Category: Civil Rights

18

And more good news for marriage equality….

Quick follow-up to Friday’s post: Vermont just became the first state to adopt same-sex marriage by legislative vote, with an override of the governor’s veto. A couple of questions for commenters:

–Many critics of judicial decisions promoting same-sex marriage had previously focused their complaints on courts’ “activist” interpretation of state constitutions or their circumvention of popular will. Will those critics support or at least accept this development in Vermont? (My guess is that some will, because some are sincere in their preference for major social change to come through the democratic process–but for many others the process arguments are fig leaves, covering antipathy toward same-sex marriage itself.)

–What lessons will historians draw concerning the ability of courts to promote social change? As readers no doubt remember, Vermont’s supreme court issued a landmark decision nearly ten years ago requiring reform of the marriage law, but holding that civil unions were a constitutionally permissible alternative to marriage. The legislature at that time chose civil unions, but over the course of the past decade, apparently, social norms in Vermont have shifted. Can the judicial decision be credited with triggering that shift, by starting a statewide (indeed, nationwide) conversation? If so, was the court’s deference to the legislature in selecting the remedy wise from the perspective of promoting lasting social change? Or could a similar result have been reached if the court had just gone the whole distance on its own, as in Massachusetts or Connecticut–or California, where chances are good, considering demographics and changing attitudes, that it won’t take ten years for the people to reinstate the rule adopted by the high court? (Of course, these comparisons are complicated by the fact that Vermont’s decision came considerably earlier in our national conversation about this issue. In 1999, the main precedent for the Vermont court to consider was what had happened in Hawaii, where voters had amended the state constitution following a court decision that had taken a big step toward legalizing same-sex marriage.)

UPDATE: Also today, the city council of Washington, DC voted unanimously to recognize same-sex marriages performed in other states. It’s been an eventful few days on this front!

2

John Hope Franklin 1915-2009

I wanted to note the passing of John Hope Franklin, the great historian of the African-American experience in this country, who passed away last week. Professor Franklin was part of Thurgood Marshall’s team during the Brown litigation, and his 1947 book “From Slavery to Freedom: A History of American-Americans” is still considered a classic in the field.

I had the pleasure of meeting Professor Franklin three years ago when I was doing research at the FDR Library in Hyde Park. The reading room there is rather small and only a few people were there when he came walking in with a librarian who blurted out, “Hey, everybody! It’s John Hope Franklin.” We all went over to chat and he couldn’t have been more gracious, asking me about my work in detail. (He did seem a tad disappointed when I told him I was a lawyer rather than a historian, but that passed quickly.) I was struck by his approach because I’d seen an interview with him not long before where he explained that as a young man he met W.E.B. Dubois, who was pretty nasty and dismissive towards him — a lowly graduate student. He made sure not to treat others that way.

John Hope Franklin led an exemplary life as a scholar and a citizen. We can all aspire to that standard, but it’ll be hard to match.

36

Marriage Equality in Iowa

The Iowa Supreme Court today unanimously struck down the state’s marriage law as a violation of the Iowa equal protection clause. I don’t have much to add to the well-reasoned opinion, but just wanted to call it to the attention of anyone who missed it, as it is currently buried in scrolldown-required small print at the New York Times and Washington Post websites. (Seriously, I know this isn’t the first state, but isn’t this still newsworthy?)

A brief summary, in case you don’t have time to read 65 pages: The Court holds that intermediate scrutiny is appropriate because (a) gays and lesbians have long been victims of invidious discrimination, (b) sexual orientation is unrelated to ability to contribute to society, and (c) sexual orientation is at least largely immutable. (The Court points out that it doesn’t need to find definitively that nobody can ever change his or her orientation to justify intermediate scrutiny; after all, some people change their sex.) Applying this standard, it then rejects all of the county’s proffered justifications for marriage exclusion. First, the claim that the marriage law should be upheld “to preserve the traditional definition of marriage” is tautological, and treats discrimination “as an end in itself.” Second, the claim that opposite-sex parents are better for kids has been disproven by a raft of studies, and even if it were true, marriage exclusion is a poor fit to the kid-protective aim: the law does not prevent gays and lesbians from becoming parents, and it does not exclude from marriage people who would undoubtedly make way worse parents, like straight convicted child abusers, while it does exclude gays and lesbians with no intent to raise children. Third, the related “promoting procreation” goal also lacks a substantial relationship to the law—straight people will not stop having babies because gays and lesbians can marry. Fourth, the goal of “stabilizing opposite-sex relationships” likewise has no logical relationship to excluding gays and lesbians from marriage. Finally, the goal of saving the state money in taxes and benefits could justify excluding any group from marriage, but intermediate scrutiny requires that there be a good reason to exclude this particular group and not everybody else.

Notably, this decision apparently will not result in an initiative campaign this fall. According to the New York Times story, Iowa law requires constitutional amendments to be approved by two consecutive legislative sessions, and only then approved by voters. That’s good news for marriage equality, because as demonstrated by the experience of Massachusetts (which has a similar amendment procedure), the longer same-sex marriage is in place, the more public support it gains. Given a little time, straight citizens tend to recognize that their own marriages haven’t fallen apart, nor has the sky otherwise fallen, just because other loving couples are also able to recognize their commitments through marriage.

53

Cyber Harassment: Yes, It is a Woman’s Thing

In response to yesterday’s post, commentators questioned whether cyber harassment is a gendered problem. The answer is yes. While cyber attackers target men (see my post here), more often their victims are female. According to a University of Maryland study, online users who appear female are 25 times more likely to receive threats and sexually explicit messages than online users with male names. The disproportionate targeting of women accords with statistics compiled by the organization Working to Halt Online Abuse (WHOA). In 2007, 61 percent of the individuals reporting online abuse to WHOA were female while 21 percent were male. 2006 followed a similar pattern: 70 percent of those reporting online harassment identified themselves as women. Overall, in the years covering 2000 to 2007, 72.5 percent of the 2,285 individuals reporting cyber harassment were female and 22 percent were male. 70 percent of the victims were between the ages of 18 and 40 and half of them reported having no relationship with their attackers.

What of the comment that these statistics are somehow skewed because women are just more likely to “*complain* about it [whereas] Men are more likely to either ignore it, see it as trivial, or engage in self-help.” Here, the study from the University of Maryland’s Department of Electrical and Computer Engineering Department is particularly instructive. Robert Meyer and Michel Cukier studied the threat of attacks associated with the chat medium IRC. They used a combination of simulated users (i.e., bots) and regular users. In an experiment using silent bots, they tested whether or not the gender of the user-name had an affect on the number of attacks received. The female names used were Cathy, Elyse, Irene, Melissa, and Stephanie. The male names were Andy, Brad, Dan, Gregg, and Kevin. The study found that female bots received on average 100 malicious private messages a day while the male bots received an average of 3.7. It found that the user gender had a significant impact on the number of sexually explicit and threatening messages received. Moreover, studies suggest that women under-report cyber harassment due to feelings of shame, not over-report as the commentator suggests.

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Cyber Civil Rights

I just wanted to put up a note of congratulations to co-blogger Danielle Citron, whose work Cyber Civil Rights was just published by the B.U. Law Review. I’ve seen Citron present the piece at a conference, and I think it really breaks new ground in applying venerable laws to the online environment. As recent controversies have shown, it’s easy for online mobs to inflict real injuries on their victims–and women bear a disproportionate share of the abuse. Citron argues that “acting against these attacks . . . helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.”

David Hoffman and I tried to organize an online symposium here at Co-Op last fall to discuss Citron’s work, but we couldn’t get the schedules of participants worked out. This year we’re going to try again, hopefully for early April. If you’d like to suggest possible commentators, please email me.

One good side effect of the delay is that we’ll also be able to discuss some of Danielle’s more recent work. Online attacks are getting more attention in the media. Evoking Catharine MacKinnon’s work to end sexual harassment, Citron argues that naming and recognizing the gendered nature of many online threats is crucial to developing common cultural understandings that enable real democratic culture and participation online.

I really value that kind of historical perspective, especially after listening to Fred Strebeigh discuss his work Equal: Women Reshape American Law. Strebeigh “tells the story of the female lawyers who took on sexual harassment, sexual discrimination and violence against women,” and the most remarkable part of the podcast was how many women resigned themselves to sexism in the legal profession even as they were beginning their careers in the extraordinarily discriminatory environment of the 1950s and 60s. I see Citron’s work as another step in the consciousness-raising that brave feminists began decades ago.

8

The M Word

David Blankenhorn and Jonathan Rauch have an Op Ed in the New York Times on “A Reconciliation on Gay Marriage.” Blankenhorn has spoken out strongly against gay marriage. Jonathan Rauch has been in favor of it. They think they have struck a deal. Here is their proposal:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

The gist of the proposal is that same-sex couples could receive federal benefits, while religious entities would not be forced to recognize their unions. B & R note that the First Amendment likely means no church can be required to perform a same-sex union. Under the proposal they offer, a church auxiliary or charity also could not be forced to give spousal benefits to the partner of a gay employee; a faith-based nonprofit would not lose tax status by refusing to host a gay wedding ceremony.

The proposal is likely to generate a good deal of discussion and opposition on both sides. Marriage proponents will object to the seemingly broad exemption for religious groups; marriage opponents will object to any conferral of federal benefits on same-sex couples.

One aspect of the proposal, which might easily be overlooked, strikes me as fatal.

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Title VII, the Adverse Action Requirement, and Ricci v. DeStefano

The reverse discrimination case Ricci v. DeStefano , in which the Supreme Court recently granted certiorari, is a strange case for the Court for a number of reasons. One oddity is the fact that the case involves a Title VII Civil Rights Act claim by plaintiffs who do not seem to have suffered an “adverse employment action,” and yet there is no hint anywhere, at least that I have seen, that this issue was raised. In the traditional discrimination context, courts have consistently required that a plaintiff have suffered an adverse employment action before he or she has an actionable claim under Title VII. Many courts define the requirement strictly, to require an “ultimate” employment action, like refusal to hire or to promote, and even those applying a somewhat broader definition require that the race- or sex-based decision have had a material effect to be actionable. The firefighters in Ricci had suffered no such material effect. Why no mention of this in the case? If courts are really going to apply an adverse employment action requirement to Title VII claims, the requirement should apply regardless of how obvious the racial motivation and certainly regardless the race of the plaintiffs.

32

The Best Way to Give D.C. a House Seat Is Also the Only Way

Professor Rick Hasen has a piece up at Slate on the D.C. Voting Rights bill. He says that the bill—which would give D.C. residents a voting member of the House of Representatives—is “probably unconstitutional,” but that “Congress should pass it” anyway. That’s what the Washington Post editorial board thinks too, saying that Congress should leave constitutional-law debates to the courts and do what is right. They agree with Rep. Steny Hoyer that “the case should be made on principle, not technicalities.”

Since when is adherence to the Constitution a technicality, and not a principle? I agree that D.C. residents deserve representation, and I would support a constitutional amendment to give them some (or perhaps to let them go back to being part of Maryland). But I think that an amendment is necessary, because the Constitution limits the House to members from “the several states,” and D.C. is not a state.

To me, Hoyer’s dismissal of the Constitution—as a technicality to be brushed aside—is the opposite of principled. This country is not better off when it encourages members of Congress to abdicate their responsibility and their oath to support the Constitution. Our belt-and-suspenders system is supposed to give us multiple lines of defense against unconstitutional laws: the House, the Senate, the president, and the courts are all supposed to agree that a law is constitutional before it can be used. Leaving it to just the courts is like taking off the belt and one of the suspenders, and having the remaining suspender be very loose. I would very much prefer to keep America’s pants on.

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A New Day Dawning at Justice

As the full measure of lawlessness at the Bush Office of Legal Counsel gets disclosed, many lawyers have anxiously awaited the nomination of a new OLC head capable of repairing the damage. The appointment of Dawn Johnsen is a sign that Obama is serious about righting the ship here. As Prof. Johnsen wrote about the infamous torture memo:

The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it–all demand our outrage.

Unlike the legal academy’s many “Professors Strangelove,” Prof. Johnsen had the courage to uphold lasting American values in the face of temporary passions demanding their discarding. Congratulations to her on this well-deserved appointment.

0

Individualizing v. Generalizing

Thanks to Dan for inviting me to blog this month. I’m looking forward to it.

I’ll start with two pieces in the NY Times Sunday Magazine this week that raise interesting questions about individualization versus generalization and the struggle for equality for women and people with disabilities.

In Creature Comforts, Rebecca Skloot reports on the difficulty faced by people with disabilities seeking to use a variety of animals to assist them in day-to-day public life. In doing so, she identifies the inevitable tension between the individualized inquiry required by the ADA and the urge (and sometimes need) to generalize. The people maintaining public spaces, including those who use those spaces, want bright lines about which animals are permissible service animals, while the ADA requires that they accommodate individuals with disabilities and their individualized needs.

Similarly, in The Senator Track, Lisa Belkin comments on the difficulty that women (including Caroline Kennedy) face when they seek jobs after taking what she calls a “mom sabbatical.” Belkin claims that we need to redefine “experience” so that “what you do, and think, and produce, and change all count—even if none of your activities take place in an office, where you enjoy a title and a salary.” This call for individualized inquiry, however, butts up against the simplicity and utility of generalization; in short, working in an office with a particular title serves as a general proxy for a group of skills that Belkin would have employers examining on an individual basis (e.g., ability to run meetings, to arrive on time, to manage accounts, etc.).

The fight for individualization over generalization is a worthy one. In setting up the equality struggle in this way, however, both pieces miss an important component of the battle: longstanding and entrenched biases. In the disability context, our perceptions and judgments about the suitability of certain animals for public accommodation are undoubtedly intertwined with our biases regarding difference (and our definitions of “normalcy”). It will be much easier, I expect, to get people to accept, for example, horses as service animals for the blind than it will be to get people to accept a parrot as a service animal for a man prone to psychotic episodes. Similarly, the difficulty faced by women who take time out of the traditional work force to provide care for family members is as much one of stereotypes as it is of a more neutral inclination to generalize. I’m reminded here of research by sociologist Shelley Correll and colleagues at Cornell on the motherhood penalty (for a recent review of the research the work in this area, see Stephen Benard et al., Cognitive Bias and the Motherhood Penalty, 59 Hastings Law Journal 1359 (2008)). This research suggests that a woman seeking to reenter the traditional work market will have to overcome stereotypes that her male counterpart will not. Imagine a mother and a father who each picks up a child from your neighborhood school, Monday through Friday at 1:30 pm. You bump into each one and engage in conversation; which one do you expect will have an easier time convincing you (through subtle signals or otherwise) that he/she is engaged in workforce-related activities between 9:00 and 1:00?