Monday, October 9, 2017
“It’s only a piece of paper.” This phrase can used to minimize the value of something. It has been leveled against court orders which can be, it is true, just a piece of paper unless they are enforced. However, it is the piece of paper that grants the right of enforcement, which is very significant indeed.
It would be easy to set forth a list of single pieces of paper that confer important rights. One such piece that would likely make that list is a birth certificate. And it is this particular paper that was the focus of a rather under-the-radar U. S. Supreme Court decision issued on the last day of the 2016-2017 term.
In Smith v. Pavan, the Court, in a Per Curium opinion, reversed the Arkansas Supreme Court in a case that involved whether Arkansas could refuse to list a non-biological same-sex parent on a birth certificate. The state Supreme Court had held that the 2015 U.S. Supreme Court decision in Obergefell v. Hodges did not mandate that the State of Arkansas place both same-sex parents on their child’s birth certificate. Specifically, the Court said that although the Obergefell decision mentioned birth certificates once, the reference was “related only to its observation that states conferred benefits on married couples.”
The U.S. Supreme Court, in reversing, seized on language in Obergefell’s next paragraph which declared that by not being permitted to marry, “same-sex couples have been denied the constellation of benefits that the states have linked to marriage.” Citing the same language that the Arkansas Supreme Court had referenced, then dismissed—the mention of birth certificates as one of the “governmental rights, benefits, and responsibilities” that are conferred on married people-- the U.S. Supreme Court in Pavan wrote that the mention of birth certificates in Obergefell was “no accident” as several of the Obergefell plaintiffs had challenged a state’s refusal to list a same-sex parent on a birth certificate.
The Pavan per curiam opinion explained that its Obergefell case required that now-married same-sex couples could not be denied that “constellation of rights” attendant to marital status, thus refusing to countenance the Arkansas Supreme Court’s narrower view.
This case was issued on the last day of a fairly quotidian term, a term without many cases of import, intentionally planned for fear of a four-four split. Interestingly, by the time of this decision, the Court was again at its full nine-justice strength.
This “opinion of the court” included a dissent authored by Neil Gorsuch, the Court’s newest member. And as Supreme Court watchers began their tradition of assessing the upcoming term in late September and early October, the Pavan case has received a bit more attention for exactly that reason. Since one of the cases identified as a major case of the term, the colloquially named gay wedding cake case, is set to be argued on December 5th, people are looking to this dissent as one way of assessing Justice Gorsuch’s Supreme Court persona.
Regardless of what Pavan says about Justice Gorsuch, is important for what it tells us about what the Court meant in Obergefell. Pieces of paper are important; they confer rights, and obligation, and status.
Thursday, August 24, 2017
In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.
I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.
In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.
Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.
Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.
Other conservatives have spoken out, too. Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.
But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda. But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.
“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr. Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.
Sunday, August 20, 2017
by Prof. Justine Dunlap
More than a fortnight ago, Scottish tennis player Andy Murray made my day. Mr. Murray, during a presser at Wimbledon, matter-of-factly corrected a reporter who asked a blanket question referencing victories at Wimbledon that completely ignored women’s tennis. In asking the question, the reporter said that a particular male tennis player was the “first American player to reach the semi-finals of a slam”… and Murray interrupted to add “male player.” The startled reporter replied, “Beg your pardon?” “Male player,” Murray restated.
So much about this is marvelous, it’s hard to know where to start. First, Murray offered his correction automatically and almost as an aside—albeit a terribly important one. He was just ensuring that the record was accurate. In so doing, his manner was significant. The rather understated way in which he remedied the reporter’s implicit bias (at best) subtly raised the question of how anyone could forget women’s tennis in the age of the Williams sisters. Second, Murray’s lack of drama in his correction allowed—forced?—the reporter to easily adopt Murray’s amendment….”that’s for sure,” the reporter added. Further, after the interchange began making the rounds on the internet, Andy’s mother added her thoughts in a tweet: “That’s my boy.”
So besides the deliciousness of it all, are there any takeaways other than the inherent value in the immediate correction of an error that discounted women’s contributions to the sport? I think there are at least two.
First, the way in which Murray made the correction was, as noted, nearly nonchalant. In this era of heated and hyperbolic rhetoric, a calm statement of corrective fact was an effective balm. As with an orator who lowers her voice to a whisper, or the generally quiet person who only occasionally chimes in, Murray’s audience—as well as his questioner—had no choice but to take notice of what he said. In short, Murray’s manner helped underscore his content.
Second, allies of all shapes, colors, and genders are important. Murray's correction was all the more welcome because he is male. This is especially so when contrasted with the relatively contemporaneous remark by tennis commentator John McEnroe that Serena Williams would be “like 700” if she played the men’s tennis circuit. Male feminists, that’s a good thing.