Author: Katharine Baker


A Thought Experiment

As I mentioned on Monday, I read Normative Jurisprudence as a call for more serious legal discussions about the good in relationship and the good in sex.  In the past 3 days, I’ve written about relationship (or at least marriage). Today, I’m going to talk about sex.  I’ll start by saying that Robin West first became my hero when, in the 1980s, she, more than anyone else, wrote openly and honestly about many women’s relationship to sex.  At that time, feminists were talking a great deal about the harms of non-consensual sex, but not about  why women might actually want to have sex.  Sex positivists, both male and female, emerged to extol the benefits of sex (or at least the harms of regulating it) in order to mostly kill the feminist attempt to regulate pornography. Not very many people argued, as Robin did, that we really did need to have it both ways.  Sex could be good and sex – even consensual sex – could be bad.   Today queer theorists and sex positivists talk
a great deal about sex, including, as Marc Spindelman reminded us yesterday, its incessantly irrational nature.  For much of queer theory, the power of that irrationality and the raw “natural” power in sex renders sex a force and a good around which there should be no or minimal boundaries.    Few people, save Robin, the followers of John Finnis and the ever-opinionated-if-not-completely-informed Richard Posner, talk about what sort of boundaries we might believe should be put, either as a matter of ethics or a matter of law, on a right to sexual expression.

It is not surprising, therefore, that when Justice Kennedy was left to describe what was wrong with anti-sodomy laws in Lawrence he could provide only a thin understanding of why sex needs protection:  Sex is an expressive part of relationship
(“when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”).  As a fan of relationship (see all that marriage stuff), I am not as outraged by this language as many of the progressive critiques of it, though I also see no good reason for the law to bar fully consensual, non-dangerous non-relationship sex (which, if it was sexual at all, is apparently what the encounter in Lawrence v. Texas was, anyway.)     There is something about the sex that  needs to be protected apart from relationship, or at least I can think of no good reason to protect the sex only when it is in relationship.

But of course constitutional jurisprudence says that unless we have triggered some form of added scrutiny, legislatures do not need a good reason, they need only any reason.  “Yuck” is a sufficient reason for regulation if there is no added scrutiny.  Justice Kennedy suggested that the added scrutiny comes from the relational aspects of sex.  If we want the right to be broader than that, we need a broader reason for added scrutiny.

Articulating that broader reason may be more difficult than we think.   Here’s a thought experiment. If you asked a swath of the general American population who do you agree with more, John Finnis or Janet Halley, I bet more people would say Halley.  Every poll and study confirms that Americans find nothing wrong with non-marital, nonprocreative sex and they would reject Finnis’ anachronistic views of sex out of hand.  In many isntances involving sexual conduct,   the public seems content to let people do what they want. But if you asked that same group whom they would like to control the Supreme Court tomorrow – and they had to choose Finnis or Halley –   I bet more people would vote for Chief Justice Finnis. Here is why. Finnis would permit legislatures to make nonprocreative sex illegal and make birth control hard to come by, but he would not have the power to effect the change he wanted.  He would concede that sex should happen in private, so people would be entitled to some sexual privacy.  There would be enough popular disdain for very sex restrictive laws that even if they did pass, enforcement efforts would be haphazard.  Certain areas would be unlivable for gay men and lesbians (thus, the gay vote would clearly go for  Chief Justice Halley) and some innocents would be unfairly punished, but mostly the government would not be up to the regulative task that Finnis would argue it was entitled to pursue.

Put the queer theorists on the Court though and look what happens to sex. It is everywhere and it is protected.  It is with all manner of partners, teacher and students, uncles and niece.  It is presumed consensual; it is happening on the park bench at noon.  Not everyone is doing it on the park bench, but anyone who wants to can.  Not all students are sleeping with their teachers, but those who are not (or those who are no longer) have no grounds to complain.  Many people are uncomfortable.  People are concerned about naïve and/or vulnerable people experiencing sex that they do not want or come to regret.  People feel threatened, though they are not sure why.   There is renewed  interest in Catharine MacKinnon’s claim that when sexuality goes public, women get hurt.

Whatever the true cause of the discomfort, people do not want to go to the park with their kids.  Parents do not want to let their daughters out of their sight.  People of all ages become a little desperate for some collective restriction on this activity that they know is deeply important to them, indeed they know it is deeply important to everyone.  They know they need a better reason than “yuck,” but they also know they want some regulation.  So they need a conversation about why and how
we want sex.

My guess that most of the American public would actually prefer Chief Justice Finnis may be completely wrong (it assumes, first of all, that people have a basic understnading of the relationshp between legislature and court – that may be way too optimistic).  Maybe people are much more eager to embrace Janet Halley’s vision than a I think they are.    But Robin, far more than Posner, has explained why for many people, often women, sex really is a tedious affair, having little to do with passion or captivating and blinding power.   Perhaps, as Robin has gone to great pains to emphasize, consent is a sufficient legal restriction on sex, but even if that is true we might want other normative forces operating on sexual behavior.


Marriage Outside the Constitution

In the spirit of Taking the Constitution and  . . . not talking about it so much (thanks to Heidi Feldman) I’m going to offer one more entry on marriage.  This is an entry about how marriage policy operates at a non-constiuttional level and why the progressive failure to defend marriage should perhaps give us pause.

It is far easier to find academics, including Robin several times in this book, writing about the dangers of relationships then the benefits of them.  For decades now, legal academics have criticized the way the law insulates relationships,
shields them from scrutiny, allows them to be violent and patriarchal.   It’s not that this critique is wrong, it is just that it is highly likely that most of the people reading it, if not making it  (at least all the straight ones) are enjoying most of the benefits of the institution being critiqued.  Most educated middle class people are living in an insulated relationship, probably a marriage, which they mostly keep private, which they work very hard to maintain because they believe it has
value, which provides for them deep sources of love and support and joy.   For sure, not everyone experiences marriage or relationship this way, but as everyone from Charles Murray to Stephanie Coontz has explained, marriage is very popular and working very well for educated elites.  We want to get married, we get married, we stay married (our divorce rate is about where it was in 1960), we do our damndest to raise our 2.3 children in a household with two married parents . . .  but we somehow assume it is uncool to have a discussion about why this is our preferred way of living. We protect our relationships by not airing our dirty laundry; we cringe when we see a story about a divorce in which the parties make their dispute public; we don’t want that publicity to ever attach to us.  But we continue to critique privacy, talking only about its harms, while its benefits shape our daily behavior.

I am not suggesting that we reject the progressive critique of relationship or that we ignore the critique of privacy. But after a while those critiques lose their power when insulated, private relationships still thrive among the people making the critique.    Given the support and love that can be found even in relationships that can be stifling and patriarchal, don’t we need to have a better understanding of what the advantages are and where they come from, so that we can try to emphasize the good while diminishing the bad in relationship?   Given how hard it is to discuss one’s personal relationships in public, why did we ever think a victim of domestic violence would  be willing to just walk into court and tell the judge about it?   Might we not need to structure our legal interventions so as to protect privacy not blow it apart, because if we do not, she is never coming forward anyway.

One likely cost of elites not defending the institution of marriage  is the strikingly regressive effects of marriage on low-income couples.  Yesterday, Jill Hasday wrote about the way rights discourse can obscure and exacerbate class disparities in the legal treatment of parenthood.   I’ll suggest today that the progressive resistance to defending marriage also exacerbates class disparities.  Most dual-income families suffer some tax penalty for marriage, but for low-income families, particularly those who receive the Earned Income Tax Credit, and especially those with children, marriage can result in extraordinarily high marginal tax rates.  Adding the income of a spouse to a household if the combined household income is between $10 and $40,000 annually results in an effective marginal tax rate of 35%  if one considers the tax system only, but a rate as high a 88% if one considers the combined effect on food stamps, health programs, TANF, housing and child
care subsidies.  (Carusso and Stuererle, The Hefty Penalty on Marriage, 15 Future of Children 157 (2005)).  It is economic folly for a single parent or soon-to-be parent to marry someone who makes a comparably low income. Whatever long-term emotional and economic benefits might come from allowing an interdependency to grow are likely not worth the short term economic costs.

Progressives have not focused on this aspect of federal marriage policy.  If we did so, we might well be tempted to argue that our welfare system should graduate the system of entitlement more, so that there is not such a cliff of disallowance when individuals start sharing income. Reduced to  its most basic, that argument is “we should subsidize marriage.”  It is hard to imagine a left-of-center academic making that argument.  Indeed, one tends to see the opposite .   Many liberal critics assailed the marriage promotion policy in the Personal Responsibility Act of 1996 (“PRWORA” or “Welfare Reform”).   That policy put money into teaching low income men and women about the benefits of marriage.   How dare the government do that?

The policy never struck me as all that strange or problematic though.  Stupid, yes. Worth getting all upset about, probably not.   First, I didn’t think it was going to make one wit of difference; studies reveal that most low income women well recognize the benefits of marriage, they just can’t find suitable marriage partners and/or they recognize the severe consequences of formally pooling their income.   The problem with the marriage promotion policy in my mind was that it was just a silly waste of money (money I would much rather be going to allow those working class married households suffer less of a marriage penalty).  Second, promoting marriage in the way that marriage promotion policies do – encouraging people to get married – is less pernicious than what  the Tax Code already does for higher-income households, which is encourage married couples to live gendered lifestyles.     By treating the marital household, not the individual, as the operative taxable unit, tax policy imposes a tax penalty on almost all two-earner families, but that policy turns into a comparative benefit if there are sufficient funds for one spouse to stop participating in the paid economy.    By taxing a lower earner at the highest marginal rate and not taxing any labor performed in the home, we give tremendous incentives for a second earner to abandon the market economy as a source of income for herself and a source of services for her family.   Households that pay someone else to provide child care and other domestic labor must somehow pay into a variety of employment-based social insurance programs, including FICA, Workers Comp and often health insurance for the paid providers of those services.  Marriage, not employment, provides those forms of social welfare insurance for married at-home workers.   And those at home workers’ labor is never taxed for income tax purposes.  While the policy is formally gender neutral, we blatantly subsidize the gendered division of labor.

It is any surprise, then, that wives married to college-educated husbands contribute, on average, a smaller percentage of household income than wives married to any other demographic of men.  (Taylor et al., Pew Research Center, Women and Men and The New Economics of Marriage, 2010) Or, that even wives with graduate and professional degrees do not usually work full time if their husband’s income exceed[s] $75,000.”  (Ellman, Marital Rules and Declining Marriage Rates, 41 Fam. L. Q. 455, 474 (2007).

Why there is so little feminist critique of tax policy baffles me.  I suspect part of it comes from feminists simply being weaned as feminists on critiques of the institution of marriage. Feminists may also realize that any attempt to change this policy will just lose politically.  There is far too much support in the real world for the ideal of privatized interdependence in marriage.  But if we can’t fight a tax policy that edifies marriage at a cost of gender promotion, couldn’t we at least use the edification of marriage to alleviate the hardships on low-income couples who do want to marry?  Just as failure to think more seriously about the goods of marriage hurts same sex couples who want to enjoy the benefits of marriage,  so failure to defend marriage hurts low-income couples who cannot afford marriage.


Moral Deliberation and Politics

Yesterday I wrote about one of the few cases in the federal courts that make a claim that there is a constitutional right to marry. Today, I’m going to talk about an argument made in more federal courts about the
Defense of Marriage Act (“DOMA”).  One amicus brief, filed by the Attorneys General of what most people would consider “red” states, offers an almost perfect example of what Robin describes in the 2nd Section of her book.  Robin argues, in
part, that the bastardization of legal positivism has led to the eradication of moral discourse in law.  There is a clear tendency in the legal academy to treat the Constitution as one with our collective moral compass.  Whether something is
immoral reduces to a question of whether it is constitutional and if the constitution is not equipped to answer a question, well then, it is not a proper subject of legal analysis.

This is exactly the argument the state Attorneys General make in their briefs in Golinisky v. OPM  (the 9th Circuit DOMA challenge) and Windsor v. BLAG (the 2nd Circuit DOMA challenge).  They argue, using Roe v. Wade as their primary example, that when courts inject rights protection into moral discussions about which there is disagreement, they foment deep and often intransigent discord.  Moral discussions, they argue, belong to the political process, not the legal process.
It is through politics that we can resolve, or come to some sort of equilibrium on, our differing views of morality.

It is important to note that this argument makes no sense in the context of the DOMA challenges because those challenges do not ask the federal government to dislodge any state’s policy with regard to same-sex marriage.  Striking
down DOMA would not stifle intrastate moral discussions about the nature of marriage and if anything DOMA does stifle interstate moral discussion about the nature of marriage.   The DOMA challenges argue only that the
federal government should not treat married people equally. The states are still free to set whatever marriage policy they want.  What is striking about the Attorneys’ General argument though is that it places law and morality in opposition and says that politics, not law, is the forum for moral discussion.

The Attorney Generals suggest that because marriage is a moral issue it should not be constitutionalized. The rancor that follows the constitutionalization of moral issues is destructive.   Several progressive writers (most of whom
are quoted by the conservative Attorneys General) have made this point in one form or another. It rings true to many of us and parallels much of what Robin argues in Part II.

Roe was so divisive because it reduced hard moral questions to an apparently straight-forward incantation of individual rights.  In doing so it not only stifled states’ abilities to formulate separate moral approaches to the problem of unwanted
pregnancies, it suggested that the moral problems were not that hard because they could be reduced to questions of individual rights.   (The Attorneys General do not make this point nearly as well as Robin does, but they are trying to make her point, I believe.) People feel disempowered and de-moralized when the Supreme Court reduces hard questions to individual rights. When corporations have speech rights, those interested in grappling with the morality of money in politics have no place to deliberate.  If women have an absolute right to control their own body (which they don’t; Roe provides a far more limited freedom) then those concerned about whether the life of the fetus has any moral weight have
no place to deliberate.  The Attorneys General and Robin suggest that the moral deliberation stifled by the rights based approach to moral questions is problematic.  Many people agree with that.

Where the Attorneys General go next, however familiar, is the crux of what Robin critiques in Part II.    The Attorneys General go next to politics.  The trajectory goes something like this:  Constitutional deliberation (and decision-making) is an inferior form of moral deliberation (and decision-making) therefore we must rely on the political process.  Why therefore? says Robin.  What about other forms of legal deliberation?  Why have legal scholars failed to incorporate more moral deliberation into non-Constitutional arguments.  Isn’t there a way to talk about same sex marriage and abortion in a manner that might suggest they are good, or not bad,  without resorting to the unsatisfying rubric of individual rights.  What if the red state opponents of same sex marriage had to counter arguments that suggested that same sex marriage was morally good, regardless of whether it was protected in the Constitution?  Wouldn’t we be better off with a richer legal
discussion and more potential for real moral deliberation in that case.  However prevalent the lawyer jokes, the political process is not held in much esteem these days either.  Why do we let moral questions that might fall
outside the rubric of individual rights be deliberated only in the cesspool of politics?


Genderless Marriage

Justa quick response to Deborah Hellman –  I appreciate your kind words and I recognize the  difficulties in forging some kind of consensus when people have such differing views on the nature of the good and human flourishing, but the
assumption that equality doctrine or equality principles can ensure that justice be done because we can all agree that  people need to be treated with equal respect fails to understand  the most basic argument that opponents of same sex marriage make.   To those who have differing opinions than me (and probably most readers of this blog) about  the nature of the good with regard to marriage, it makes no sense to say same sex “unions” should be treated the same  as heterosexual “unions.”  To many opponents of same sex marriage, the essence of the union is its heterosexual nature.  The fundamental debate over marriage in this country is, for many, a disagreement about whether the phrase “genderless marriage” is an oxymoron, or an ideal for which we all should be striving. To assume that you can elide that disagreement by simply saying all marriages are “unions” is to assume away the basic disagreement about the essence of marriage.


What’s So Great About . . .

Last year, after a panel on which we both spoke, a colleague from another law school approached me and asked “so what’s so great about relationship?” To which I – sounding in form, if not substance, mostly like a 7 year old – retorted “well, what’s so great about sex?” One of the many wonderful things about Robin West’s new book is that she implores us to elevate that childish exchange to a higher level.
By not having those richer discussions about what is good and bad about relationship, particularly marriage, and what is good and bad about sex, particularly consensual sex, progressives have failed to produce bodies of thought that could be immensely important to causes they care about. I would like to provide a bit more real world support for West’s arguments. My first example, which I’ll discuss today, implicates West’s discussion of natural law, and comes from Perry v. Scharzenegger, the federal case challenging the California’s Proposition8 (which dismantled the California Supreme Court’s determination that same sex couples had the right to marry in California). My second example, which I’ll discuss tomorrow, implicates West’s discussion of legal positivism and comes from the DOMA challenges percolating in the federal Courts of Appeals. Later, I will also suggest that the failure of academic elites to defend the institution of marriage is ironic at best and maybe hypocritical at worst. It leaves the less elite who often want marriage as much as elites do, without allies or arguments to help them secure it.
As for the what’s so great about sex question, which I will also talk about later in the week, I think there is an unnecessary chasm between those on the (far) right and those on the (far) left who think about the question. If, in any given locale, you lined up all the people who agree with EITHER John Finnis OR Janet Halley, your line would likely not extend around the block. (Though it would make an interesting cocktail party.) Why is no one in the middle writing about what is so great about sex? Justice Kennedy, among others, needs us.
Turning first to the what’s so great about relationship question, Judge Vaughn Walker, in his opinion striking down Proposition 8 in Perry laboriously analyzed the subject of marriage. One might think this a positive development, but the opinion reads strangely like an antitrust epistle. Judge Walker develops 80 findings of fact, including, most oddly, a finding of fact about what marriage is. Judicial findings of fact on what marriage is strike me as akin to findings of fact on what race is or what love is. Ask yourself, if you were a judge, would you feel comfortable defining race or love as a matter of fact? Race and love are not legal statuses so perhaps they are in a different category than marriage. But Walker did not and could not rely on marriage’s legal meaning because the legal definition of marriage was precisely what was contested. He needed to articulate what marriage was apart from law. He found, as fact, that “Marriage is the state recognition and approval of a couples’ choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents.” (Finding of Fact #34). As a legal matter, none of that is true. There is no legal requirement that spouses live with each other or stay committed (whatever that means) or share their property (unless they divorce).. What Walker is finding, as fact, is the collective social understanding, the non-legal meaning of what marriage is. He is doing what the natural law scholars do when they write about marriage: Explaining its existence and its virtues outside of, and at times in spite of, its legal definition. Judge Walker needed to do what West says we law professors should be doing much more of, but he had to do it mostly without us.

Walker’s one cite for Finding of Fact #34 (quoted in total above) is to historian Nancy Cott’s affidavit, filed on behalf of the plaintiffs. Taking nothing away from Nancy Cott, for whom I have tremendous respect and with whom I am quite sure I agree, one can see why the other side in this case could feel a bit outraged. How come Nancy Cott gets to define the meaning of marriage? The defendant’s witness, David Blankenhorn, who suggested that the meaning of marriage necessarily included a man/woman relationship, was dismissed as less credible than Cott because his work was not peer reviewed or as intellectually rigorous. Opinion at 948-49. The Harvard historian gets to define the non-legal aspects of marriage because she is more equipped to do so than the person without the academic pedigree, despite the fact that his understanding of marriage as gendered was shared not only by the majority of people in the country, but by the 52% of the people who voted for Proposition 8. Don’t we need a few more opinions, a bit more theory, some moral discourse on this subject before we say anything at all? Should the meaning of marriage really be reduced to a showdown between Nancy Cott and David Blankenhorn?

The 9th Circuit decided the appeal in Perry on grounds completely different than those that formed the basis of Walker’s opinion. They found that Proposition 8 violated the anti-animus principle found in Romer v.Evans. What Perry had not been a case challenging Proposition 8, but had been what plaintiffs’ counsel apparently wanted it to be, a straight claim that there is a federal constitutional right to same-sex marriage? Then the 9th Circuit would not have been free to do its neat, limited, highly-unlikely-to-be-precedential Romer analysis. It would have had to accept Walker’s odd articulation of facts or what . . . find them clearly erroneous? I don’t know many people who disagree with Finding of Fact #34. Indeed, I doubt David Blankenhorn disagrees with Finding of Fact #34. It is just laughably incomplete.

To be fair, Judge Walker had a very hard job. It is extremely difficult to talk about a right to marriage without a definition of marriage and the legal definition won’t do. Equality doctrine does not necessarily help avoid the definitional problem because if marriage is an inherently gendered institution, as Blankenhorn, the law, much history and a good deal of contemporary reality suggest, then it not clear that same sex couples would have an equality right to it. As I have argued elsewhere, while legally mandated marital gender roles died decades ago, marriage is still a deeply gendered institution: It facilitates, produces and reinforces gender roles. Many peer-reviewed acaedmics have documented that fact. Marriage is, in sociologist Sarah Berk’s phrase, “a gender factory.” Most heterosexual couples’ daily lives conform much more closely to traditional gender roles once they get married (and especially once they have children). Walker needed an understanding of marriage as not what the law said it was (male/female) and not as it appears to operate in most heterosexual people’s lives, as an institution that fosters gender performance, but as an ideal apart from law and fact.

The plaintiffs provided some sense of that ideal with Nancy Cott’s affidavit , but they provided little else. In part, that may have been bad lawyering, but it also may reflect the paucity of contemporary scholarship on why and how the law should support marriage as an institution. How can there be, why should there be such thing as genderless marriage when marriage always has been and still is usually so gendered? Some of us have tried to provide an explication and defense of legal marriage, including an explanation of why it should include same sex same sex couples, but it is far easier to find the blistering critiques of the institution. If Judge Walker, or plaintiffs’ counsel, could have easily accessed a rich normative defense of what marriage is and why it is good and why the state should support it for couples of any gender, if we, as legal scholars had done what West implores us to do in Part I of her book, then the 9th Circuit might not have had to do its neat little Romer move. And maybe there would be a federal Circuit Court of Appeals endorsing same sex marriage.