September 1, 2007
Maine Supreme Court Supports Same-Sex Adoption
On Aug. 30, 2007, the Maine Supreme Court overturned a decision by the probate court refusing to grant a petition for adoption filed by a same-sex couple.
Reviewing the decision of the Supreme Court, it seems obvious that the Probate Court disregarded the best interest of the children based on semantics. The Probate Court refused to grant the petition because it did not have "jurisdiction" under the Maine adoption statute. The statute clearly provides for adoption by one unmarried person, but neither explicitly forbids or denies adoption by two unmarried persons.
In Adoption of M.A., 2007 M.E. 123 (Me. 2007), Supreme Court wisely pointed out that the same-sex couple could easily get around the provisions and adopt children together by filing separate petitions and consolidating them or by a second-parent adoption. Thus, the Court noted that the statute is ambiguous and turned to the purpose of the statute for guidance.
Obviously, the primary purpose for adoption is to provide for a child's best interest by allowing the child to grow up with a parent or parents where the child otherwise might have none (in the case of a foster child, for instance--exactly the type of children involved in this case). Id. at *24. In fact, in my humble opinion, the more caring people interested in raising a child, the better. Additionally, it is important to note that the two children involved in this case suffered from post-traumatic stress disorder and attention deficit disorder, among other things, due (in part) to the fact that their birth parents' rights had been terminated. The children had been living with the couple for approximately 5 years. Both the guardian ad litem and the home study recommended the couple as fit, able parents. Id. at *4. It would be traumatic for the children to be removed from the care of their loving foster parents because of an ambiguous adoption statute.
Noting that the adoption statute should be "liberally construed," the court held that the probate court has jurisdiction to permit same-sex adoptions. Id. at 31.
Due Process in Varnum v. Brien
Varnum v. Brien, the Iowa trial court opinion striking down the state's prohibition on recognition of same-sex marriages, merits careful review. State officials have vowed to appeal, so we do not know if the holding will survive. Regardless, as one who has written an article on conflicting state trial and appellate opinions that are under appeal to the state supreme court, I believe that the trial court's reasoning is interesting and important as a potential indication of where the law is going. This is especially true in the instant case, where the trial judge wrote some 60 manuscript pages in which he adopted the findings of the plaintiffs wholesale as the basis for his analysis. His account of those findings merits a post of its own, as does his discussion of defendant's "expert" testimony. I'll deliver those posts later.
First, however, the core legal analysis, which in turn has two parts, each deserving its own post. As the quotation from the conclusion that I posted earlier indicates, the court found both due process and equal protection reasons for striking down the prohibition on same-sex marriages. This post addresses the due process analysis.
The Varnum judge asserts that "[b]oth the Iowa Supreme Court and the United States Supreme Court have recognized that the right to marry is a fundamental right." Varnum at 43. In addition to Loving v. Virginia, 388 U.S. 1 (1967), he cites Sioux City Police Officers' Ass'n. v. City of Sioux City, 495 N.W.2d 687 (Iowa 1993). Id. Under Sioux City, an Iowa law that "significantly interferes" with the right to marry invites strict scrutiny as the correct basis for judicial review. Id. Strict scrutiny has the effect, inter alia, of shifting the burden of proof from the petitioner to the defendant, who "must prove that the law is narrowly tailored to the achievement of a compelling state interest." Id.
To this point, the Iowa judge's analysis follows federal precedent closely, citing Zablocki v. Redhail, 434 U.S. 374 (1978) and City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), as well as Loving and corresponding state precedent in Sioux City Police. Id.
He departs significantly, however, from federal precedent in the next section in a way that I find fascinating. He dismisses defendant's claim that "because no state Supreme Court or United States Supreme Court decision has declared same-sex marriage to be a fundamental right, this Court is precluded from finding the existence of such a right." Id at 44. "[T]he Iowa appellate courts have acknowledged that Due Process rights are fluid, and that such protections 'should not ultimately hinge upon whether the right sought to be recognized has been historically afforded.'" Id.
With this claim, the Varnum judge clearly differs with the U.S. Supreme Court in Bowers v. Hardwick, and with Antonin Scalia dissenting in Lawrence v. Texas.
In overruling Bowers, the Lawrence majority offered an extended discussion of the history of sodomy statutes and their enforcement in the United States, concluding that "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter." Lawrence v. Texas, 539 U.S. 558, 568 (2003). Scalia responded, "This observation in no way casts into doubt the 'definitive [historical] conclusion' on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general -- regardless of whether it was performed by same-sex or opposite-sex couples." Id. at 596 (Scalia dissenting). This assertion is part of Scalia's larger recitation of cases holding that heightened scrutiny is available under substantive due process doctrine only for "rights which are 'deeply rooted in this Nation's history and tradition.'" Id. at 593.
So it is that the battle over same-sex marriage is important not only for its impact on same-sex couples, but also as an example of debate over substantive due process, which in turn is a debate over whether history is a monolith, anchoring the Constitution and warding off innovation, or a fluid set of events against which courts should reevaluate laws in order to detect injustice that seemed unexceptionable in the past. See id. at 578-79. The Varnum court offers an even stronger version of history as fluidity than did Justice Kennedy in his Lawrence opinion. Kennedy offered a substantive historical riposte, refuting the claim of the Bowers court that sodomy statutes had remained much the same from 1533 to 1986. Id. at 568-70.
The Varnum court, by contrast, seems to argue that it should not have to consider the substantive historical claims of the defendant because the absence of a right in the past simpliciter is not an important piece of evidence. Id at 44. This opinion cites a string of Iowa opinions dating back to 1839 (refusal to return a slave to his owner) and including various steps toward gender neutrality in family law. Id. This reasoning allows the court to do two things.
First, it provides the basis for pride in Iowa's historical record regarding advances toward legal equality.
Second, it sets up a return to Loving with the claim, "[t]he fact that there was no historical tradition of interracial marriage in Virginia did not preclude the Court from holding that the fundamental right to marriage was violated through Virginia's prohibition against interracial marriage." Id. at 45.
This observation, of course, points up the silliness of the argument for history as monolith. By 1776, North America had been part of the British Empire for 169 years, since the founding of Jamestown. That fact did not stop the colonists from overthrowing royal rule in the colonies when the King and his agents consistently deprived the colonists of their rights. Protection of the citizens' natural rights is far more important than precedent in the American legal and political tradition.
The court then listed the interests that the defendant offered in support of the prohibition on same-sex marriages. This passage, along with others, indicates the fundamental problem that conservatives face in explaining their opposition to same-sex marriage: "Though the Defendant cites an abundance of case law indicating that Courts have long considered marriage to be an important relationship, the Defendant makes no argument that promoting procreation, child rearing by a mother and father in a marriage relationship, promoting stability in opposite sex relationships, promoting the concept of traditional marriage or conservation of state and private resources are compelling state interests, despite the fact that it is his burden to do so." Varnum at 45.
The court found that defendant had failed to demonstrate either a compelling state interest for the prohibition on same-sex marriages, or that such prohibition was narrowly tailored to achieve any of the stated interests. Id at 45-46. It turns out that, absent overt appeal to religious authority, there is no reason to prohibit recognition of same-sex marriages. Conservatives have a repertoire of conclusory claims about why they think that recognition of same-sex marriages would harm the entire social order, but they have no evidence to support such claims, as the Varnum court effectively held with its review of defendant's proffered justifications.
As Scalia claimed in both Lawrence (539 U.S. at 602) and Romer v. Evans (517 U.S. 620, 653 (1996)), this indicates that the Varnum court has largely accepted the "homosexual agenda." Scalia considers this acceptance a gross failure of judicial rectitude. Seems only reasonable to me. As I will explain in subsequent posts, the Varnum court does an exceptional job in explaining both the empirical and the legal basis for enshrining the "homosexual agenda" in American law.
August 31, 2007
"[T]he exclusion of same-sex couples from marriage is... arbitrary."
An Iowa trial judge has issued an order in Varnum v. Brien finding that the state's prohibition on recognition of same-sex marriages is "arbitrary" (at 61). "Because [the statute] violates Plaintiffs' due process and equal protection rights for the aforementioned reasons including, but not limited to, the absence of a rational relationship to the achievement of any legitimate governmental interest, the Court concludes it is unconstitutional and invalid. Couples, such as Plaintiffs, who are otherwise qualified to marry one another may not be denied licenses to marry or certificates of marriage or in any other way prevented from entering into civil marriage pursuant to Iowa Code Chapter 595 by reason of the fact that both persons comprising such a couple are of the same sex." Id.
We will discuss this opinion in greater detail in future posts, but we wanted to make the opinion itself available as soon as possible. You can download a copy of the opinion from Lambda Legal's web site by clicking here. Scroll to the bottom of the page for a PDF copy of the opinion (be forewarned -- it's a 27 mb file).
August 30, 2007
Nothing Worse than Being Queer
Republican Senators have already begun to call for the resignation of Senator Larry Craig (R-ID) after he pled guilty to disorderly conduct in order to settle a charge involving alleged sexual activity in a men's restroom at the Minneapolis airport. This is an important indication that the obsession with lesbian/gay identity that the dissent identified in Bowers v. Hardwick, 478 U.S. 186, 200 (1986) (Blackmun dissenting), continues to motivate many public officials, especially Republicans.
Craig's alleged sin is so severe that the mere allegation of it alone is sufficient to produce calls for his resignation from other Republicans. Many of these are undoubtedly the same Republicans who have resolutely defended Alberto Gonzalez throughout the scandal involving the politicized firing of U.S. Attorneys. Repeated allegations of abuse of legal authority by the Attorney General is not enough to overcome the partisan loyalties of the Republican leadership, but make one gesture to an undercover cop in a men's room, and it's all over.
This is paranoid heterosexual supremacy (if you'll forgive the redundancy) in action. The result is a warping effect on the law.
During my LGBT legal issues course this fall, I will have my students read Elizabeth Erin Bosquet, Contextualizing and Analyzing Alabama’s Approach to Gay and Lesbian Custody Rights, 51 Ala. L. Rev. 1625 (2000). Bosquet begins the article by reporting on Ex parte D.W.W., 717 So. 2d 793 (Ala. 1998), where the Alabama Supreme Court upheld the trial court's grant of custody of two children to their father.
According to the trial court, the father had a history of serious alcohol abuse and violence. He had threatened to kill the mother, the children, and others. He had put his infant son into a clothes dryer, totalled his car while his 23-month-old daughter was riding in the car wearing no safety belt, and returned the children from visits with flea bites and scabies. Bosquet at 1625-26; see also, D.W.W., 717 So. 2d at 797-98 (Kennedy dissenting, listing 11 items from the trial record indicating father's lack of responsibility and of parenting skills).
What does a mother have to do in order to be a worse parent than this father? Enter a lesbian relationship.
According to the Alabama Supreme Court, "Even without this evidence that the children have been adversely affected by their mother's relationship, the trial court would have been justified in restricting R.W.'s visitation, in order to limit the children's exposure to their mother's lesbian lifestyle. When a noncustodial parent is involved in a continuing homosexual relationship, restrictions on that parent's visitation rights have been widely held to be proper. Carroll J. Miller, Annotation, Visitation Rights of Homosexual or Lesbian Parent, 36 A.L.R. 4th 997 (1985)." D.W.W., 717 So. 2d at 796.
In 1999, a soldier named Barry Winchell died in his sleep at Fort Campbell Army base when one of his fellow soldiers bludgeoned him to death with a baseball bat. The trauma surgeon in Nashville who tried to save Winchell's life told me that his brains were literally lying on the table next to his head when she got to him. Why did Winchell's attacker bludgeon him to death? Because Winchell was known to be dating a transgender person in Nashville, and Winchell had bested him in a fist fight the night before, and the attacker wasn't going to let any faggot get away with kicking his ass.
By all accounts, Winchell was an outstanding soldier with considerable promise for a military career. His attacker almost didn't become a soldier at all because of arrests before he enlisted.
Given the current exclusion of openly lesbian/gay persons from the U.S. military, one must infer that persons with arrest records are necessarily better soldiers than any openly lesbian or gay person.
These are only the obvious examples that I can come up with off the top of my head. Anyone who would make some sense out of bizarre legal and policy choices involving sexual orientation must begin by understanding the principle that, for many judges and legislators, literally nothing could be worse than being lesbian/gay, and anyone who admits to such identity is therefore a choice target for all manner of discrimination.
August 29, 2007
Of course everyone is a-twitter about news of Senator Larry Craig's admission that he pleaded guilty to disorderly conduct after allegedly soliciting sex with an undercover police officer in a men's restroom at the Minneapolis airport. Craig (R-ID) appeared with his wife to announce that he is not gay.
From a queer perspective, that is a highly plausible, almost indisputable, claim. According to queer theorists, the fact that a man has sex with other men does not necessarily make him "gay." Gayness is largely a matter of self-identification.
One argument that conservatives offer for formal discrimination against lesbians and gay men is that it will deter individuals from so identifying. Craig is only the latest example demonstrating that this logic just doesn't work.
I should be very clear at the outset: I think the best reasons not to discriminate on the basis of sexual orientation or gender identity is that no valid reason exists for such discrimination (outside of churches, which of course are and should be free under the First Amendment to adopt whatever discriminatory policies they wish -- white supremacist, male supremacist, heterosexual supremacist, etc.), and that many valid reasons exist to prohibit such discrimination.
But the point remains that, even if you think the world is a better place with fewer LGBT persons in it, the evidence overwhelmingly indicates that even persons with extremely strong motivations, such as a successful career in politics, for avoiding same-sex sexual activity find it almost impossible to do so. Part of the problem with the debate is that, every time someone like a Republican United States Senator from a conservative state gets caught with his hands in another man's pants, most observers tend to have forgotten the last time it happened, such that they think this is an unusual event.
This time around, of course, the New York Times recalled the Mark Foley episode of just a year or so ago. Foley was a Republican member of the House from Florida who got caught sending suggestive e-mails to congressional pages. But virtually everyone has forgotten about John Paulk. Paulk appeared with his wife on the cover of Newsweek in 1998 as the poster boy of the "ex-gay" movement, which promotes the idea that lesbians and gay men can become heterosexual with the right combination of psychotherapy and Christian conversion.
Paulk got caught in a gay bar in Washington, D.C. in 2000. He said he only went in to use the bathroom. He failed to explain what he planned to use the bathroom for.
These episodes illustrate the utility of LGBT rights claims for thinking about the purpose of law. For conservatives, the moral signal of sodomy statutes and prohibitions on recognizing same-sex marriages are essential to keep most individuals on the (ahem) straight and narrow path. The fact that such signals are never 100% effective is no reason to get rid of them because they represent, at least according to conservatives, the prevailing moral sentiment of the culture.
Liberals are more interested in evaluating the practical implications of legislation, but they are so in part because of their own moral imperatives.
Liberals emphasize the harm that Larry Craig has just suffered, but also the harm his wife and other family members have suffered, because of the fact that Craig apparently has sexual urges that he finds very hard to control. Heterosexual supremacy, in other words, is not a morally superior framework. Instead, it creates moral hazards.
Few LGBT activists couch their arguments in terms of morality, preferring instead to take the absurd position that the state should not try to regulate morality. All law deals with morality. Whether one obeys the speed limit is, in an important sense, a moral issue. I agree with Chai Feldblum and Carlos Ball that LGBT activists should articulate the positive moral arguments on behalf of equality for LGBT persons, rather than conceding the morality argument to conservatives. For further elaboration of my own thinking on this issue, see my article at SSRN.
The solution is not to repeal statutes prohibiting public sex, although at least some gay men would advocate that course. The solution is to create a society in which people like Larry Craig feel no need to conceal their sexual orientation, such that they can form healthy relationships that include legal forms of sexual activity.
Regardless of what you think about same-sex relationships, insofar as one of the key issues for equal protection analysis in the constitutional doctrine of the United States is access to full participation in the political process, I guarantee that the same fears that keep people like Larry Craig in the closet also keep them from participating fully on their own behalf in the political process. It sounds strange to say that a United States Senator cannot participate fully in the political process, and I don't mean here that his arrest and guilty plea in Minnesota might cause him to lose his next election.
I mean that we cannot now know what Larry Craig might have accomplished in his political career had he been able to marry a man rather than marrying his wife. I guess the key reason why I'm not a conservative is that I don't understand why that would be a bad thing.
Chicago City Attys Claim EP Clause Does Not Protect Gays
In a strange legal move, the Attorneys for the City of Chicago filed a Motion to Dismiss claiming that gays (as a group) are not protected by the Equal Protection Clause. This position seems strange, given the proper interpretation of the Equal Protection Clause, as set forth in cases like Romer v. Evans, 517 U.S. 620 (1996). In Romer, the Supreme Court of the United States explained that: "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification [or, in this case, treatment under the law] so long as it bears a rational relation to some legitimate end." Id. at 631.
Thus, even if gays and lesbians are not considered a suspect class and entitled to heightened strict or intermediate scrutiny, they are certainly protected, in some measure, under the Equal Protection Clause. At the very least, the Equal Protection Clause requires the police (if the allegations of the plaintiff are true) to justify their actions under the lowest form of review.
This case arose when a man was arrested and placed in the backseat of a police car. When he tried to use his phone, he alleges that he was dragged out of the car and beaten while the policemen used homosexual epithets. When he began to bleed, he informed the police officers that he was HIV positive and he was taken to a hospital for treatment. Subsequently, he filed a lawsuit against the police officers alleging that he was beaten due to his sexual orientation. The full text of the story can be found in Vol. 8, No.51 of the Chicago Free Press (Aug. 22, 2007).
August 28, 2007
Lesbian Asylum Claim and Queer Theory
Mockeviciene v. U.S., 2007 U.S. App. Lexis 15167 (CA11 June 26, 2007) (UNPUBLISHED), upholds the decisions of an Immigration Judge (IJ) and the Board of Immigration Appeals denying a petition for asylum and withholding of removal. Petitioner based her claim on a fear of persecution in her home country of Lithuania because of sexual orientation.
According to the circuit court, "The IJ expressly found that Mockeviciene was not credible because, primarily, he did not believe she was actually a lesbian." Id. at *6.
The issue of asylum claims based on fear of persecution because of one's sexual orientation is fascinating and important. However, the primary point of the current post is more to connect the reasoning of the IJ in this case with the logic of queer theory. Anyone who is interested in the history of allowing asylum claims based on sexual orientation should read Barney Frank's chapter on immigration law in Creating Change: Sexuality, Public Policy, and Civil Rights (John D'Emilio, William B. Turner, and Urvashi Vaid, eds. 2000). I don't address asylum claims specifically, but I do provide a history of the statutory exclusion of lesbian/gay aliens from the U.S., 1917 to 1990, in "Lesbian/Gay Rights and Immigration Policy: Lobbying to End the Medical Model," 7 J. of Policy Hist. 208 (1995). See also, Victoria Neilson, "Homosexual or Female? Applying Gender-Based Asylum Jurisprudence to Lesbian Asylum Claims," 16 Stan. L. & Pol'y Rev. 417 (2005); Fadi Hanna, Case Comment: Punishing Masculinity in Gay Asylum Claims, 114 Yale L.J. 913 (2005).
One of the key moves in queer theory is to examine who has the authority to claim what types of knowledge, and how that knowledge gets used. Building on feminist theory, queer theorists note that the prevailing definition of "homosexual," at least before the early 1970s, had the effect of disauthorizing queers to speak for themselves. That definition involved assertions of psychopathology, implying that "homosexuals" are incapable of full political participation. The question of psychopathlogy continues to arise even though the American Psychiatric Association and the American Psychological Association have both disavowed the claim that "homosexual" identity necessarily indicates pathology.
In other words, the issue is predominantly political (as it always was -- there was never any medical evidence to support the assertion that "homosexuals" were mentally ill to begin with). The Immigration Judge has the authority to decide if a given asylum seeker is really a lesbian or not. Even if we wish to insist that IJ/BIA decisions are a matter of law, not politics, still queer theorists would insist that political considerations broadly defined have an impact on any interaction between a litigant, especially an asylum-seeker, and a judge. Power differentials necessarily inform such situations.
The IJ did articulate specific criteria for his (?) conclusion that Mockeviciene was not credible in claiming to be a lesbian. The circuit court responded that "[w]e are skeptical of the reasoning the IJ used to determine his adverse credibility finding. The fact that Mockeviciene had not been in a recent relationship with a woman is not probative of her sexual orientation. And contrary to the IJ's findings, Mockeviciene did not define being a lesbian as 'not necessarily involv[ing] sexual relationship,' but, rather, when the IJ asked her what she thought being a lesbian meant, she responded that '[i]t doesn't have to be a sexual affair,' and added that '[s]ex is necessary between two lesbians. I want to say that I want to have sex with the woman. I cannot have it with a man.'" Id. at *13-*14.
Perhaps the IJ could assert that she (?) took judicial notice of the fact that "lesbian" necessarily denotes a woman who desires a sexual relationship with another woman. Presumably many persons would find such a definition unobjectionable.
But if the court would decide whether the petitioner fits the definition of "lesbian," then the court should also consider evidence in support of the petitioner's testimony. Anyone who is familiar with the literature would immediately turn to Adrienne Rich's famous essay, "The Woman-Identified Woman," which includes a definition of "lesbian" that does not require "sex" as a criterion.
The key queer theoretical point here is that the important dynamic is not the presence or absence of sex. The important dynamic involves who gets to decide whether a given individual is a lesbian or not, and what procedure (or lack of procedure) the decision maker must use in arriving at a conclusion. The IJ, presumably operating with a hermeneutic of suspicion regarding asylum seekers generally, found readily available the definition of "lesbian" as a hook for hanging hir determination that Mockeviciene lacked credibility.
Note in passing that Mockeviciene "testified that from 1994 until she left the country in 2000, the Lithuanian police searched her apartment without a warrant, had her terminated from her employment, improperly evicted her from her apartment, and twice detained her and beat her, all on account of her sexual orientation." Id. at *2. Her litany of harassment -- persecution? -- began when she told her husband that she was a lesbian. He allegedly beat and raped her while friends held her down. Id. at *3. After that, she suffered mostly at the hands of the constabulary. A feminist/queer analysis would note the overlap between patriarchal power in the home and police power in the street (or, police power in the home as well, since Mockeviciene claims to have returned from vacation only to find someone else living in her apartment, replete with the requisite documentation, id.).
Of course, one must also note that Mockeviciene undermined her own credibility by getting married to a man during this process. Having explained why it doubted the conclusions of the IJ based on the record, the circuit court asserted, "[n]evertheless, it is not our role to evaluate the record anew. We are limited to reviewing the BIA and IJ decisions and reversing only if the evidence compels us to do so. Given Mockeviciene's recent marriage, the evidence does not compel reversal of the BIA's credibility determination." Id at *14 (internal citation omitted).
Again, it seems obvious that, among all the things a lesbian might do, marrying a man is not one of them. In fact, however, it is not at all uncommon for lesbians to be married at some point in their lives. One who takes a sympathetic view of Mockeviciene's plight could easily interpret her decision to marry a man as an indication of the level of desperation she felt at the possibility of returning to Lithuania.
Thus, an Immigration Judge has considerable leeway to rely on ad hoc definitions of "lesbian" in evaluating the credibility of a self-proclaimed lesbian petitioner. The judges of the 11th circuit would seem to have restrained the IJ using elementary principles of interpretation, but from a queer theoretical perspective, the circuit court judges stand in the same relationship toward the petitioner as did the Immigration Judge insofar as they also relied on an ad hoc definition of "lesbian," supported only by the seemingly more obvious evidence of her recent marriage to a man, in order to justify their doubts about her credibility. Apparently none of these judges feels any responsibility to gather actual information about the lives of lesbians before making highly consequential decisions that turn on the credibility of a self-described lesbian petitioner. Indeed, one suspects that some judges consider ignorance a virtue in such cases.
N.J. Couple Unable to File Joint Taxes Until 2007
In Quarto v. Adams, 2007 WL 2262736 (N.J. Super. Ct. App. Div. Aug. 9, 2007), Judge Sabatino held that a same-sex couple married in Canada on July 28, 2003, could not file a joint tax return for their 2006 income, as their marriage was not recognized in New Jersey until the effective date of the Civil Union Act (Feb. 19, 2007).
The couple was married in 2003 in Canada, filed for a domestic partnership under in New Jersey in 2004 and planned to file joint tax returns for 2006. Prior to filing, they contacted the Office of the Attorney General for an advisory opinion. The Attorney General had previously issued an opinion stating that under the Civil Union Act, adopted following the Supreme Court's Lewis v. Harris opinion, "relationships validly established under the laws of other States and foreign nations [would] be valid in New Jersey beginning on February 19, 2007, either as civil unions or domestic partnerships." Id. at *2.
The tax inquiry was referred to the Acting Director, who explained that the couple could not file a joint tax return for the 2006 work year because their legal status was not recognized in New Jersey until February 19, 2007, "which was after their 2006 income had already been earned." Id.
In fact, the couple would have saved money had they filed separate tax returns for the 2006 year, however, they wished to file jointly for personal reasons. The couple asserted that they were entitled, under Lewis, to all of the rights and benefits provided to hetero-couples and the refusal to permit them to file jointly violates equal protection. Id. at *3.
The court considered the main issue to be one of timing. The court noted that in the Lewis case, the Supreme Court directed the legislature to adopt either a civil unions or same-sex marriage act within 180 days. Id. at *7. The Civil Union Act was enacted on Dec. 21, 2006, but was not effective until "the 60th day after its enactment" or Feb. 19, 2007.
Due to administrative concerns regarding a potential retroactive application of the Civil Union Act (for tax purposes), the court found that the couple could not file jointly for 2006. "For instance, because such same-sex couples could not have filed joint New Jersey returns in prior years, their employers ordinarily would not have withheld appropriate amounts of taxes, so their W-4 forms would have been substantially incorrect." Id. at *8.
Similarly, the court noted that the Taxation Division synchronized taxpayer status with federal law. So, "New Jersey taxpayers must have been married in the year that their income was earned in order to qualify for joint filing status as married persons." Id. at *6. "Because appellants' Canadian marriage was not legally recognized by statute in New Jersey as a civil union until February 19, 2007, appellants are being treated no differently than a truly similarly-situated heterosexual married couple. Id. at *7.
Thus, according to the court, the couple was entitled to a declaratory ruling that they could begin filing their taxes jointly in 2007.
Concurring Opinion: In an interesting concurring opinion, Judge Stern noted that the different treatment for tax purposes of heterosexual couples lawfully married outside of the state versus same-sex couples in the same situation constitutes "a denial of equal protection under the New Jersey Constitution." Id. at *8. However, Judge Stern ultimately concluded that the plaintiffs were only entitled to the declaratory relief provided by the majority of the court for this equal protection violation. He found the administrative reasons offered by the majority to justify its decision "necessary and constitutionally acceptable" even though the due date for filing the 2006 tax return, April 17, 2007, occurs after the effective date of the Civil Union Act. Id. at *9.
Thoughts and musings: Perhaps the concurring opinion opens the door a bit for other jurisdictions facing similar tax conundrums? Other courts could find that a same-sex couple could file jointly if the marriage or union was recognized before the tax filing deadline instead of requiring marriage recognition during the year the income was earned. For additional points regarding the court's reasoning in this case, see Professor Stephen Clark's Blog regarding Conflicts of Laws (noting that the court oddly seemed to defer to an admin. opinion of the attorney general and ignored the common law choice-of-law cases).
August 26, 2007
Recent Title IX Gender Stereotype Bullying Case
In Seiwert v. Spencer-Owen Community School Corp., 2007 WL 2020174 (S.D. Ind. July 6, 2007), a federal district court denied a school's motion for summary judgment on a Title IX claim based on a theory similar to the one utilized by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)(a Title VII case).
Title IX of the Education Amendments of 1972 protects students from sex-based discrimination in public schools. In order to recover, a plaintiff must demonstrate that the school was "deliberately indifferent to sexual harassment, of which they [had] actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to [have deprived] the victims of access to the educational opportunities or benefits provided by the school." Seiwert, 2007 WL 2020174, at *7 (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 650 (1999)).
The Seiwert plaintiff is an eighth grade student who was harassed by other students during a two-year period. Id. at *1. The plaintiff presented evidence that he suffered from teasing and homosexual epithets as well as physical abuse and, ultimately, death threats from students at the school. The plaintiff and his parents reported the bullying to the principle of the school, who did not intervene to discipline the offending students. The bullying culminated in a fight on a school bus and the plaintiff's ultimate decision to enroll in a private school. Id. at * 4.
The court refused to dismiss the case at the summary judgment stage because, in the court's own terms, "[b]eing called outrageous names, physically assaulted, and having one's life threatened is severe and pervasive behavior." Id. at * 7. Perhaps the most interesting part of the case, however, is the court's next inquiry: "whether this harassment amounted to sexual harassment prohibited by Title IX." Id.
In a fashion analogous to the Price Waterhouse case, the court determined that the plaintiff could maintain a cause of action for sexual harassment where, "he was being harassed--not because he was homosexual, but because he was acting in a manner that did not adhere to the traditional male stereotypes." Id. In essence, the court stated that the plaintiff could assert his Title IX claim if he could show that the other students thought that he was a homosexual and did not conform to the traditional view of "masculine" behavior. In this manner, he was discriminated on the basis of his failure to fit into traditional "gender" categories, not because of his sexual orientation.
The case includes other interesting claims, such as equal protection (applying the Nabozny ruling which held that sexual orientation is a protected class, but only requires rational basis review), breach of contract (because the plaintiff was a third-party beneficiary of the school's contract with an independent bus driver), negligent supervision, and negligent infliction of emotional distress--all of which survived summary judgment as well.
In her major essay, "Queer and Now," literary theorist Eve Kosofsky Sedgwick asked why we should expect to infer reliably a person's gender identity and sexual practice from a cursory observation of secondary, or in some cases primary, sex characteristics.
She invoked "queer" as a term to capture as widely as possible the potential combinations of gender identity, sexual orientation, and sexual practice that violate existing norms. Sedgwick was an early practitioner of what came to be called "queer theory," or the intellectual effort to understand the political/cultural effects of beliefs and practices surrounding issues of sexuality and gender.
Like the acronym "LGBT," "queer" strives to encompass virtually any variation in sexuality and gender that anyone could think up, with only very libertarian boundaries marked by consent. One could contemplate substituting "queer" for "LGBT" entirely in order to stop using an awkward and confusing acronym, and to allow for future expansion to include groups we don't know about yet, but many potential constituents of a "queer" movement continue to object to the term.
The queer approach to the topic begins by rejecting the proposition that gender identity and/or sexual orientation flow in any "natural" or inevitable way from genital configuration or other bodily elements of "sex." Whatever links one may be able to demonstrate between the meanings of various terms describing sexuality and gender, and body parts as referents, queer theorists suspect that the meanings are more the result of cultural than biological determination.
Many, perhaps all, queer theorists consider discrimination against sexual minorities to be unjust and unjustifiable. Heterosexual supremacy -- the belief that heterosexual persons are somehow inherently superior to queers -- is a form of regulation for its own sake. No rational or empirical justification exists for any form of discrimination in law or policy against LGBT persons.
But heterosexual supremacy is endlessly creative in its legal manifestations, requiring constant observation and critique. That the issue is not really "homosexual" conduct or persons per se, but control over representations of "homosexuals," becomes increasingly clear from the way the law has changed. In Bowers v. Hardwick, 478 U.S. 178 (1986), the Supreme Court examined a facially neutral sodomy statute to determine if "homosexuals" had a right to engage in sodomy. The Court first endorsed the trial court's dismissal of a heterosexual couple for lack of standing -- they were in no danger, according to the Supreme Court, of suffering the harm of enforcement of the statute against them even though they expressed the desire to engage in conduct that the statute prohibited and felled chilled from doing so. Id. at 188 n.2.
In other words, no one could reasonably expect that any law enforcement officer would arrest heterosexuals for violating the statute that they arrested Michael Hardwick for violating even though the statute prohibited conduct defined exclusively in terms of body parts, with no reference whatsoever to the gender or sexual orientation of the participants. See id. at 188 n.1. It is hard to imagine a clearer admission that the issue with respect to queers is status, not conduct, and that a majority of Supreme Court Justices, at least in 1986, took so much for granted the legitimacy of status-based discrimination against "homosexuals" that they uncritically endorsed it in a decision.
From a purely legal perspective, of course, Lawrence v. Texas, 539 U.S. 558 (2003), was a huge improvement. Now, no one in the United States is subject to arrest for engaging in consensual sodomy. However, as various observers have pointed out, the Lawrence decision still involves the deployment of rhetorical control over same-sex relationships, assimilating them as much as possible to opposite-sex relationships as the justification for striking down sodomy statutes.
Why do same-sex couples only get "liberty" to engage in sexual activity when their relationships look like those of opposite-sex couples? The only answer I can see is that, at least as currently interpreted by the Supreme Court, the United States Constitution's definition of citizenship contains an implicit requirement of heterosexuality.
On the other hand, Justice Kennedy came suprisingly close to performing a queer theoretical analysis of his own in the Lawrence opinion. One of the key moves that allowed queer theorists to begin examining the cultural politics of sexuality and gender apart from biology and anatomy was the growing historical and theoretical evidence in the late 1970s and early 1980s for significant variation in definitions of proper sexuality and gender over time and across cultures. If bodies change their configuration only over evolutionary time, but historians and anthropologists can document substantial variation in historical time in what humans do with those bodies under the western rubric of "sexuality," then the variations must reflect differences of culture, not of biology. At the height of debate over Simon Levay's claim to have found significant differences in brain structures between gay and non-gay men -- the claim, that is, to have grounded the difference of sexual orientation in a difference of anatomy -- Sedgwick asserted that the focus was misplaced not least because humans have proven much more successful at deliberately changing our biology than our culture. In this respect, she echoed feminist legal theorist Catharine MacKinnon.
Kennedy, in turn, relied in Lawrence on the assertions of three historians, Jonathan Ned Katz, Estelle Freedman, and John D'Emilio, that "homosexual" did not exist as a category of persons before the late nineteenth century (the historians' brief in Lawrence offered 1868, the same year as the ratification of the 14th amendment, as the year in which a German researcher first published a paper describing something like the modern notion of "homosexuality").
This move allowed him to identify the novelty of the Texas statute at issue in Lawrence -- laws providing criminal penalties for sodomy may have existed in the Anglo-American tradition since Henry VIII broke from the Catholic Church, as the Bowers Court noted, but those laws never singled out same-sex couples as the only types who could violate them. Statutes singling out same-sex couples were an innovation of the 1970s -- the first decade of the modern lesbian/gay civil rights movement.
As the next post, on a recent rejection of an asylum claim by a Lithuanian lesbian, demonstrates, the problem is still regulation of queers solely for the sake of regulation. Now, however, instead of a blanket prohibition on same-sex conduct, judges get to enforce definitions of who is and who is not properly queer.
For more information on queer theory, see my A Genealogy of Queer Theory (2000).