invite the state to regulate those newly gained sexual freedoms through the institution of marriage? This question seems especially important given the profoundly gendered nature of Anglo-American marriage. Why would a people, who, by the very nature of our desires, trouble the gender binary, sign up for an institution that has historically been premised on it? Marriage, as Franke states, has “its own well-entrenched agenda” and thus “is a particularly value-laden institution within which to lodge claims for full citizenship.” (143)

Franke frames each chapter with a discussion of African Americans initial experiences with marriage, and thus, with the state. Rather than freeing black families to organize their families as they pleased, she finds that marriage instead opened them up to new forms of white violence, domination and control. For example, in the wake of the Civil War, Franke demonstrates that many states automatically married African Americans who lived in relationships that appeared “marriage-like” without their consent, or at times, even knowledge. People who had been living together in a variety of arrangements suddenly found themselves actually married. This preemptory state move did have some positive effects. After all, marriage licenses cost money– money that most couples in desperately impoverished African American community did not have. However, this also resulted in couples who had no intention of marrying, or any knowledge of the legal requirements of marriage, ending up married.

These automatic marriages opened African Americans to state discipline when they violated the laws governing marriage, such as monogamy and the need for divorce when ending relationships. This proved particularly devastating when the state, often at the instigation of jilted partners, began to prosecute African Americans for crimes directly related to their status as married or unmarried people—bigamy, adultery and fornication. Franke speculates that southern state governments bent on maintaining white supremacy, might have deliberately used violations of marriage law to deprive African American men of the vote, as many states then and now, had laws that disfranchised felons. Even more pernicious, she also wonders if states may have been motivated to prosecute African American men to pull them into the convict lease system. Convict lease, the use of convicts as unpaid laborers for either private or state projects, became a virulently exploitative form of labor discipline directed against African Americans well into the twentieth century.

Franke’s second major point revolves around the formation of alternative structures of family in both the African American and queer communities. Slave law (which traced descent through the mother) combined with traditions brought from West Africa, made slave families broadly matrilineal and matrilocal. Furthermore, the pressures of slavery, particularly the need for abroad marriages (husbands and wives who lived on separate plantations) and forced separation through sale, produced both polygamy (also found in West Africa) and serial monogamy. Finally, the disruptions of slavery encouraged a commitment to much broader family ties among slaves than among whites in the antebellum period. Slave communities relied both on extended kin, particularly aunts and grandmothers, and on what anthropologists call “chosen kin,” people with no blood ties who nevertheless take on family responsibilities. Historians have argued that this diversity of family forms encouraged resiliency among both individuals and the broader African American community.

While feminist historians have rightly cast these differences in a positive light (feminist evolutionary biologists point out that matrilineality produces better child outcomes than other systems), Franke demonstrates how whites (then and now) used diversity in family forms as proof of African American’s racial inferiority. Because they did not or could not always follow the “ideal” nuclear family form with a breadwinning husband and an economically dependent wife, whites consistently denied African American humanity. Denigrating them as inherently “immoral” people who had disorganized and dysfunctional families, whites in the 19th century argued against African American claims for citizenship rights.

Like African Americans, queers have developed a variety of family forms and embrace a much broader definition of family membership. Historically, queer couples, particularly men, have negotiated rather than assumed monogamy, even in long term relationships. Queers also rely extensively on “chosen families” made up of friends and ex-lovers. Finally, when they have children, queers deploy a number of strategies that, Franke points out, stretch the boundaries of legal definitions of families. In addition to the more “homonormative” (to borrow Lisa Duggan’s apt term) choices like couples adopting children, or having a child through ART, some queer folk create families with more than two parents. A lesbian couple, for example, who ask a gay male friend to provide sperm, might also ask him to be a “duncle” (donor uncle) who maintains a relationship with the child that, while not like a father, still provides important support and love. There are a myriad of ways in which queer families strain the traditional legal definitions of family with alternative models that, like strategies among African American, increase our resiliency.

Given these shared characteristics, Franke cautions queers about the dangers that marriage may pose to these much broader family ties. First, she points out, marriage would not protect any of these relationships. The fact that a lesbian couple could marry, for example, would do little to solidify their gay donor’s relationship to their child, much less, say, that of his siblings who may well be functioning as a third set of aunts and uncles. Second, Franke points out that the marriage equality movement itself has cast families not based on marriage as inferior and dysfunctional in order to emphasize the harm produced by policies that restrict marriage to one man and one woman. In their attempts to win marriage equality, she argues, proponents for marriage equality have thrown the rest of our family forms under the married nuclear family bus.

Finally, the granting of marriage equality has, in many states, actually damaged the ability of people to protect family members through means other than marriage.   In many states that have granted gay marriage, legislatures and private institutions have eliminated with domestic partnership registries or benefits. This denies all couples the right to choose between marriage and other kinds of relationships. As Franke points out, some couples may not be interested in the full set of responsibilities contained in marriage, but may still want the more limited set of benefits that derive from domestic partnership. Among other things, while marriage is easy, divorce can be difficult and expensive. Many couples may want to be recognized as partners, but might not be ready for marriage and the attendant risk of spending a lot of money should they break up. All in all, Franke is absolutely right that marriage does not solve all of our complex family problems, and in fact, when not thought through carefully, it may increase them. She argues persuasively for more choices in our family forms, rather than fewer.

Since I have been brought on board as the pet historian, I do feel I must add a little historical context to Franke’s text. Her arguments about the dangers of marriage are apt, but she provides little explanation, beyond a desire for “equality,” as to why the queer community turned to marriage. This leaves the reader wondering why in the world we would pursue such clearly problematic strategy, especially since, as Franke rightly indicates, gay liberation and feminist activists of the 1970s rejected marriage as an oppressive institution. The answer, of course, lies in the very real family crises the queer community confronted in the 1980s. As historian George Chauncey argues, both the lesbian baby boom and the AIDS epidemic forced the queer community to confront the problems attendant to having no easy way to legally acknowledge our family ties. Issues of custody, medical decision making, benefits and inheritance compelled us to turn to marriage as a one-stop-shopping for family rights in the context of the life and death decisions we confronted. In fact, had U.S. law not attached so many rights and benefits to marriage, it seems unlikely queers would have pursued marriage as a goal. (Chauncey, Why Marriage, 87-136))

To me, the most interesting part of Franke’s argument lies in the discontinuities rather than continuities between African American experience in the wake of the Civil War, and contemporary queer experience. She expected, for example, that queers, like African Americans, would experience an upsurge in discrimination and hostile attention from the state upon marriage. But this has, she freely admits, largely failed to happen. Similar to African Americans who brought their spouses before the courts for adultery, some queers have used the rules of marriage (and particularly the assumption of monogamy) to disadvantage ex-partners in matters of child custody and property settlement. She also has found a revival of interest among conservative lawmakers to strengthen (rather than doing away with) state laws against sex crimes like fornication and adultery, which are rarely enforced but remain on the books. However, Franke did not find that states used these laws disproportionately against queer people in the wake of queer marriage victories, as states did against African Americans in the 19th century.

Franke attributes this difference to the way gayness, and by extension, marriage equality, have broadly been seen as white, even if, in fact, many people of color identify as queer. She points out that most of leadership of “big gay” organizations are white and middle class, as have been the majority of plaintiffs in gay marriage cases. This perceived whiteness has increased the respectability of the movement, perhaps to the detriment of African American families, who have been unable, as hard as they try, to shed racist stereotypes of family disorganization and dysfunction.

Second, Franke argues that seeking civil rights through marriage itself represents a “traditional,” perhaps even conservative path. Marriage equality advocates have argued that they should be allowed to participate in marriage as it is currently defined. They have not, for example, pointed out the myriad of ways having two men, or two women, marry might challenge the deeply gendered nature of the institution itself. As she explains, “when the conservatives sign up for marriage equality, they do so because it dawns on them that their interests in traditional family values, in the nuclear family, in privatizing dependency, and in bourgeois respectability are stronger than their homophobia.” (203). Gay marriage, she argues, has allowed gays to take the “sex” out of “homosexuality.” It has allowed us to make homosexuality about family, intimacy and caregiving, rather than various kinds of stigmatized sexual activities, which, she and I both agree, continue to be fun, and worthy of championing.

Franke then raises, but does not answer, the essential question of why blackness has continued to carry such negative valences, even as queers have been able to “rebrand” homosexuality as family friendly, all-American and not really about sex at all. Here, my work on the relationships between gays and family in the post-war period may provide us an answer. Very broadly, I argue that the gay community’s strategy for gaining social acceptance put family bonds to the work of destigmatizing homosexuality.

“Coming out,” first popularized with gay liberation in the early 1970s, asked queer people to tell family and friends about their sexual orientation. The idea was that this would liberate them as individuals, but that it would also liberate the community by challenging heterosexual family members to rethink long held negative stereotypes about homosexuality. Furthermore, once out, the lived experience of queers in America exposes our kin to the depth of hostility and discrimination we face. However, the intense racial segregation of most American cities, ensures that we continue to live, work, and go to school with our own racial groups. U.S. public policy in the 20th century, particularly the Federal Housing Authority, actively promoted segregation, denying both whites and racial minorities the opportunity to live and go to school together, and therefore to know each other in intimate and productive ways. This is one of the many forms of systemic racism white Americans continue to ignore. Deploying kin and the bonds of love in the service of liberation has been a tremendously successful strategy for queers, and it explains why we, as Americans have come so far in such a short period of time on issues of sexual diversity, but have, at the same time, failed to make much progress addressing race, racism, and profound racial disparities.

Franke’s text is a reminder to the queer community that we are at a political and moral crossroads. While we still face some forms of discrimination, particularly the violence directed at trans folk, the fortunes of gender normative queer people have risen substantially. Having engaged in so much creative work around family, equality, and liberty over the last fifty years, we must now choose whether to retreat with our (now) homonormative families to the white suburbs, or to continue the fight for greater equality for all Americans. We know the vicious sting of discrimination, and we know what it’s like to fight desperately for our families as we define them. The question is, will we take those lessons into the fights against poverty and racism? History will judge us in the alliances we make, and the battles we bring. Like Franke, I would like to see us to continue in our queer battle to support all families, not just the ones we can defend through marriage.

 

The Emerging Law of Algorithms, Robots, and Predictive Analytics

In 1897, Holmes famously pronounced, “For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” He could scarcely envision at the time the rise of cost-benefit analysis, and comparative devaluation of legal process and non-economic values, in the administrative state. Nor could he have foreseen the surveillance-driven tools of today’s predictive policing and homeland security apparatus. Nevertheless, I think Holmes’s empiricism and pragmatism still animate dominant legal responses to new technologies. Three conferences this Spring show the importance of “statistics and economics” in future tools of social order, and the fundamental public values that must constrain those tools.

Tyranny of the Algorithm? Predictive Analytics and Human Rights

As the conference call states

Advances in information and communications technology and the “datafication” of broadening fields of human endeavor are generating unparalleled quantities and kinds of data about individual and group behavior, much of which is now being deployed to assess risk by governments worldwide. For example, law enforcement personnel are expected to prevent terrorism through data-informed policing aimed at curbing extremism before it expresses itself as violence. And police are deployed to predicted “hot spots” based on data related to past crime. Judges are turning to data-driven metrics to help them assess the risk that an individual will act violently and should be detained before trial. 


Where some analysts celebrate these developments as advancing “evidence-based” policing and objective decision-making, others decry the discriminatory impact of reliance on data sets tainted by disproportionate policing in communities of color. Still others insist on a bright line between policing for community safety in countries with democratic traditions and credible institutions, and policing for social control in authoritarian settings. The 2016 annual conference will . . . consider the human rights implications of the varied uses of predictive analytics by state actors. As a core part of this endeavor, the conference will examine—and seek to advance—the capacity of human rights practitioners to access, evaluate, and challenge risk assessments made through predictive analytics by governments worldwide. 

This focus on the violence targeted and legitimated by algorithmic tools is a welcome chance to discuss the future of law enforcement. As Dan McQuillan has argued, these “crime-fighting” tools are both logical extensions of extant technologies of ranking, sorting, and evaluating, and raise fundamental challenges to the rule of law: 

According to Agamben, the signature of a state of exception is ‘force-of’; actions that have the force of law even when not of the law. Software is being used to predict which people on parole or probation are most likely to commit murder or other crimes. The algorithms developed by university researchers uses a dataset of 60,000 crimes and some dozens of variables about the individuals to help determine how much supervision the parolees should have. While having discriminatory potential, this algorithm is being invoked within a legal context. 

[T]he steep rise in the rate of drone attacks during the Obama administration has been ascribed to the algorithmic identification of ‘risky subjects’ via the disposition matrix. According to interviews with US national security officials the disposition matrix contains the names of terrorism suspects arrayed against other factors derived from data in ‘a single, continually evolving database in which biographies, locations, known associates and affiliated organizations are all catalogued.’ Seen through the lens of states of exception, we cannot assume that the impact of algorithmic force-of will be constrained because we do not live in a dictatorship. . . .What we need to be alert for, according to Agamben, is not a confusion of legislative and executive powers but separation of law and force of law. . . [P]redictive algorithms increasingly manifest as a force-of which cannot be restrained by invoking privacy or data protection. 

The ultimate logic of the algorithmic state of exception may be a homeland of “smart cities,” and force projection against an external world divided into “kill boxes.” 


We Robot 2016: Conference on Legal and Policy Issues Relating to Robotics

As the “kill box” example suggests above, software is not just an important tool for humans planning interventions. It is also animating features of our environment, ranging from drones to vending machines. Ryan Calo has argued that the increasing role of robotics in our lives merits “systematic changes to law, institutions, and the legal academy,” and has proposed a Federal Robotics Commission. (I hope it gets further than proposals for a Federal Search Commission have so far!)


Calo, Michael Froomkin, and other luminaries of robotics law will be at We Robot 2016 this April at the University of Miami. Panels like “Will #BlackLivesMatter to RoboCop?” and “How to Engage the Public on the Ethics and Governance of Lethal Autonomous Weapons” raise fascinating, difficult issues for the future management of violence, power, and force.


Unlocking the Black Box: The Promise and Limits of Algorithmic Accountability in the Professions


Finally, I want to highlight a conference I am co-organizing with Valerie Belair-Gagnon and Caitlin Petre at the Yale ISP. As Jack Balkin observed in his response to Calo’s “Robotics and the Lessons of Cyberlaw,” technology concerns not only “the relationship of persons to things but rather the social relationships between people that are mediated by things.” Social relationships are also mediated by professionals: doctors and nurses in the medical field, journalists in the media, attorneys in disputes and transactions.


For many techno-utopians, the professions are quaint, an organizational form to be flattened by the rapid advance of software. But if there is anything the examples above (and my book) illustrate, it is the repeated, even disastrous failures of many computational systems to respect basic norms of due process, anti-discrimination, transparency, and accountability. These systems need professional guidance as much as professionals need these systems. We will explore how professionals–both within and outside the technology sector–can contribute to a community of inquiry devoted to accountability as a principle of research, investigation, and action. 


Some may claim that software-driven business and government practices are too complex to regulate. Others will question the value of the professions in responding to this technological change. I hope that the three conferences discussed above will help assuage those concerns, continuing the dialogue started at NYU in 2013 about “accountable algorithms,” and building new communities of inquiry. 


And one final reflection on Holmes: the repetition of “man” in his quote above should not go unremarked. Nicole Dewandre has observed the following regarding modern concerns about life online: 

To some extent, the fears of men in a hyperconnected era reflect all-too-familiar experiences of women. Being objects of surveillance and control, exhausting laboring without rewards and being lost through the holes of the meritocracy net, being constrained in a specular posture of other’s deeds: all these stances have been the fate of women’s lives for centuries, if not millennia. What men fear from the State or from “Big (br)Other”, they have experienced with men. So, welcome to world of women….

Dewandre’s voice complements that of US scholars (like Danielle Citron and Mary Ann Franks) on systematic disadvantages to women posed by opaque or distant technological infrastructure. I think one of the many valuable goals of the conferences above will be to promote truly inclusive technologies, permeable to input from all of society, not just top investors and managers.

X-Posted: Balkinization.

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Parent-Partners and Intimate Partner Violence

Professor Merle Weiner’s proposal for a parent-partner status in American family law is novel and intriguing, and her exhaustively researched book makes a persuasive case for seriously considering the adoption of such a status. But because my principal preoccupation is intimate partner violence, I have to admit that it worries me. Weiner’s status would obligate parents to refrain from abusing each other (an obligation that already exists by virtue of both criminal and civil law, but is still too frequently breached) while at the same time requiring them to engage in relationship work both at the start of the parenting relationship and at the time when the romantic relationship ends (which assumes there has been a romantic, rather than short sexual, relationship between the parties). I immediately began to have doubts: how would the non-abuse and relationship provisions coexist in relationships marked by intimate partner violence?

Because Professor Weiner has long been thoughtful about intimate partner violence, she anticipated my concerns. In fact, Professor Weiner contends, the parent-partner status will provide greater protection for people subjected to intimate partner violence, not less. She proposes changes to both criminal and civil law that she believes would better protect parent-partners. Moreover, she makes it clear that the relationship work requires only that a parent attend counseling or an educational program at the other parent’s request. She is careful to note, too, that in the case of a child conceived through rape, the obligations between parents flow only one direction: from the rapist to the victim.

Professor Weiner argues that including the duty not to abuse in the parent-partner status sends an important normative message, recognizing both that “abuse between parent-partners is more common and more serious than violence between others in intimate relationships” and that the legal tools currently deployed to address that violence are in many ways inadequate. Professor Weiner’s solution is to expand the reach of both the civil and criminal law. On the civil side, Professor Weiner would ensure that protection orders enjoining both physical and psychological abuse are available to parent-partners from conception onward. On the criminal side, Professor Weiner would specifically criminalize parent-partner physical abuse.

Professor Weiner’s proposal to expand the definition of abuse in the context of civil protection orders recognizes the harm that psychological abuse inflicts; as she notes, many people subjected to abuse find psychological harm much more damaging than physical violence. Some states already authorize the entry of protective orders for some forms psychological abuse, and many scholars have argued that legal definitions of domestic violence should include psychological abuse. Nonetheless, there is reason to be cautious about embracing the proposal, as Professor Weiner recognizes. Without carefully defining what constitutes psychological abuse, some fear that an expanded definition of abuse could fail to distinguish between coercively controlling psychological abuse and garden variety nagging or name-calling. Extending eligibility for protective orders too broadly could also create unnecessary family litigation and overwhelm the courts, leaving judges with even less time and patience with which to address cases of serious intimate partner violence. Professor Weiner has more faith than I do that state legislators can and will craft these definitions in a way that will target only the behavior she hopes to capture, without creating a tool that perpetrators of intimate partner violence can use to harass and abuse their partners.

Professor Weiner also proposes that states create a new crime of abuse of a parent-partner. Professor Weiner notes that there is an ongoing debate about the efficacy of the criminal justice response to domestic violence. Since 1984, criminal justice interventions have been the primary response to domestic violence in the United States, a policy choice bolstered by the passage of the Violence Against Women Act. Hundreds of millions of dollars of federal money have been poured into the criminal justice system since 1994. And rates of domestic violence have fallen since 1994. Between 1994 and 2000, rates of domestic violence fell in tandem with the decrease in the overall crime rate; between 2000 and 2010, however, rates of domestic violence fell less than the decrease in the overall crime rate, notwithstanding the money and effort dedicated to the criminal justice response. There is no social science evidence to suggest that the criminal justice response has had an appreciable impact on domestic violence rates or has deterred abusers from committing acts of violence. Moreover, some scholars have argued that criminalization does more harm than good, both in the way that the legal system imposes itself upon victims of violence and in the damage done to perpetrators, many of whom are low income men of color, and their communities.

While Weiner sidesteps the issue of the efficacy of the criminal justice response, stating that “the wisdom of making the parent-partner relationship more relevant to the prosecution of behavior that is already criminal is a separate issue from whether a criminal law response is appropriate at all,” the act of proposing a new crime shows Weiner’s faith in the power of criminal justice intervention. Expanding the criminal law gives credence to the idea that criminal justice interventions are effective in addressing intimate partner violence. But there is no reason to believe that creating a new crime based on the parent-partner status will be any more of a deterrent than the prospect of incarceration for the many intimate partner violence crimes currently on the books has been. Diverting time and attention away from developing alternatives to the ineffectual criminal justice response to intimate partner violence by putting that effort into passing new criminal laws is simply bad policy and will not benefit the parents or children that Weiner hopes to help.

The parent-partner status could significantly benefit one category of victims of intimate partner abuse, however. Recognizing a parent-partner status could decrease the stigma experienced by women who want to maintain relationships with their abusive current or former partners or who appreciate their partners’ parenting skills even if they don’t want to stay in relationships. Many people subjected to abuse want to continue to have some relationship with their partners—they simply want the violence to stop. Professor Weiner recognizes this reality, and her suggestion that all states provide protective orders that allow for continued contact between the parties while enjoining further violence is a good one.

The requirement that parent-partners engage in relationship work raises obvious concerns. Professor Weiner is careful to note that one parent cannot force the other to remain in the relationship, and that “the educators and counselors must ensure that batterers are not using the obligation of relationship work as a way t gain access to and control over the other parent.” But even the requirement that a parent attend an information session will feel unduly onerous to a victim of violence who does not want to have any contact with a former partner and who knows that the abuser is using the requirement to harass or harm or fears that somehow, the abusive partner will be able to establish contact through the relationship work requirement. Allowing victims of violence to opt out of the relationship work requirements seems to me the only way to ensure that people subjected to abuse are truly protected from the harm that this requirement could cause.

A consensus that American family law should be organized around children’s well-being, and that ensuring well-being requires strengthening connections between parents, seems to be emerging among family law scholars. Professor Weiner comprehensively lays out the case for taking this approach, and in many ways, her argument is persuasive. But there are downsides to this choice, and one of them is the relative lack of concern for the rights and interests of adults, particularly adults who have been subjected to domestic violence. Although we pay lip service to protecting parents who have been subjected to abuse, a number of recent child-centered developments in the family courts, including friendly parent provisions, custody evaluation, parenting coordination, and mediation, have been criticized as not sufficiently attentive to the needs of victims of violence. As Professor Weiner acknowledges, although most courts purport to screen for domestic violence prior to ordering these services, screening is often slipshod, and many people subjected to abuse choose, for whatever reason, not disclose to court personnel.
Professor Weiner urges us to move forward with her proposals although “[u]ncertainties remain and unanswered questions exist.” And she’s right that if we wait to answer every question, change will never be made. Nonetheless, however appealing the theory is, without some certainty as to the effectiveness of the measures Professor Weiner proposes to protect people subjected to abuse, it may be difficult for those of us concerned about these issues to seriously commit to the parent-partner status.

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The Limits of Relationship Work

Merle Weiner’s book, A Parent-Partner Status for American Family Law, is a tremendously important contribution to the debate about how to strengthen families and improve outcomes for children. At a time when families are rapidly changing and marriage is of dwindling importance in some communities, it is imperative to think anew about how to support a wide range of families. Weiner’s proposal for a new parent-partner status is a bold and welcome addition to this debate.

Weiner proposes five core legal obligations that would attach to the parent-partner status. Three of these obligations are incremental changes to existing law—a duty to aid regardless of marital status, a heightened duty of loyalty in contracting, and additional protections against domestic violence for parent-partners. These obligations strike me as reasonable and would seem to further Weiner’s goal of inculcating stronger ties between parents. A fourth obligation—financial compensation for a parent who does a disproportionate share of the physical caregiving—usefully builds on existing law as well as the proposals in the ALI Principles of the Law of Family Dissolution, which Weiner convincingly critiques. Together, these obligations would formalize a status that exists currently in the interstices of family law, which is itself a positive step forward.

It is Weiner’s final obligation that, at least at first glance, appears to be a major departure from existing law. She proposes that parent-partners have a legally enforceable obligation to engage in “relationship work”—counseling, education, and so on—both at the time a child is born and if the parents’ romantic relationship ends. The relationship work at the first juncture is intended to help parents navigate the stressful transition to parenthood. The relationship work at the time of dissolution contemplates reconciliation as a first measure. If, after considering the impact of the dissolution on the child, the couple still proceeds to break up, then the relationship work would focus on helping the couple remain friends while ending their romantic relationship.

This obligation would not be enforced by a third party, but one parent-partner could seek a court order to enforce the obligation against the other parent-partner. A court could not require a resistant parent to engage in the actual relationship work but could order the parent to attend an educational session touting the benefits of relationship work. Weiner believes creating an enforceable legal obligation does not necessarily mean parties will flock to the courts to seek enforcement but rather that it “should help couples internalize the value of relationship work and the social expectation of participation.” (p. 358)

Weiner claims that the “proposal is not as radical as it may sound” (p. 352). It is true, as Weiner notes, that both the federal and state governments are already involved in some form of relationship work: mandating mediation for custody and visitation disputes, requiring co-parenting education classes for separating and divorcing couples, and funding programs designed to strengthen family relationships, such as the federal Responsible Fatherhood program.

As I elaborate below, her proposal differs from these kinds of programs in meaningful ways, and therefore I think it is a significant departure. But audacity alone is not a problem. The real question is whether the proposal is good policy.

I am not so sure. In my own work, I, too, have argued that if the law wants to improve the vertical relationship between a parent and child, it needs to focus on the horizontal relationship between the two parents. Whether and how the parents get along deeply affects the ability of each parent to provide a child with the time and attention needed for healthy child development. Further, I have argued in favor of the kinds of programs that Weiner’s proposal builds on, particularly co-parenting classes for parents at the end of a romantic relationship. (I have also proposed a legal status that would attach at birth, which I called co-parent status, but whereas I dedicated a short section of a long law review article to the idea, Weiner has dedicated an entire book; therefore I want to focus on her proposed status, not mine.)

So why am I resistant to Weiner’s proposal while seeming to promote many of the same ideas? Read More

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FAN 74.1 (First Amendment News) First Amendment Salon goes to L.A. — Chemerinsky & Volokh discuss Roberts Court & First Amendment . . . & more!

It was a remarkable late-afternoon program yesterday as the First Amendment Salon went on the road for the first time with an event held at the Los Angeles office of Davis Wright Tremaine. There was a live video feed to DWT’s offices in New York City and Washington, D.C. Those participating in the Salon (the sixth) were UC Irvine Dean Erwin Chemerinsky and UCLA Law Professor Eugene Volokh with DWT lawyer Kelli Sager moderating the exchange between the two. The Salons are conducted in association with the law firm of Levine Sullivan Koch & Schulz and the Floyd Abrams Institute for Free Expression at Yale Law School. (Chemerinsky and Volokh are on the Salon’s advisory board). Lee Levine introduced the program. The topic of discussion for the 90-minute exchange, replete with questions from the audience, was “The Roberts Court and the First Amendment.”

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

                        Eugene Volokh, Erwin Chemerinsky & Kelli Sager

The Chemerinsky-Volokh exchange was nuanced and esoteric yet always insightful, informative, and engaging. Ms.Sager ably navigated the discussion through a variety of topics including:

  • First Amendment law in the context of the government acting as sovereign vs the government acting in a managerial capacity
  • the reach of the government speech doctrine after Walker
  •  the future of “strict scrutiny” analysis after Williams-Yulee
  • whether in light of Williams-Yulee (and the idea that judicial elections are different) independent expenditures might be regulated notwithstanding the holding in Buckley
  • the impact of Reed on the “secondary effects” doctrine
  • the likelihood that the trio of Breyer, Ginsburg, and Kagan will be able to persuade a majority of the Court to abandon strict scrutiny in content-discrimination cases
  • whether in the Friedrichs case the Court will overrule Abood (reference was made to Catherine Fisk’s SCOTUSblog post “The Friedrichs petition should be dismissed“)
  • what important First Amendment issues are not before the Court but which need to be
  • whether the Court is likely to grant cert. in a “right to publicity” case (see Law360 Aug. 14, 2015 news story here)
  • and how the Court has yet to give any serious consideration, post Reno and Ashcroft, as to how the Internet impacts First Amendment law.
Judge Alex Kozinski

Judge Alex Kozinski

And there was more, much more, including a variety of questions from the audience consisting of First Amendment lawyers and law professors, journalists, and free-speech activists.

BTW: Ninth Circuit Judge Alex Kozinski was in the audience and asked the two professors to comment on the following statement: “The big threat to free speech in the next twenty years is from foreign countries” trying to enforce “right to be forgotten” laws against the likes of Google and ordering them to remove certain items from all of their posts in all nations, including the United States. “The right to be forgotten,” he added, “is just the first of what may be many laws that are more speech restrictive than those of the U.S., e.g. defamation, privacy, and moral rights.” [See Mike Masnick, “Google Disappears Techdirt Article About Right To Be Forgotten Due To Right To Be Forgotten Request,” Infowars.com, Aug. 25, 2015)]

Shout out to the fine folks at Davis Wright Tremaine for hosting the Los Angeles Salon.

The L.A. Salon event was video-recored and I hope to post a link to it soon.

Go here for video of fifth Salon: “Is the First Amendment Being Misused as a Deregulatory Tool?”  The exchange, held at the Abrams Institute at Yale Law School, was between Professors Jack Balkin and Martin Redish with Floyd Abrams moderating.

A Tribute to Marc Poirier

marc-poirier-176x220I want to mark the passing of a former colleague of mine, Seton Hall’s Marc Poirier. Marc was an exceptional scholar, teacher, and colleague.

Marc was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. He wrote on property, environmental law, and civil rights, and combined the fields in innovative ways. His “Virtues of Vagueness in Takings Law” was both widely cited, and elegantly argued. Essays like “Science, Rhetoric, and Distribution in a Risky World” were philosophically informed readings of fundamental controversies in environmental policy. Throughout his scholarship, there was a concern for the marginal: the victims of environmental racism, sexual orientation discrimination, climate change, and many other contemporary scourges. But there was also a wise awareness of the limits of law and the complexities of advocacy.

It is thanks to the efforts of people like Marc that marriage equality has come to America. I say this not only because an article like “The Cultural Property Claim in the Same-Sex Marriage Controversy” clarified the stakes of the term “marriage” so eloquently and empathetically. Marc’s service and faculty advising modeled, for all of us, a patient way of working for justice in slow-moving courts and agencies, and in institutions affiliated with a “church that can and cannot change.” Marc explored gender and LGBTQ equality in so many dimensions: legal, sociological, anthropological, economic. I have little doubt that his work will be consulted again and again, as scholars reflect on his illuminating efforts to balance liberty and equality, tradition and innovation, individual self-expression and institutional self-governance.

Marc was also deeply involved in the community. He devoutly maintained a meditation practice, both as a leader of group meditation sessions and a member of area sanghas. He offered his teaching to all at Seton Hall, and organized sittings and other opportunities for us to experience meditation’s compelling combination of relaxation and focus. While some might see meditation as an unlikely practice for lawyers, Marc helped us understand both professional judgment and spiritual practice as complementary ways of gaining a broader perspective on reality. Groups like the Association for Contemplative Mind in Higher Education have shown how important these opportunities can be for both faculty and students alike. I will always be grateful to Marc for bringing these practices to Seton Hall.

Marc was also a very committed teacher. He went above and beyond in his administrative law class to include extra material on state and local government that few other courses in the area covered. The standard for his seminars was exceptionally high, and he’d have frequent meetings with students to help them perfect their papers. He was available all the time, and always happy to talk.

Finally, I will always remember Marc as wonderfully effervescent. He was such a delight to have lunch or dinner with. And he would talk about just about anything: how to argue a difficult point in an article, how to navigate administrative mazes, or what were the best parks and beaches in New Jersey. He was such a good listener. I think this was part of his meditative practice: to open himself up to whatever colleagues or students wanted to chat about, knowing exactly when to inject a note of skepticism, a considered reflection, a guffaw.

I will so miss those conversations with Marc. There is some small sense of consolation in reading his articles, artifacts of a gentle yet meticulous intellect making connections among concepts that only someone of his deep understanding and learning could accomplish. But I wish we’d had more time to learn from him. I hope I can do some justice to his memory by trying to imitate the empathy, reflectiveness, and openness he showed to so many.

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Race, Love, and Promise

Sheena and Tiara Yates

Martha Ertman’s wonderful new book, Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families, is a must read for anyone concerned about families or law. Ertman’s core argument is that “contracts and deals” can play a critical role in “helping people create and sustain families.” In advancing this claim, the book – which reads like a good novel even as it maps the complex, shifting landscape of modern family law – primarily relies on Ertman’s own, very compelling story of love and parenthood. Along the way, however, it also communicates the stories of other “Plan B” families, those that Ertman describes as being formed in “uncommon” ways. In doing so, it clears important space for lawyers and non-lawyers alike to consider the experiences of all families. 

Ertman persuasively makes the case that formal and informal “exchanges . . . [already] define family life” in a host of ways, and that greater reliance on such contracts could support the formation and functioning of Plan B families, as well as their more “common,” Plan A, counterparts. As a family law professor,I am deeply sympathetic to this view.  Even more, like so many others, my personal life is comprised of a patchwork of formal and informal contracts. On one hand there is my almost twelve-year legal marriage and the enforceable post-adoption contact agreement — something Ertman would call a “PACA” — that provides for annual visitation with my younger son’s birth mother. Then, on the other hand, sit the unenforceable, but nevertheless important “deals” that I have made with family members. These include the parenting norms that my spouse and I follow in raising our two children, and the mutual vows that we made before family and friends – such as “to love your body as it ages” and “to support you in the pursuit of your dreams.” These promises both help to define and affirm the contours of our loving commitment as a couple and a family.

Nevertheless, I often found myself seeking more from the story that Love’s Promises tells about the place of contract in family life. Like the students I teach, I have some nagging questions about how well contract can work for those who, for example, lack the money to hire a lawyer to draft or defend their cohabitation agreements, or who, because of past experience with the legal system, might never think about contract as a potentially liberating force in their lives. Moreover, I wanted a more complex narrative about the operation of race and contract in the family context than the book attempts to communicate.

To be clear, Love’s Promises does not ignore the subject of race. Indeed, Ertman deserves high marks for examining topics such as Whites’ exclusion of Blacks from marriage during slavery; the forced sterilization of African American women; and the concerns about transracial adoption articulated by organizations such as the National Association of Black Social Workers in the 1970s in crafting her vision of what the rules concerning contract and love should be. But, as important as this past history is, what I most craved was deeper engagement with what increased reliance on contract would mean for issues of race and family in the future.

Laws pertaining to family have historically structured families, but also race – how it is defined, understood, and experienced — in very consequential ways. Think, for example, about antimiscegenation laws that helped to give content to the very idea of race, determining who would be regarded as black or white, slave or free. I am thus very skeptical about the notion that, without more, we can expect that a norm which encourages greater reliance on agreements — especially those that would be more than mere “deals” and thus enforceable in court – will always have an equality-enhancing effect. A newspaper article that I recently read about the efforts of a black, lesbian couple (their picture appears at the outset of this post) to expand their family helps to explain why.

Sheena and Tiara Yates, fell in love and, after their 2011 New Jersey commitment ceremony, decided that they wanted a child. They successfully had one child and later tried to become parents again. As they had the first time around, Sheena and Tiara, who legally married in 2014, used in-home insemination to conceive. To formalize their family unit and intentions, they also entered into a written contract with the known donor whose sperm they utilized. Their agreement contemplated the donor’s relinquishment of all parental rights in the new baby, something designed to permit Sheena and Tiara to parent the child they’d longed for as a unit of two.

Despite the contract, the donor subsequently brought a custody suit to challenge the agreement’s terms and, at least preliminarily, succeeded in doing so. In a decision that the Yateses are now appealing, a judge granted him parental visitation rights. In cases involving insemination, New Jersey, where Sheena and Tiara reside with their family, courts will only recognize a non-biological parent’s rights if the insemination process was carried out by a physician. Although Sheena and Tiara, according to news sources, met with a doctor and were prescribed prenatal vitamins, the actual insemination process was performed at their home, without medical assistance. Significantly, this is the second custody suit that the Yateses have had to defend. The donor for their oldest child challenged the agreement that they had with him on similar grounds and now has visitation rights with that child as well.

Race, gender, and class intersect in troubling ways in the Yates case. Admittedly, it is not contract per se that produces the potential inequality. In fact, Sheena and Tiara clearly saw contract as an important tool in growing their family. But they entered into the donor contracts described within in a particular context, one in which the medical and legal costs that attend physician-assisted fertility treatments generally remain out of reach for low and even some middle-income families, a group in which African Americans — perhaps LGBTQ Blacks most of all — are disproportionately represented. It is not hard to imagine that health care costs figured into their decision to inseminate at home or, for that matter, to use a known donor rather than an anonymous donor affiliated with a sperm bank. Add to this the potential effects of other factors, such as fact that, given past history, many African Americans mistrust doctors and medical facilities, a phenomenon that Kimani Paul-Emile discusses in her work. All of this troubles the story of contract’s ability to advance the aspirations of all families equally.

Significantly, my lament is not simply that Love’s Promises passes up an opportunity to discuss how the realities of race and structural inequality in this country might diminish the power of contract for African Americans and other groups of color in the family context. Ertman’s book also misses a chance to say something about the particular advantages that contract could offer such groups. Despite my earlier argument, my sense is that there may be some places where contract could be very effectively deployed to disrupt the effects of racial stigma and inequality, especially if paired with other tools.

Consider the example of nonmarital black families, especially those with children. Today, African Americans are the most unmarried group in the country. While the U.S. has seen declines in marriage among all groups, they have been steepest among Blacks. Interestingly, African Americans place a higher value on marriage than many other groups. Studies suggest, however, that considerations regarding financial security and other related issues may prevent them from seeing marriage as a viable option for organizing their lives. In a recent law review article in the Hastings Law Journal, I make the argument that, instead of investing in marriage promotion programs that too often ignore the structural racial inequality (e.g., poverty, school drop out rates, housing and food insecurity, and high incarceration rates) that often creates a barrier to marriage, we should work to honor and better support nonmarital black families where they stand.

When it comes to cohabiting couples, Ertman concludes that they “should be recognized as an ‘us’ in relation to one another through property-sharing rules,” such those proposed by the American Law Institute. She stops short, however, of saying that cohabitants should “be treated as an ‘us’ when it comes to institutions outside the relationship, like the IRS and the Social Security Administration.” As Ertman notes in addressing proposals advanced by other law professors, a focus on cohabitants alone won’t do much for African America, a community in which black “women . . . are three times more likely than white women never to live with an intimate partner and more likely than white women to center their lives among extended kin.” But contract might be a more effective tool if extended to nonmarital families with children, whether the parents reside together or not. This might be especially true if combined with changes in tax policy and the structure of benefits that Ertman is less comfortable making in the absence of marriage.

For reasons already articulated, I do not think that adults in poor, nonmarital black families will or should run out to find lawyers who can draft binding contracts for them. But I can still imagine a world in which a contract-based norm works to destigmatize such families by making it plain that they have structures and “deals” like many others, not just the “tangle of pathology” described in the Moynihan Report issued fifty years ago.   In such a world, even informal contracts could assist the adults in “fragile” families in negotiating the many challenges that they face and serve to reduce conflict. Further, such agreements, to the extent that they help reveal the precise terms of the negotiations in which such families already engage, might uncover the reasons that fragile black families seem to be able to navigate co-parenting better than their counterparts. They might also disrupt stereotypes about the contributions that fathers, in particular, make to such families. Despite the racialized trope of the “dead beat” dad, studies show that nonmarital African American fathers tend to be more involved with their children than nonmarital White fathers, and regularly contribute diapers and other goods as a way of providing support, even when dramatically reduced job opportunities make money scarce.

Love’s Promises helps us see the current realities of both “Plan A” and “Plan B” families, and to imagine what the future could and should be as a normative matter. I’m very grateful to Martha, the symposium organizers, and my fellow participants for helping me to think even more about the possibilities of contract in the family law context, especially where families of color are concerned. On this day, especially, when the U.S. Supreme Court has affirmed that LGBT couples are “Plan A” families in the eyes of the Constitution, I only hope that Ertman decides to write another book that builds on the important foundation that she has set.

 

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When Love’s Promises Are Fulfilled By the U.S. Supreme Court

Today, in a 5-4 decision, the United States Supreme recognized the fundamental nature of love’s promises. In Obergefell et al. v. Hodges, the Court held,  “the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”  Referring to marriage as a “keystone” of the U.S.’s “social order,” Justice Kennedy declared same-sex marriage bans unconstitutional. Importantly, the case makes clear that forcing gay couples to go across state lines to marry only to deny them the franchise after returning home undermines fundamental principles of liberty.

It’s no surprise that Professor Martha Ertman’s powerful book: Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families on which she copiously and beautifully toiled while rearing her son debuts the summer that equality in marriage becomes a fundamental right for gay men and women. Nor should anyone be surprised if the book, along with the decision itself, becomes a central text at universities and beyond. In what David Corn calls a “love letter to marriage,” from the pen of Justice Kennedy, the Court reasoned:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.“

With that, the Supreme Court overruled the prior judgement of the Court of Appeals for the Sixth Circuit and set in gear the reversal of centuries’ worth of stigma, shame and inequality, which may not erase overnight, but overtime will ease. Professor Ertman might also suggest that by the decision, the Court resituates contracts too. That is to say, if viewed from the lens of contracts, which serves as the core, theoretical foundation of Love’s Promises, this decision recognizes a fundamental right in contract for gay men and women. Further, the case expands the “contract” franchise to include gay women and men.

Some scholars approach gay marriage primarily from the constitutional liberties encapsulated in the 14th Amendment, upholding equal protection for U.S. citizens regardless of their status, others approach the issue as a matter of privacy. For Professor Ertman, contracts offer an additional lens and much to deliberate about on matters of marriage, parenting, and familial intimacy. Professor Ertman’s writings on contract (The Business of Intimacy,  What’s Wrong With a Parenthood Market?, and Reconstructing Marriage to name a few) precede the book, and presaged its birth.

Here for example, in a passage from Chapter Eight, she explains that “[i]t takes two more trips to the lawyer’s office to hammer out terms that satisfy Karen, Victor, the attorney, and me, from lawyerly technicalities to the emotional terms we call “mush.” From what started out as an addendum to Victor’s and my coparenting agreement has blossomed into a bouquet of wills and powers of attorney, alongside the amended parenting agreement.” She tells readers, “On the way downstairs, clutching documents still warm from the copying machine, Karen squeezes my hand, as if she too feels that signing all those dotted lines brought a family into being every bit as much as vows of forever that we plan to recite…” As she explains, “if you scratch the surface of marriage—straight or gay—you’ll find contracts there, too.”

Professor Ertman urges us to remember time and again that what builds relationships and sustains them are the formal and informal contracting that take place daily in marriage; they establish the foundation for marriage and what comes after. She works diligently in the book to demonstrate love too undergirds contracts. That is to say, she wants readers to reimagine contracts—not as the products of cold, calculated bargaining or business arrangements—though one must acknowledge contracts can be that too—even in marriage.  Often marriage is the product of love, intimacy, and warm innocence.  At other times, it is the product of business arrangements.  It was that too in the U.S. chattel system: contracts that gave legal sufficiency to the buying, selling, bartering, and even destroying of slaves, including children (among them the Black biological offspring of slave owners). In light of that history yet to be fully explored and appreciated in law, it is a formidable task to resituate or reintroduce contract in the space of families and intimacy. However, Professor Ertman rises to that challenge.

Like it or not, contracts pervade marriage and suffuse premarital agreements. Sometimes contracting in this regard attempts to resituate power and status expost marriage, providing the economically weaker spouse economic stability after the breakup. Martha highlights cases from that of Catherine Simeone who received a “raw deal,” to those of celebrities, including Michael Douglas and Beyonce. Who knew that Beyonce would receive $5 million for “each of their children,” if she and Shawn Carter (otherwise known as Jay-Z) divorced? Professor Ertman might argue that despite the businesslike nature of contracts, these legal arrangements and agreements make most matters clearer for everybody. Professor Ertman explains that contracts and even verbal agreements provide information, they can provide context, and they offer choice.

In Ertman’s life, it was a contract that bestowed her wife, Karen, parenthood of their child—not something biological, legislative, or derived from courts. And she offers multiple reasons for readers to consider the salience of contracts in intimacy, including voluntariness, reciprocal promises, and equal status. She offers an additional reason: love’s promises.

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Law and the Marriage Gap

 

In his column this week at Al-Jazeera on inequality and marriage,  David Cay Johnston uses our recent book, Marriage Markets: How Inequality is Remaking the American Family, to show why marriage has become a class privilege. He suggests a variety of policies to promote investment in the next generation, policies that start to get at an issue we struggled with in the book (and that we thought would be an easy question): what role did the law play in the emerging class gulf in family formation, with the college graduates who have long been the leading champions of the sex revolution settling down into very traditional marriages while marriage seemed to be disappearing from working class communities that once espoused more conventional values?

Our initial inclination was to say not much. The first section of the book argued that the change in the economy and, particularly the disappearance of well-paying stable blue collar jobs for men, explained most of the shift in family form and, indeed, that the economic changes produced fairly predictable cultural changes that increased gender distrust and produced less reliance on marriage To be sure, we acknowledged Carl Schneider’s work two decades ago arguing that family law plays a “channelling function” in reinforcing shared notions of appropriate behavior. But, we also recognized that the class-based marriage divide is not about different norms; most Americans, regardless of race or class, expect to marry and value what marriage has to offer in similar ways. They differ primarily   in whether they expect to find a suitable partner and a point in their lives where marriage makes sense.

As we dug deeper into the research, however, we ultimately did come to a different conclusion: a conclusion that the law does matter and has something to do with the decision about whether it makes sense to marry a particular partner. Read More

Posner
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Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” — David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”

______________________

The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

Safe Harbor Read More