kate_nepveu: sleeping cat carved in brown wood (Default)

Three quick comments I found interesting:

  • Dahlia Lithwick on the difference between judicial activism and judging; also on how "when your citizens and/or their Legislature are racing around banning and legalizing the same thing at the same time, the will of the people is not necessarily the last word on what's constitutional."
  • Kenji Yoshino on the potential wider legal consequences of the decision. I note that the decision explicitly refused to make immutability a requirement of traits deserving the highest legal protection, as Yoshino argued in Covering.

    (Also, it is amusing to contrast his and Lithwick's characterizations of the way the decision is written.)

  • The Slacktivist considers people who are sincerely opposed to same-sex marriage for religious reasons and wonders "why these friends and brothers and sisters of mine think that such theological arguments can or should be persuasive to those who don't share our religious perspective."
kate_nepveu: scales of justice, carved in bronze (scales of justice)

As everyone has said, California's highest court today ruled that "the designation of marriage" must be made "available both to opposite-sex and same-sex couples." I am so happy about this, though my happiness must pale besides that of those more directly affected by the decision.

That decision, by the way, is 172 pages: 121 pages of majority opinion (including 73 footnotes), 40 pages of concurring and dissenting opinions, and 11 pages of administrative stuff (PDF, 500KB). I've only had time to skim the majority opinion (and I am, alas, not the sharpest knife in the drawer at the moment thanks to sleep deprivation), but the only word that comes to mind is "exhaustive." Which—to go off on a tangent—interests me, because there are several different potential audiences for all this exhaustive discourse, and talking to multiple audiences is a tough thing to do.

legal natter )

Have any of the non-lawyers here ventured into the decision itself? What did you think?

kate_nepveu: (con't from comment field) "that makes glass with distortions. --Audre Lorde" (International Blog Against Racism Week)

In Covering: The Hidden Assault on Our Civil Rights, Kenji Yoshino argues for a new way of looking at discrimination and civil rights. As the title indicates, this centers on the concept of covering, or downplaying a disfavored trait to blend in:

Famous examples of covering abound. Ramón Estévez covered his ethnicity when he changed his name to Martin Sheen, as did Krishna Bhanji when he changed his name to Ben Kingsley. Margaret Thatcher covered her status as a woman when she trained with a voice coach to lower the timbre of her voice. Long after they came out as lesbians, Rosie O'Donnell and Mary Cheney still covered, keeping their same-sex partners out of the public eye. Issur Danielovitch Demsky covered his Judaism when he became Kirk Douglas, as did Joseph Levitch when he became Jerry Lewis. Franklin Delano Roosevelt covered his disability by ensuring his wheelchair was always hidden behind a desk before his Cabinet entered.

The central argument of the book is that covering is an assault on civil rights because it is an assault on autonomy. If one has a right to be something, one has the right to do the things that one feels are part of that identity. Otherwise, "the demand to cover . . . is the symbolic heartland of inequality—what reassures one group of its superiority to another." In other words, though assimiliation can be necessary for peaceful co-existence, its dark side also should be recognized.

The book is a blend of memoir, history, and legal analysis. It begins with a chapter of memoir, charting the author's "struggle to arrive at a gay identity." Yoshino did undergraduate and graduate work in literature before switching law when he accepted his sexuality—because, he writes, "A gay poet is vulnerable in profession as well as person"—and all of the autobiographical portions of the book are elegant and precise. And in the later chapters Yoshino moves between memoir and history or legal analysis with a remarkable fluidity, never jarring me in the transition.

After the context-setting opening chapter, the book divides into three parts. The first is an examination of gay history, which is itself divided into three parts: conversion, or attempts to change sexual orientation; passing, or attempts to hide sexual orientation; and covering, or attempts not to flaunt sexual orientation. Each section emphasizes how it is still a current problem. Conversion lives in the idea that homosexuality is "contagious" and therefore children need to be protected from the promotion of homosexuality in schools, and passing in the U.S. military's "don't ask, don't tell" policy. And both can co-exist with covering, such as in custody cases:

[When denying] custody to a lesbian mother in 1990, a Louisiana appellate court cited "open, indiscreet displays of affection beyond mere friendship . . . where the child is of an age where gender identity is being formed." If acceptable sexuality for same-sex couples is limited to the appearance of friendship, then the expectations for parents are clearly not orientation-neutral.

Notice as well why such covering is required—parental flaunting is dangerous because it could convert a child whose "gender identity is being formed." All three demands for assimilation are simultaneously in play—because children must not be converted, parents must pass to their children and cover to the courts. The shifts from conversion to passing to covering . . . are shifts in emphasis.

The book then considers covering as applied to race and sex, drawing its examples mostly from the employment context. One of the new wrinkles it examines is reverse covering, particularly with regard to women. For most non-dominant groups, the pressure to reverse cover comes from other group members. Women, however, are pressured to cover and reverse cover at the same time and by the same outside group (men), that is, "to be 'masculine' enough to be respected as workers, but also 'feminine' enough to be respected as women."

(Though the book focuses on groups currently protected by civil rights law, because it's written by a law professor, the book takes care to note that everyone covers in ways small and large: "the mainstream is a myth. . . . All of us struggle for self-expression; we all have covered selves.")

Finally, in the shortest section, the book looks at models of civil rights law. It considers two areas in which the idea of accommodation is supposed to be recognized, religion and disability, and examines the pressures towards assimilation within those areas of law. It then argues for a new model of civil rights:

  • The law right now tends to prohibit only discrimination based on immutable traits. This is misguided: the question should not be whether a person can change, but whether the person should be made to change.
  • One way the law can do this is by focusing on common liberties/fundamental rights, rather than on whether group X needs additional protection. This is partly because courts are more likely to be comfortable with such a formulation, and partly because the group X formulation brings up the question of what's essential to being part of group X, which is dangerously near stereotyping.
  • The law is limited in effectiveness and appropriateness when it comes to covering:

    When I hesitate before engaging in a public display of same-sex affection, I am not thinking of the state or my employer, but of the strangers around me and my own internal censor. And while I am often tempted to sue myself, this is not my healthiest impulse.

    Instead, civil rights law should be part of broader attempts to view ourselves and others with compassion and understanding.

On the whole, I think this is a well-written, useful, and accessible book. It's true that unless carefully deployed, the idea of covering could reinforce stereotypes. As a colleague of Yoshino's puts it, "One way minorities break stereotypes is by acting against them. If every time they do so, people assume they are 'covering' some essential stereotypical identity, the stereotypes will never go away." For this reason, the book attempts to emphasize individual autonomy and authenticity, rejecting demands to reverse cover as well as cover; I think this bears repeating, because it strikes me as the kind of point likely to get lost in general discussions. Also, because describing solutions is harder than describing problems, the final section feels a bit slight (and also strikes me as having somewhat more jargon than the prior sections). However, by targeting a general audience, the book necessarily limits the amount of legal implementation details it can offer.

The idea that everyone covers immediately resonated with me, and I have begun thinking about my own covering and whether all of it is necessary or useful. I hope that when others recognize the concept, they will do the same, and in the process gain awareness of and empathy for those who are pressured to cover without good reason.

(The book's preface, which functions as a short summary, can be read online, as can the scholarly law article which originated the concept (choose "View as PDF" from this Yale Law Journal page).)

(ETA: see also a long New York Times article by Yoshino, The Pressure to Cover, which functions as a long (5,000 words) summary. Thanks to [livejournal.com profile] ckd for the link.)

[Cross-posted to my booklog.]

kate_nepveu: sleeping cat carved in brown wood (Default)

Babies this week: a co-worker's first, early, and another co-worker's third, also early. My cousin's first was last week, also early. Just one left of the end February/early March due dates, my friend, though as I think she was having the easiest time of her pregnancy, I suppose it's not unreasonable.

[Edit: actually, my friend's baby arrived Saturday night, I just didn't know it until now. So no Leap Year babies in this crop, and no late ones either.]

Illnesses this week: Chad: rather sick. Me: feverish and tired for most of the week, but nothing else, yet. *crosses fingers*

Vanity this week: gave up on growing out my hair and got it cut yesterday. I'm currently considering whether I dislike it enough to get it cut again now; I think not, but just barely. Also bought a new suit—yes, I know, another, that's the fourth this year, but it was only $60 and it doesn't need alterations. I think my wardrobe's sufficiently stocked now, though.

Dog this week: best game ever: take one (1) favorite toy. Wrap in one (1) large towel. Knot ends. Give to dog, let fun commence. (Be sure not to knot too tightly, or else the dog will just rip the towel fabric rather than dig at and toss the towel around until it comes loose.)

Food this week: cheese lasagna. Mmmm, cheese, my Platonic ideal of lasagna. And very easy, too, especially if one uses (two 27 oz. jars of) pre-made sauce and Barilla no-boil noodles. Notes to self: don't bother slicing the mozzarella, just buy a couple of bags of shredded. Don't worry if the layers come up past the top of the pan, the grated (not shredded!) parmesan won't stick to the foil.

Movies this week: Lost in Translation. Mostly Chad has said what I would, but a couple of extra comments:

  • Opening credits consisting solely of a shot of Scarlett Johansson's butt in translucent panties? Strange.
  • Despite that, this was an incredibly lame R. The rating claimed to be for "some sexual content;" the movie featured one misunderstood prostitute, played for (awkward, uncomfortable) laughs and no real skin, and one strip-club dancer with three seconds of breast, and that was it. The ratings system is seriously screwed up, especially considering that The Passion of the Christ avoided an NC-17, seemingly without cuts.
  • I guess I'm just a narrative junkie, because I prefer to know that something happened in a movie. And to know what that was.

Public service announcement of the week: if you are linking to the New York Times, try putting the URL into this weblog-safe link generator. It won't expire, and you won't need a login, either. (The links generated are from the RSS feeds.)

Same-sex marriage news this week: unfortunately, this article about the latest developments regarding New Paltz isn't on the RSS feed for some reason. Offered without comment, because of its connection with my professional life.

Footnote of the week: the very, very last one (just hit end) in this decision, via The Volokh Conspiracy. "It is counterproductive for counsel to litter his brief with burdensome material such as 'WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!'"

And finally, spam of the week: two e-mails arrived at the same time, hawking Viagra, with rather good From: lines: Decrepitude K. Servomechanisms and Booker G. Assiduousness. I don't know, they have a ring.

Quick hits

Jul. 16th, 2003 06:38 pm
kate_nepveu: sleeping cat carved in brown wood (Default)

Blog-like items.

  • A Washington Post article on World Trade Center fraud. Which was very little compared to the overall size of relief efforts, but fascinating to read about all the same.
  • A droll WP article about a Democratic candidate forum hosted by the Human Rights Campaign:

    With that [introduction], seven of the nine Democrats -- only Sens. John Edwards and Bob Graham did not attend -- take the stage in a systematic effort to say, in a collective manner of speaking, that some of the Democrats' best friends are gay.


  • I frequently disagree with posts over at the Volokh Conspiracy, but Eugene Volokh has posted a cogent series regarding gay marriage, trying to look at the arguments offered against it in a concrete manner, rather than tossing around vague abstractions. Start with "How Sweet" and scroll up and up, to (so far) today's post "Still More on Gay Marriage".
  • Song lyrics of the day, courtesy of my morning commute CD:

    Wouldn't be here if the Athenia hadn't sunk
    Or if dear old dad hadn't got so drunk

    From the Old 97's "Rollerskate Skinny," off Satellite Rides. A close second is this verse from the same song:

    Ain't nobody gonna see eye to eye
    With a girl who's only gonna stand collarbone high
    Rain's gonna come in fair-sized drips
    We're gonna go to heaven wearing paper hat ships

    but that can't match the sheer "Huh?" value of the first.

kate_nepveu: sleeping cat carved in brown wood (Default)

I've seen some people saying, in the aftermath of today's decision in Lawrence v. Texas, that the Court's decision has somehow foreclosed a constitutional argument for gay marriage, because of the path it took to reaching its result. I think this is wrong, but explaining why will require a mini-lesson in constitutional law. (U.S. lawyers can probably skip this post.)

The path the Court was offered and didn't take is the one that most people thought was more likely: the equal protection argument. The Fourteenth Amendment says that no State shall "deny to any person within its jurisdiction the equal protection of the laws." The argument was that because Texas prohibited sodomy between persons of the same sex, and not persons of the opposite sex, that it denied equal protection of the laws.

I've seen people lamenting that the Court didn't take this path, because accepting that argument could lead towards gay marriage, where its current opinion doesn't. As a corollary, people have pointed out that accepting this argument would be a bigger extension of the Court's jurisprudence.

I think both of these are wrong, or at least not necessarily true. Taking them in reverse order:

In the post I linked to earlier, Professor Balkin states that by not using the equal protection argument, "the Court does not have to hold that gays are a suspect class or that classifications based on sexual orientation are entitled to heightened scrutiny." Which is true. But I think the Court could have invalidated the Texas statute without doing either of those. (Of course, Professor Balkin didn't say it had to do either, but I think a lot of people are assuming that.)

Equal protection jurisprudence is a three-tiered affair. To oversimplify slightly, classifications based on race are subject to strict scrutiny; gender, intermediate scrutiny; everything else, rational basis review. The tougher the scrutiny, the stronger the government interest behind the classification has to be. When the Court struck down Colorado's Amendment 2 (which said, you can't pass of any laws or ordinances that prohibit discrimination on the basis of sexual orientation) in Romer v. Evans, it said it was doing it under rational basis review. Many hoped that the Court would use this case to move sexual orientation into the same tier of scrutiny as gender.

Justice O'Connor's opinion, which concurred only in the result, would have invalidated the statute on rational basis review only, by extending Romer to hold that either moral disapproval or animus could never be a rational basis for a law. Justice O'Connor felt that the Texas law was only motivated by one or both of those, thus making it unconstitutional. (Note that O'Connor joined the Bowers majority opinion.) I think this would have been an entirely plausible majority opinion, and probably the one most people expected to see. So invalidating Texas's law could have been done on rational basis review, and a decision on equal protection grounds wouldn't necessarily have been a big step past Romer. And I think it's a tossup whether prohibitions on gay marriage would pass rational basis scrutiny at the Court.

The path the Court did take is what's known as the substantive due process argument. The Fourteenth Amendment says in part that no State shall "deprive any person of life, liberty, or property, without due process of law." The Court has defined "liberty" to include certain rights clustered around ideas of family, sexuality, reproduction, and privacy; these get labeled "fundamental rights." So, for instance, there's a fundamental right to direct the raising of your children, to access to contraception, and to abortion. Obviously these rights are subject to government regulation, but the government has a heavier burden to justify that regulation.

After today, there is a fundamental right to engage in private, consensual sexual conduct, no matter what gender your partner is. This stems from the recognition that such conduct "can be but one element in a personal bond that is more enduring" (slip opinion at 6) and that the ability to choose these personal bonds is central to the Fourteenth Amendment's liberty (slip opinion at 13).

Here's the thing. The Court has previously established that the right to marriage is also a fundamental right (in Zablocki v. Redhail, among others). And the Court's rationale for protecting private sexual conduct applies to marriage just as well—personal bonds, yes? So I think it's a small logical leap to find that marriage is a fundamental right, no matter what gender your would-be spouse is. (Obviously it's a bigger political and social leap for the Court.) Then we're back at the question of whether the government's interest in regulating that right is sufficient; and for fundamental rights, then the interest has to be quite strong: a compelling interest, limited by narrowly-drawn laws.

So, the lack of an equal protection argument doesn't mean that the constitutional argument for gay marriage is dead. On the contrary: while the standards of review tend to be squishy in practice (many people think Romer is not actually rational basis review, for instance), on its face, fundamental rights scrutiny is tougher than intermediate scrutiny, which is almost certainly the highest that sexual orientation would receive.

Do I expect to see the Supreme Court hold that gay marriage is constitutionally required? Yes. Do I expect to see it soon? Not necessarily. I don't know what rationale will be used, but it could be either equal protection or substantive due process; Lawrence v. Texas doesn't rule out either.

[Edited to fix one case name and add another.]


Jun. 26th, 2003 10:58 am
kate_nepveu: sleeping cat carved in brown wood (Default)

Texas's law prohibiting same-sex sodomy has been overturned, on the absolute best of the grounds offered to the court.

The AP has the PDF of the majority opinion up already, and at the bottom of page five I started jumping up and down in my chair:

The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.

Wow. Wow. Wow.

And explicitly refusing to decide on Equal Protection Grounds, because if so, "some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants."

(O'Connor concurs in the result only on Equal Protection Grounds, but there's still a majority for the privacy argument: so the answer to that question is "no.")

The final upshot:

Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. . . . The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.

Out of respect for my current happiness, I shall pointedly ignore Scalia and Thomas's dissenting opinions. Wow.

[ Edited to add: Professor Balkin has a good, more thorough breakdown of the decision, with some comments about the broader implications. ]

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