Sunday, June 28, 2015
In Obergefell v. Hodges, Justice Kennedy's rhetoric is elegant, and as a cultural document, his judicial opinion has been celebrated by many Americans--and many more will celebrate in the future. But as a teacher of constitutional law, I wish he hadn't combined the equal protection and due process arguments to strike down the ban against gay marriage.
Here's what Kennedy wrote:
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.
The straightforward argument from equal protection would have been easier to make, in my view; the due process argument--the argument that gay marriage per se is constitutional--would appear more difficult to make.
Homosexuality would seem to satisfy all the conventional requirements to be deemed a "suspect classification" that triggers strict scrutiny under the equal protection clause. Gays are a discrete and insular minority; suffer stigma; have endured a history of discrimination; and their sexual orientation--like that of heterosexuals--is probably immutable.
There could have also been some political dividends to be gained from making the argument that gays are a vulnerable group who have been wrongly denied equal rights by a prejudiced majority.
But Kennedy's approach mushes things, and it will be harder for con law teachers to explain to their students what precisely he meant in terms of either due process or equal protection.
Friday, June 26, 2015
Instructors of legal writing may wish to take note of Justice Scalia's memorable prose in his dissenting opinion in the gay marriage cases (I have placed in bold especially colorful language):
“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court....
Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.
The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.
Justice Kennedy said gay and lesbian couples have a fundamental right to marry.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”
And SCOTUS Blog commentary:
Wednesday, June 24, 2015
In a first, the NALSAR Law University in Hyderabad has issued a gender-neutral graduation certificate to a student who did not wish to be identified with honorific Mr or Ms but with "Mx".
Anindita Mukherjee, who graduated this year from the Law school, had requested the authorities to address her as "Mx" in her certificates and the university, which has probably become the first Indian educational institution to do so, accepted the "fact".
Mukherjee also prefers to be addressed as "they" rather than "he" or "she".
Note the "Mx." designation:
BabyCenter.com noticed thisemerging trend in its midyear report. Though gendered names like Noah and Emma remain super common, gender-neutral names like Amari, Karter, Phoenix, Quinn and Reese are rising in popularity too.
“As usual, baby names are reflecting a larger cultural shift,”says BabyCenter’s Global Editor in Chief Linda Murray. “Millennials are an open-minded and accepting group, and they don’t want their children to feel pressured to conform to stereotypes that might be restrictive.”
Monday, June 22, 2015
The Supreme Court will soon announce its decision in Obergefell v. Hodges, the gay marriage case.
SCOTUS Blog has covered some aspects of the case.
And reflections from the New Yorker:
"What does it feel like to have changed the world?” As the Supreme Court ruling on same-sex marriage approaches, many long-time gay-rights advocates tell me that they are being asked this question. It speaks to more than Obergefell v. Hodges, the case before the Court, or even gay marriage, but to the dramatic increase in acceptance that L.G.B.T. people are experiencing. Take, for example, Ireland’s vote for marriage equality and Caitlyn Jenner’s warmly received coming out. Last month, a Gallup poll showed that sixty per cent of Americans agree that marriage between same-sex couples should be recognized as valid. That number is the highest it’s been in the nineteen years that Gallup has been asking the question."
And (I am responsible for the text in bold relief):
Other polling shows that almost two-thirds of Americans expect the Supreme Court to legalize same-sex marriage nationwide with its Obergefell ruling. (It is already legal in thirty-seven states.) Most Supreme Court experts agree, and even conservative strategists don’t really want the legal chaos and social backlash that a ruling that rolls back gay marriage could bring. Having the gay-marriage battle continue “isn’t necessarily helpful for Republican candidates who are trying to appeal to a wider section of voters than just social conservatives,” Ron Bonjean, once an aide to former Senator Majority Leader Trent Lott, of Mississippi,” told Bloomberg Politics last week.
To be sure, there has been an effort by some conservatives to oppose the Court's recognition of gay marriage, but the effort is couched in language that is conspicuously removed from the rhetoric of morality, a seeming concession, in its own way, to the validity of gay rights in the abstract.
Friday, June 19, 2015
Seoul, the capital of South Korea, is known for, among other things, technological innovation, the world's most efficient subway system, universities brimming with resourceful and creative minds, and, to some extent,.....its hatred against the LGBT community, a reminder of Korea's gothic remnants.
Seoul's mayor Park Won-soon is an LGBT ally, but in 2014 he caved to pressure from conservative Christians and decided to scrap his once plan to install a city-wide human rights charter that would protect LGBT folk.
|(Left photo) Participants attend the opening ceremony of the Korea Queer Festival 2015 at Seoul Plaza in downtown Seoul on June 9, holding up cards that say “We become stronger as we connect.” Protesters, meanwhile, hold a rally opposing the event in front of Deoksugung Palace near the plaza earlier in the day. (Yonhap)|
Recently, Seoul 's police department refused to permit an LGBT parade in the city. Conservative pastors were elated. But the city's administrative court declared the police decision unlawful, as no threat of imminent harm appeared to be presented by the parade. Moreover, the court noted that prejudice could not serve as a motivation to block the parade.
Wednesday, June 17, 2015
Interesting piece from the Boston Globe:
If we accept that gender is fluid — a reflection of some inexplicable spiritual thing inside of us — why not race? Why do we police the boundaries of blackness more rigorously than we police womanhood?
The general consensus seems to be that as much as we want to do away with racial differences and as deeply as we believe in race as a social construct, we can’t accept Dolezal as a black woman trapped in a spray-tanned blonde’s body.
“Rachel Dolezal . . . may be connected to black communities and feel an affinity with the styles and cultural innovations of black people,” Alicia Walters, a black woman from Spokane wrote in The Guardian. “But the black identity cannot be put on like a pair of shoes.”
But wait a minute. I thought we just agreed that the female identity can be put on like a red mini-dress by Donna Karan. What gives? How can blackness — with all its shades and incredible diversity — be more immutable than manhood itself?
In a cozy cottage decorated with butterflies to symbolize transformation, Katherine Boone was recovering in April from the operation that had changed her, in the most intimate part of her body, from a biological male into a female.
It was not easy. She retched for days afterward. She could hardly eat. She did not seem empowered; she seemed regressed.
“I just want to hold Emma,” she said in her darkened room at the bed-and-breakfast in New Hope, Pa., run by the doctor who performed the operation in a hospital nearby. Emma is her black and white cat, at her home outside Syracuse in central New York State, 250 miles away.
Monday, June 15, 2015
Who knew Ireland would the most progressive nation on earth with regard to LGBT issues?
This month Ireland may go from not legally recognizing transgender people to having one of the best trans identity laws in the world.
Two weeks ago, the nation made history when it became thefirst country in the world to approve gay marriage by a popular vote.
Ireland may once again make history by allowing transgender people over the age of 18 to self-declare their gender on legal documents solely based on their self-determination, and without any medical intervention. The legislation is scheduled to go to committee stage on June 17.
Friday, June 5, 2015
Staff Sgt. Loeri Harrison could receive the paperwork any day now, forms certifying that after an exemplary eight-year Army career, she is no longer fit for duty and must leave Fort Bragg because she is transgender.
Early this year, Senior Airman Logan Ireland feared he might face a similar fate when he disclosed to his commanders during a recent deployment in Afghanistan that he transitioned from female to male. Yet, his supervisors have been supportive, allowing him to wear male uniforms and adhere to male grooming standards even though Air Force records continue to label him as female.
Defense Secretary Ashton Carter should take on what they refused to do. The current policies leave transgender troops vulnerable to discrimination that the Justice Department and the Equal Employment Opportunity Commission describe as a violation of the Civil Rights Act of 1964. Medical and military experts who have studied the policies have concluded that there is no rationale for disqualifying transgender troops from serving on medical grounds.
Wednesday, June 3, 2015
Celebrities, along with President Obama, are praising Caitlin Jenner for coming out as transgender person. But not everyone in the transgender community is praising her.
“Jenner’s a rich white bitch – she can pay for everything she needs. But I think she now needs to put some of that money back into the transgender community as she has taken a lot. All these years we have been abused and battered, yet she has used none of her power to help the community and bring about change.”
Thus spoke Janetta Johnson. She continued:
Janetta Johnson, a black trans woman who works with TGI Justice, an advocacy group for transgender prisoners and their families, said that the lack of recognition on Jenner’s part of the hard work that had gone into trying to end confusion over gender pronouns was regrettable. “For her to come out as a trans woman and say ‘Oh, please keep calling me “he”’ – I think she may have set us back.”
Johnson said she now wanted to see Jenner give back to the trans community some of what she had taken.
Monday, June 1, 2015
On SSRN, Stuart Chinn has uploaded "Situating 'Groups' in Constitutional Argument: Interrogating Judicial Arguments on Economic Rights, Gender Equality, and Gay Equality." The abstract reads:
The New Deal transformation in Commerce Clause and Due Process jurisprudence marked, among other things, a shift in judicial attention from groups defined by economic relationships to groups defined by social status. Hence, one might plausibly see judicial activism in defense of freedom of contract during the Lochner era subsequently giving way, in part, to the judicial protection of racial minorities, women, and gay persons in the decades after Brown v. Board of Education.
In this paper, I attempt to illuminate this shift in judicial attention by examining the Supreme Court's rhetoric surrounding groups in the context of the Lochner era cases on wages and hours regulations and the post-Brown v. Board of Education era cases on gender and gay equality. I situate my inquiry in the context of broader themes in American political thought, with particular attention to the core concepts and principles of American liberalism. In examining the recurrent modes of argument surrounding groups in these Supreme Court cases, I discuss how the Court's concept of groups — and how its views of American society more broadly — has varied in different constitutional doctrinal contexts.
My examination of these cases yields two key findings. The first finding speaks to a similarity across these contexts of Supreme Court jurisprudence: when confronted by reforms calling for special or different legal treatment of specific groups, both pro-reform and anti-reform Supreme Court justices in these three doctrinal contexts put forth arguments about group-sameness and group-difference. That is, group-sameness and group-difference arguments were deployed by Justices on both sides of the various legal controversies in these doctrinal areas. The second finding speaks to a difference between these doctrinal contexts: while arguments in defense of special legal treatment for groups in the Lochner era cases on wages and hours regulations were linked to larger, broader, more systemic goals, no such sensibility informs the judicial protection of groups in the post-Brown cases on gender and gay equality. Rather, in more recent years, the judicial defense of groups largely proceeds from a judicial concern for only the groups in question. Thus, we see in the more contemporary cases examples of judicial arguments about “societal segmentation” — a significant mode of legal and political argument that, I assert, has appeared episodically throughout American history. In the final Part, I set forth a more general definition of societal segmentation arguments, and I discuss how notions of segmentation may be situated in relation to the principles of American liberalism.
Sunday, May 24, 2015
BBC reports on surprising, and rather liberal, comments offered by the Dublin Archbishop after Ireland became the first nation to legalize gay marriage:
Diarmuid Martin, the archbishop of Dublin, said the Church in Ireland needed to reconnect with young people.
The referendum found 62% were in favour of changing the constitution to allow gay and lesbian couples to marry.
The archbishop voted 'No' in the referendum
The archbishop told the broadcaster RTE: "We [the Church] have to stop and have a reality check, not move into denial of the realities.
"We won't begin again with a sense of renewal, with a sense of denial.
"I appreciate how gay and lesbian men and women feel on this day. That they feel this is something that is enriching the way they live. I think it is a social revolution."
The archbishop personally voted "No" arguing that gay rights should be respected "without changing the definition of marriage".
"I ask myself, most of these young people who voted yes are products of our Catholic school system for 12 years. I'm saying there's a big challenge there to see how we get across the message of the Church," he added.
Ireland is the first country in the world to legalise same-sex marriage through a popular vote, and its referendum was held 22 years after homosexual acts were decriminalised in the Republic of Ireland.
The vote in Ireland illuminates a dynamic shift on LGBT issues among Catholics and people of faith across the globe. Today about 60% of Catholics in the United States support gay marriage, compared to about 36% a decade ago.
In fact, many who voted “yes” on gay marriage did so because of their faith, not in spite of it. One elderly Irish couple put it this way: “We are Catholics, and we are taught to believe in compassion and love and fairness and inclusion. Equality, that’s all we’re voting for.”
The idea of an inclusive Catholic Church may have seemed like a pipe dream not many years ago, but under the tenure of Francis the Troublemaker, it doesn’t seem that farfetched. Two summers ago the Pope tweeted, “Let the Church always be a place of mercy and hope, where everyone is welcomed, loved and forgiven.”
On the eve of Pentecost, it seems that Ireland has taken that message to heart and sent an unmistakable message to the Church and society at large: A community that excludes anyone is no community at all.
Monday, May 18, 2015
One of the nation’s largest public school systems is preparing to include gender identity to its classroom curriculum, including lessons on sexual fluidity and spectrum – the idea that there’s no such thing as 100 percent boys or 100 percent girls.
Fairfax County Public Schools released a report recommending changes to their family life curriculum for grades 7 through 12. The changes, which critics call radical gender ideology, will be formally introduced next week.
“The larger picture is this is really an attack on nature itself – the created order,” said Peter Sprigg of the Family Research Council.
“Human beings are created male and female. But the current transgender ideology goes way beyond that. They’re telling us you can be both genders, you can be no gender, you can be a gender that you make up for yourself. And we’re supposed to affirm all of it.”
The plan calls for teaching seventh graders about transgenderism and tenth graders about the concept that sexuality is a broader spectrum --- but it sure smells like unadulterated sex indoctrination.
Friday, May 8, 2015
For some transgender high school students in the Virginia suburbs, a school board decision Thursday could mean an end to death threats and the beginning of freedom to live openly as who they truly are.
But to some parents, adding two words to a nondiscrimination policy — “gender identity,” words intended to protect transgender students in the public schools — could be a reason to remove their children from school because of fears that allowing genders to mix in bathrooms and locker rooms could be a safety threat.
What began in March as an effort to protect transgender students and staff in Fairfax County schools has inspired a national debate on gender identity issues for children. It has also garnered opposition from Virginia lawmakers who see the proposal as overreach by a local governing body on an issue where no state law exists.
Wednesday, May 6, 2015
Juddging from Justice Samuel Alito’s contributions during Tuesday’s oral arguments in Obergefell v. Hodges, the same-sex marriage case before the Supreme Court, he is a little hung up on polygamy. Over the course of two and a half hours, he asked about little else—other than sibling marriage and the sexual relations of the ancient Greeks.
Wednesday, April 29, 2015
Today gay marriage is obviously the big issue. And there a lot of articles and commentaries about it.
Here are a couple that I chose. The Most Awkward Moments during oral argument, discussed here.
From the NYT.
From the Fox News.
A commentary by Toobin in the New Yorker; he thinks the Court will decide in favor of gay marriage.
An editorial by the conservative National Review.
Monday, April 27, 2015
There are some obvious reasons not to be sympathetic to Bruce Jenner's coming out: for one, he lives with the Kardashians; for another, the coming out looks like a publicity ploy by an aging celebrity who had milked everything once of fame for his achievements in an obscure sport called the decathlon.
But then there was the response by his family, which was admirable:
“I am at peace with what he is and what he’s doing,” his mother, Esther Jenner, said in a separately filmed portion of the two-hour segment. “I never thought I could be more proud of Bruce when he reached his goal in 1976, but I’m more proud of him now.” Kim Kardashian tweeted, “Love is the courage to live the truest, best version of yourself. Bruce is love. I love you Bruce. #ProudDaughter.” (Jenner told Sawyer that he first came out to Kim, and that she once walked in on him in a dress.)
Seventeen-year-old Kylie Jenner, Jenner’s youngest child, tweeted, “Understandingly, this has been very hard for me. You will hear what I have to say when I’m ready to but this isn’t about me. I’m so proud of you, Dad. You are so brave. My beautiful Hero.” In this unconditional and unquestioning way, the Kardashian and Jenner clans are defining what it means to be a family today. They may be superficial, but their support for Bruce is notable for its candid demonstration of acceptance.