Monday, May 6, 2024

Sweeny and Canon on "The Language of Love v. Beshear"

JoAnne Sweeny and Dan Canon have published The Language of Love v. Beshear: Telling a Client's Story While Creating a Civil Rights Case Narrative in volume 17 of the Journal of the Association of Legal Writing Directors. The article was shared on SSRN here. The Introduction is excerpted here: 

We tend to think of a good lawyer as being a vigorous, focused advocate, one who thinks first and foremost of the interests, needs, and desires of their clients. But what if the client’s case will affect an entire group of people; a group who may also seek to have its collective rights vindicated? This is the dilemma of the civil rights attorney—how does an effective advocate balance the specific needs of the client with the broader, long-term needs of the group the client represents? And who should have a say in what story is told on behalf of the client? In civil rights cases, it is not just the client, but activists, organizations, academics, and the media who have a stake in the outcome. How much of a say should they have in the creation of a litigation story that will most directly impact a single client? How are those stories crafted? With careless, blunt-force litigation, or with purposefulness? And does it matter who gets to tell the story?


* * *

Focusing on the Kentucky case, Love v. Beshear, this article shows how civil rights attorneys may be constrained by their dual roles—advisors to their clients and advocates for civil rights—and how they decide what story to tell to remain true to their clients’ needs while keeping engaged with the larger civil rights issues inherent in these impact litigation cases. Moreover, once the litigation has begun, the other players—organizations, media, even the judges themselves—can change the story, highlighting what they see fit. The ultimate story of who a lawyer’s clients are ultimately may not be up to the lawyer or the client.  


It concludes: 


Obergefell built a bridge to same-sex marriage, creating solid ground for the next group of civil rights lawyers
to again expand our understanding of what relationships and “equal dignity” really mean. As the country’s understanding of same-sex couples has evolved, so has the array of stories that lawyers can tell about groups that may be insular or unfamiliar to the broader public. For example, now that transgender, bisexual, nonbinary, and polyamorous people’s stories are becoming more mainstream, their stories can be used to champion a broader understanding (and legal recognition) of fundamental rights. This continuous opening of new chapters to familiar stories is the essence of civil rights advocacy.

May 6, 2024 in Courts, Gender, Judges, Legal History, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Monday, March 18, 2024

Laura Portuondo on "Gendered Liberty"

Laura Portuondo has posted Gendered Liberty on SSRN. This article is forthcoming in the Georgetown Law Review in 2024. The abstract previews: 

Individual liberty is ascendant in constitutional law, but only for some. First Amendment doctrine has increasingly protected liberty interests in conduct linked to conscientious identity, as exemplified by newly successful claims to religious exemptions from antidiscrimination law. This contrasts with shrinking Fourteenth Amendment protections for liberty interests in conduct linked to gender identity, as exemplified by the recently eliminated right to abortion and imperiled rights to contraception, marriage, and sexual intimacy. More muscular protections for conscientious liberty have diminished even statutory protections for gender-related conduct. The result is a liberty jurisprudence that increasingly protects conservative religious objectors, even as it increasingly dismisses marginalized gender groups. This Article argues that this disparity is neither a requirement of constitutional doctrine nor an extension of a neutral theory of liberty. Instead, it emerges from a gendered theory of liberty: one that protects the freedom to enforce traditional ideas about gender and denies the freedom to challenge them.

By describing gendered liberty, this Article shows that the fall of liberty under the Fourteenth Amendment and its rise under the First Amendment are symbiotic. These doctrines work together to launder controversial judgments about the value of gender nonconformity into seemingly neutral stories about liberty. In doing so, they permit the Supreme Court to subordinate the autonomy and self-determination of those who would defy gender stereotypes to that of those who would enforce gender stereotypes. More importantly, they permit the Supreme Court to deny that it is engaged in a project of subordination at all. This Article resists these claims of neutrality and the stories about liberty they rely on by showing that liberty includes those who do not conform to gendered expectations.

March 18, 2024 in Constitutional, Courts, Gender, Reproductive Rights, Same-sex marriage, Theory | Permalink | Comments (0)

Monday, August 21, 2023

Lawsuit Challenges U.S. Dept. of Veteran's Affairs' Policy Limiting Access to IVF

The National Organization for Women is suing the United States Department of Veteran's Affairs over its policy limiting access to in vitro fertilization to only opposite-sex and married couples. For news coverage of the lawsuit, check out 19th News here.  The complaint alleges that the existing policy requires as follows:

6. Veterans and service members seeking coverage of IVF treatments must, together with a spouse, be able to provide their own sperm and eggs and are prohibited from using gametes from third parties (“Member Gamete Requirements”). Defendants’ policy also limits the benefit to service members and veterans who are lawfully married (“Marriage Requirements”).


7. Additionally, no matter how much an active-duty service member struggles with fertility, only active-duty service members with a “serious or severe” illness or injury from service can access IVF. Similarly, only veterans with infertility diagnosed as “service-connected” can receive IVF from VHA (“Service-Connection Requirements”).


8. The IVF policies facially exclude service members who are a) single or in an unmarried couple; b) unable to use their own eggs or sperm because of illness or injury; c) in a same-sex couple or couple with the same reproductive organs; or d) lacking a service-connected disability or Category II or III illness causing infertility.


The complaint alleges that this policy is discriminatory and it seeks injunctive and declaratory relief: 

9. By excluding service members and veterans from IVF coverage on the basis of sex, sexual orientation, marital status, and/or the cause of their infertility, Defendants’ discriminatory policies violate Section 1557 of the Affordable Care Act, the due process and equal protection guarantees of the Fifth Amendment of the Constitution, and the Administrative Procedure Act.


* * *  


11. NOW-NYC seeks injunctive and declaratory relief on behalf of itself and its members enjoining Defendants from enforcing the discriminatory eligibility provisions of their IVF policies and declaring those provisions unlawful, so that no service member or veteran is denied the care they need to start a family solely because of who they love, their choice whether or not to marry, or the precise source of their fertility challenges. Specifically, NOW-NYC asks that this court declare unlawful and permanently enjoin Defendants from enforcing the Marriage Requirements, the Member Gamete Requirements, and the Service-Connection Requirements (collectively, the “Discriminatory Provisions”).


The full complaint is available here. 


August 21, 2023 in Courts, Equal Employment, Healthcare, Pregnancy, Reproductive Rights, Same-sex marriage, Science | Permalink | Comments (0)

Friday, July 22, 2022

Bills to Protect Rights to Contraception and Marriage Equality Pass US House

Bills to Defend Marriage Equality and Contraception Pass US House, Head to Senate

The U.S. House of Representatives this week passed two landmark pieces of legislation: the Respect for Marriage Act, which would grant federal recognition of both same-sex and interracial marriages, and the Right To Contraception Act, which would establish a right in federal law to obtain and use contraceptives.

Democratic leaders say both bills are a direct response to Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson which called on the Court to “reconsider” past rulings codifying rights to contraception access, same-sex relationships and same-sex marriage.

The bills now both head to the Senate, where Democrats need 10 Republican senators to consider and ultimately pass either bill.

July 22, 2022 in Constitutional, Family, Legislation, LGBT, Reproductive Rights, Same-sex marriage | Permalink | Comments (0)

Tuesday, October 5, 2021

Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships

Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships

By: Nausica Palazzo

Published in: Columbia Journal of Gender and Law, Forthcoming

Same-sex marriage is now recognized in several jurisdictions in the West. This result is ascribable to the untiring work of LGBTQ groups, that have utilized much of their energies to attain it. Pervasive forms of discrimination because of one’s sexual orientation are still in place, such as legislation restricting access to foster and adoption services. But there is little doubt that marriage equality constituted a watershed moment for LGBTQ politics. As Justice Roberts’ immortal words in Obergefell attest to, “[n]o union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union two people become something greater than once they were.” After the Supreme Court’s decision in Obergefell, gay and lesbian couples could also finally create the most profound of all unions, and cease being second-class citizens. Since marriage was seen by many as “the final stop for ‘full equality’ for lesbians and gay men,” a question lurked behind these events: “what now?” The question has various ramifications. “What now?” within the LGBTQ movement? Since the final objective has now been reached, the structure, financing, and strategies of the LGBTQ movement are inevitably changing. It will thus be interesting to see which battles the movement will prioritize in the next decades. A second, more crucial “what now?” bears upon the future of family law and policy. It concerns the fate of nonmarital statuses, that have been erased at the stroke of a pen after marriage equality.

. . .

Nonmarital statuses can promote a more pluralistic model of relationship recognition, and, as I will argue, offer legal protection to families that eschew the paradigm of the traditional marital family. The case of jurisdictions that have adopted nonmarital statuses as an alternative to marriage compellingly demonstrates this point. A nonmarital status is considered as an alternative to marriage when both opposite and same-sex partners can sign up. The rationale of alternative statuses is not that of offering a separate-but-equal regime for same-sex couples but a distinct regime that any couple can choose in lieu of marriage. Examples of jurisdictions adopting these laws are Illinois, Hawaii, and Colorado and, outside of the U.S., France, Belgium, The Netherlands, and Luxemburg. Interestingly, in these countries, not only are nonmarital statuses being preserved but they are also becoming increasingly popular amongst heterosexual couples. 

October 5, 2021 in Constitutional, Courts, Family, Gender, International, LGBT, Same-sex marriage | Permalink | Comments (0)

Tuesday, September 28, 2021

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

Obergefell, Masterpiece Cakeshop, Fulton, and Public-Private Partnerships: Unleashing v. Harnessing 'Armies of Compassion' 2.0?

By: Linda C. McClain

Published in: Family Court Review (Forthcoming)

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it is productive and illuminating to compare such conflicts over public-private partnerships and the best understanding of pluralism in a constitutional democracy with controversies arising twenty years ago over the faith-based initiative launched by President George W. Bush with the blueprint, Rallying the Armies of Compassion. That initiative also rested on premises about the place of religion in the public square and the role of civil society in carrying out governmental purposes. In both contexts, concerns over “discrimination” took two forms: first, that religious entities who contract with government might be subject to governmental discrimination in not receiving funding and, second, that religious entities who contract with government might themselves engage in discrimination. This article evaluates how the parties and their amici in Fulton argued over these forms of discrimination.

. . .

This article focuses on other unaddressed, significant questions in Fulton, including the precedential force and implications of the Court’s earlier decisions in Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission on a post-Kennedy and post-Ginsburg Court with a 6-3 conservative majority. As elaborated below, those cases addressed earlier iterations of the evident conflict between marriage equality—and LBGTQ equality more broadly—and First Amendment claims. I will argue that the Court’s opinion in Fulton also did not engage with analogies that were powerful, pervasive, and contested in those earlier cases: the analogy between discrimination on the basis of race and discrimination on the basis of sexual orientation and the analogy between religious opposition to interracial marriage, on the one hand, and, on the other, to same-sex marriage. Even so, those analogies featured in the Fulton briefs and in the justices’ questioning during the oral argument. Notably, a rejection of that analogy appeared in Justice Alito’s Fulton concurrence, where he argued that “lumping those [like CSS] who hold traditional beliefs about marriage together with racial bigots is insulting to those who retain such beliefs,” as well as contrary both to the majority’s “commitment” in Obergefell and to Masterpiece Cakeshop. Strikingly, Justice Alito’s rhetoric of racial bigotry echoes his earlier dissents in those very cases he now enlists. This article illustrates the different ways in which the parties and their amici enlisted or rejected the race analogy.



September 28, 2021 in Constitutional, Courts, Family, Gender, Legislation, LGBT, Race, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Monday, November 2, 2020

Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett

I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court.  Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court.  The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.

Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court


November 2, 2020 in Abortion, Constitutional, Courts, Healthcare, Judges, LGBT, Same-sex marriage, SCOTUS, Women lawyers | Permalink | Comments (0)

Friday, August 24, 2018

Rural Resentment and LGBTQ Equality

Luke Boso, Rural Resentment and LGBTQ Equality, 70 Florida L. Rev. (forthcoming) 

In 2015, the Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage.  Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills.  Obergefell may have ended the legal debate over marriage, but it did not resolve the cultural divide.  Many rural Americans feel that they are under attack.  Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, individual self-reliance, and compliance with religiously informed gender and sexual norms.  This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominately urban media representations of gay and transgender people.  In several respects, the conflict is merely perceived and not real.  It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces. 

This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which rural inhabitants see their identities disappearing, devalued, and disrespected. The left, popularly represented in rural America as urban elites, characterizes anti-LGBTQ views as bigoted, and many people in small towns feel victimized by this criticism.  Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces like federal judges and state and big-city legislators tell rural Americans how to act, think and feel.  Rural Americans resent “undeserving” minorities who have earned rights and recognition in contrast to the identities of and at the perceived expense of white, straight, working-class prestige.  They resent that liberal, largely urban outsiders are telling them that they must change who they are to accommodate people whom they perceive as unlike them.  Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity.  It is important to unearth and pay attention to rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservative politics across the United States.

August 24, 2018 in Gender, LGBT, Poverty, Same-sex marriage | Permalink | Comments (0)

Monday, February 1, 2016

Obergefell and the Return to Coverture

Allison Tait (Richmond), The Return of Coverture, First Impressions, Michigan Law Review.

Once, in the era of coverture, the notion that husbands and wives were equal partners in marriage seemed outlandish and unnatural. Under coverture, a married woman had no legal persona—she could not sue or be sued, she could not form contracts, and she could not buy, sell, or own property apart from her husband. Gender hierarchy, separate spheres, and marital “unity” defined coverture and its rules.


Today, the prevailing narrative is that marriage has become an increasingly equitable institution. This is the story that Justice Kennedy told in Obergefell v. Hodges, in which he described marriage as an evolving institution that has adapted in response to social change. Coverture, for Justice Kennedy, exemplifies this change: marriage used to be deeply shaped by coverture rules and now it is not. Coverture therefore provides an important example of how “[t]he history of marriage is one of both continuity and change.”


While celebrating the demise of coverture, however, the substantive image of marriage that Justice Kennedy set forth in the opinion subconsciously invokes marriage as coverture. The opinion uses conventional, historical tropes that construct marriage as a relationship of hierarchy, gender differentiation, and female disempowerment. While ostensibly rejecting old forms of marriage and setting forth a modern vision of marriage equality, the opinion subtly resurrects the presence of coverture.

February 1, 2016 in Constitutional, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Wednesday, December 2, 2015

Divorce Equality and Failure to Understand the Economic Partnership of Marriage

Allison Tait (Richmond), Divorce Equality, 90 Wash. Law Review (2015)



The battle for marriage equality has been spectacularly successful, producing great optimism about the transformation of marriage. The struggle to revolutionize the institution of marriage is, however, far from over. Next is the battle for divorce equality. With the initial wave of same-sex divorces starting to appear on court dockets, this Article addresses the distinctive property division problems that have begun to arise with same-sex divorce and that threaten, in the absence of rule reform, to both amplify and reinscribe problems with the conventional marital framework. Courts have failed to realize the cornerstone concept of equitable distribution—marriage as an economic partnership—in the context of different-sex marriage. Because same-sex divorce highlights this failing, this Article uses same-sex divorce as a lens through which to reexamine the untapped potential of equitable distribution statutes.

Two questions drive the analysis. One question is how to decide which assets count as marital property and how to value one spouse’s contributions to the other spouse’s career success. I propose that courts characterize enhanced earning capacity as marital property and count indirect spousal contributions toward the growth in value of business assets. Without these changes, courts fail to capture the nature of marital partnership and properly compensate contributions made by non-earning spouses. Another question, made salient by same-sex “hybrid” cases in which the spouses have been long-term cohabiting partners but short-term marital partners, is how to determine when an economic partnership begins. I propose that courts use the category of “pre-marital” property in order to count assets and income acquired outside of the marriage itself.

Addressing these questions is critical to the reformation of marriage because property rules impact how spouses bargain with one another, how diverse roles get valued in marital bargains, and how we assign and perform gender within marriage. Moreover, proper compensation for spousal contributions rewards individuals for making choices that benefit the couple rather than the individual, which is normatively positive behavior. These proposals for rule reform provide guidance for courts, both those encountering an increasing number of same-sex divorces as well those deliberating over how best to assess spousal contributions in different-sex marriages. Furthermore, the proposals in this Article provide a blueprint for advocates who seek to continue the work of marriage equality in the hopes of further unwinding the power of gender within marriage.


December 2, 2015 in Family, Same-sex marriage | Permalink | Comments (0)

Tuesday, November 24, 2015

Mayeri on Marriage In(equality) and the Historical Legacies of Feminism

Serena Mayeri (Penn), Marriage (In)equality and the Historical Legacies of Feminism, 6 Cal. Law Rev. Cir. (2015):


In this essay, I measure the majority’s opinion in Obergefell v. Hodges against two legacies of second-wave feminist legal advocacy: the largely successful campaign to make civil marriage formally gender-neutral; and the lesser-known struggle against laws and practices that penalized women who lived their lives outside of marriage.Obergefell obliquely acknowledges marriage equality’s debt to the first legacy without explicitly adopting sex equality arguments against same-sex marriage bans. The legacy of feminist campaigns for nonmarital equality, by contrast, is absent from Obergefell’s reasoning and belied by rhetoric that both glorifies marriage and implicitly disparages nonmarriage. Even so, the history of transformational change invoked in Obergefell gives us reason to hope that marriage’s privileged legal status may not be impervious to challenge.


November 24, 2015 in Constitutional, Family, Same-sex marriage | Permalink | Comments (0)

Tuesday, August 11, 2015

OH Judicial Board Rules Judges Must Perform Same-Sex Marriages

My colleague Will Huhn explains the decision "Follow the Law": Ohio Judges Must Perform Same-Sex Marriages

On Friday, August 7, the Ohio Supreme Court's Board of Professional Conduct issued an opinion entitled "Judicial Performance of Civil Marriages of Same-Sex Couples." The Board ruled:


A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not delcine to perform all marriages in order to avoid marrying same-sex couples based on his or personal, moral, or religious beliefs.

The Board's opinion is available at

The Board of Professional Conduct is a 28-member body appointed by the Supreme Court of Ohio. It consists of 17 lawyers, seven judges, and four non-lawyers. One of the Board's duties is to issue advisory opinions on matters of attorney and judicial ethics. The Board does not issue a lot of opinions. In each of 2013 and 2014 it issued only four advisory opinions; in 2012 it issued three. The Board's recent opinion regarding a judge's duty to perform same-sex marriages was its first advisory opinion of 2015.

This opinion was triggered by the action of Toledo Municipal Judge C. Allen McConnell, who announced on July 6 that in light of his religious opposition to same-sex marriage he would refuse to perform those marriages, and that he had asked to be relieved of the duty to perform any marriages. See Toledo Judge Declined to Marry Couple Over Christian Beliefs: Same-Sex Couple's Marriage Delayed, Toledo Blade (July 8, 2015).

The Ohio Board of Professional Conduct does not have the power to interpret the law. It only has the authority to construe the various rules and ethical codes that govern the conduct of judges. However, those ethical rules require judges to perform their duties under the law impartially. The Board noted that the United States Supreme Court ruled in Obergefell v. Hodges that under the Constitution same-sex couples have the same right to marry as opposite-sex couples, and that this is therefore the law of the land. If a judge were to refuse to perform same-sex marriages it would be evidence of bias and prejudice that could disqualify a judge from deciding any case involving same-sex couples or sexual orientation. The Board said that the same would be true if a judge refused to perform any marriages at all after Obergefell; this too would be evidence of bias and prejudice.


August 11, 2015 in Judges, Same-sex marriage | Permalink | Comments (0)

Tuesday, July 28, 2015

Second Parent Adoption Goes Through--After 25 Years

In case you needed a reminder about the power of law to individuals' lives, here's the story of my colleague after Obergefell.

New Franklin Woman Now Has Two Moms; Supreme Court Gay Marriage Decision Also Allows Adoptions

Nancy Reeves acknowledged there aren’t many “tangible benefits” to adoption at this point, but it’s not any less meaningful.


“We have always been a family. We have always known it, and everyone who matters to us on a personal level has always treated us as a family,” she said.


“That said, when society tells you that you’re not a real family, when ‘family values’ expressly devalues your family, it is almost indescribable to finally have our 34-year marriage, and Lynn’s 25-year relationship with Emma legally recognized. It is as if a weight I didn’t even know I was carrying has been lifted off my shoulders,” Reeves said.

July 28, 2015 in Family, Same-sex marriage | Permalink | Comments (0)

Thursday, July 16, 2015

Companies Unclear About Impact of Same-Sex Marriage under ERISA

Reuters, Gay Marriage Ruling Leaves US Firms Unclear on Spousal Benefits

The Supreme Court was definitive in its decision to legalize gay marriage nationwide, but what is far from clear is whether U.S. companies must offer corporate benefits to same-sex spouses.


Many large and mid-sized employers are self-insured, which means their benefits are governed by a 1974 act that has no language on preventing discrimination based on sexual orientation.


The Employee Retirement Income Security Act allows companies to bypass differing state laws that complicate healthcare options for employees spread out across the country.


In a Reuters survey of 60 large U.S. employers, nearly half said they were already providing benefits to same-sex spouses before the Supreme Court ruling last month, including 13 that are based in states where gay marriage was illegal.


While benefits experts see many more companies moving in that direction, the lack of legal clarity could lead to some notable holdouts that will test the spirit of the gay marriage ruling.


“This is a great decision by the Supreme Court, but people are wrong in thinking that the struggle is over and that nothing is left in the ability to discriminate, because it’s still there,” said Robert Louis, a senior partner who represents plaintiffs at Saul Ewing LLP in Philadelphia on employee benefits issues.


While ERISA requires companies to comply with federal law that protects employees against discrimination based on race, gender or religion, there is no language preventing discrimination based on sexual orientation. The act itself does not specifically address same-sex marriage.


“ERISA was enacted in the 1970s, and I don’t think it contemplated anything of that nature,” said Annette Guarisco Fildes, chief executive of the ERISA Industry Committee, which represents self-insured employers. She expects many self-insured employers will ultimately provide the same benefits to same-sex spouses as they do for heterosexual couples.

The possible exception to Obergefell and Windsor, the argument goes, is for self-insured companies. See Despite Windsor, Federal Court Rejects Challenge to a Self-Insured ERISA Health Plan's Denial of Coverage for Same-Sex Spouses

July 16, 2015 in Same-sex marriage | Permalink | Comments (0)

Tuesday, July 14, 2015

The Zablocki Decision as Key to Legal Analysis in Same-Sex Marriage Case

Quoted in the local papers on my thoughts on Obergefell.  High Court Rules in Favor of Same-Sex MarriageIt's all about Zablocki.

Tracy Thomas, associate dean of The University of Akron School of Law said she believes that Kennedy’s opinion answered Roberts’s objections. In particular, she praised Kennedy for going beyond Loving to examine other right-to-marry cases, particularly Zablocki.


Zablocki is key,” she said. “It’s an underrated case” in that the law at issue does not absolutely prohibit marriage, places conditions on the timing of the plaintiff’s marriage.


Thomas said Zablocki also considers due process and equal protection claims in tandem as Kennedy does in the decision.


Thomas, who teaches family law and directs the Constitutional Law Center at the School of Law, faulted Roberts for his characterization of Loving. Contrary to Roberts’s characterization, she said she finds that the states maintaining anti-miscegenation laws at the time of Loving regarded marriage restricted to one’s race as fundamental to the definition of the institution as marriage being between a man and a woman.


Thomas also noted that Roberts argues that marriage has for millennia been defined as one man and one woman, ignoring the persistent reality of polygamy.


Justice Kennedy’s opinion treats equal protection as “connected in a profound way” to substantive due process, she said, adding that he does not engage in traditional equal protection analysis, determining whether the plaintiffs fall into a suspect class and identifying a standard of review.


On the other hand, she said, at two places in the opinion, Kennedy refers to same-sex attraction as an immutable trait, which generally serves as a starting point for determining whether a group is a suspect class.


According to Thomas, the lack of detail regarding equal protection is consistent with how Kennedy has been approaching marriage equality cases.


“This is a marriage issue for him not a same sex issue,” she said, adding, “at least since Windsor, it’s where Kennedy is coming from.”


July 14, 2015 in Family, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Abortion Rights After the Same-Sex Marriage Case

Following up on my prior post What Does the Same-Sex Marriage Case and its "Right to Individual Autonomy" Mean for Abortion Rights, suggesting that some of Kennedy's language of autonomy and personal choice might apply to protect abortion rights, here is a view that the SSM decision is not useful to abortion rights.

Anthony Kennedy's Dignity Jurisprudence is Great for Same-Sex Marriage, But Not Abortion Rights.

 I find myself increasingly disappointed in Kennedy’s articulation of the right to same-sex marriage. Not because I don’t appreciate the way he discussed marriage as a fundamental right crucial to the dignity of gay and lesbian individuals, but because he doesn’t locate a woman’s right to reproductive autonomy in that same sphere of dignity. ***


When it comes to women reserving dignity for themselves—the dignity to make the most personal choice—whether or not to have children—Kennedy has devolved into patriarchal notions about women’s frailty and inconstancy, with language steeped in stereotypes and gender-normative claptrap.


However useful Kennedy finds it for expanding constitutional protections for certain rights, dignity is a gendered double-edged sword. It’s great for men and it has turned out to be great for same-sex couples who want to get married. But dignity as a concept is worthless when it comes to reproductive rights.


In her article, “Aborting Dignity: The Abortion Doctrine After Gonzales v. Carhart,” Victoria Baranetsky examined the limitations of dignity as a useful constitutional principle, and describes its dual meaning. She wrote, “Dignity has two radically different meanings: femininesocial obligation and masculine autonomy.” (Emphases in original.)

July 14, 2015 in Abortion, Same-sex marriage, SCOTUS | Permalink | Comments (0)

Saturday, June 27, 2015

What Level of Scrutiny in the Same-Sex Marriage Case?

This is the question that all law professors, lawyers, and journalists seem fixated on after the Supreme Court's same-sex marriage decision in Obergefell.  The emerging conclusion seems to be that Kennedy relied on dubious reasoning in analyzing the due process and equal protection claims.

To me, Kennedy answers the scrutiny question by the precedents he cites.  In short, Zablocki.  Zablocki was a case where groups were treated differently -- unmarried fathers behind on child support with children on welfare v. everyone else.  So a classification problem that equal protection would address.  But the classification basis was not just deadbeat Dads, but one group with a fundamental right and the other without.  There was an interrelationship, what Kennedy calls "synergy" between the equal protection problem and the due process problem.  In that case, the Court applied strict scrutiny. Although admittedly it went through a detailed analysis of the asserted state interests and their connection to the manner of regulation.

Kennedy concludes twice simply that the gay marriage bans were "unjustified." He addresses the asserted interests of deference to the democratic process, harm to straight marriage, and religion. He discounts these interests finding no harm to either marriage or religion, and religion still protected by the First Amendment.  He also denies that deference to legislative processes has not been done, noting that there has in fact been significant caution and deference to the democratic process of 12+ years.  He also seems to balances that interest against the harms to plaintiffs from delay.  The Court engaged in a similar conclusory analysis in Loving, summarily rejecting the state's interest in white supremacy as not important or even rational.

Kennedy did circle round the question of judicial scrutiny, but he was answering a different question that advocates wanted him to answer.  To Kennedy this was a marriage case, not a gay rights case.  He carefully went through all of the Court's marriage precedents like a Family Law exam-- Maynard, Loving, Turner, Zablocki, even Williams -- to construct his analysis of marriage and the denial of what he described as a sacred right.  He does twice mention sexual orientation as "immutable" thus providing dicta to support the next case seeking heightened scrutiny for sexual orientation discrimination.



June 27, 2015 in Constitutional, Same-sex marriage | Permalink | Comments (1)

The Coverture Analogy in the Supreme Court's Same-Sex Marriage Decision

By now you’ve heard that the Supreme Court decided Obergefell v. Hodges holding that there is a fundamental right to marry for same-sex partners. 

I'm guessing that Ginsburg influenced or wrote the sections analogizing to coverture.  The majority opinion uses coverture as an example of legal evolution in the structure of marriage.  It cites some of attorney-Ginsburg’s equal protection cases as well.

            The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000).  Obergefell, 6-7.




Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover- Cite as: 576 U. S. ____ (2015) 21 Opinion of the Court ture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 (1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.  Obergefell, 20-21.

Justice Roberts in dissent also refers to coverture, denying that legal reforms worked a transformation in the structure of marriage.

As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. 8 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting Loving, 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6

I bet if you asked a woman on the street, she would have understood marriage as coverture.


June 27, 2015 in Constitutional, Same-sex marriage | Permalink | Comments (1)

Thursday, April 30, 2015

The Promise of Gender Analysis for Resolving Same-Sex Marriage

NYT, Gender Bias Issue Could Tip Justice Roberts Into Ruling for Gay Marriage

In a telling moment at Tuesday’s Supreme Court arguments over same-sex marriage, Chief Justice John G. Roberts Jr. suggested that he may have found a way to cast a vote in favor of the gay and lesbian couples in the case.


“I’m not sure it’s necessary to get into sexual orientation to resolve this case,” he said. “I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”


That theory had gotten only slight attention in scores of lawsuits challenging bans on same-sex marriage, and it is unlikely to serve as the central rationale if a majority of the court votes to strike down such bans, an opinion likely to be written by Justice Anthony M. Kennedy.


But it could allow Chief Justice Roberts to be part of a 6-to-3 decision, maintaining some control over the court he leads and avoiding accusations from gay rights groups that he was on the wrong side of history.


"This would be a clean, formalistic way for the court to resolve the case,” Andrew Koppelman, a law professor at Northwestern University, said in an interview. “It could just apply existing sex discrimination law.”
This Loving argument appeared in some of the first cases of same-sex marriage in Hawaii and Alaska. More recent decisions, however, have rejected this gender argument because the state's intent or animus is not directed at sex - either men or women, in the way that inter-racial bans were directed at blacks and Asians. With a disconnect between the law's classification and the intent, courts have found no sex-based discrimination.
What might help get at the sex-based intent/animus argument is the rationales same-sex marriage opponents make about the need for two different gender parents, i.e. the need for a nurturing-type parent of the woman or in the case of lesbians the need for a disciplinarian of the father. This stereotypical typecasting gets closer to seeing a nexus between classification and intent sufficient to strike down same-sex marriage bans as sex discrimination.

April 30, 2015 in Same-sex marriage | Permalink | Comments (0)

Tuesday, April 28, 2015

The Amazing Volume of Amicus Briefs in Today's Same-sex Marriage Case

Ruthann Robson at Con Law Blog has given us an encyclopedic summary of all of the amicus briefs filed in the same-sex marriage being argued today in the U.S. Supreme Court. Well worth reading. 

Guide to the Amicus Briefs in Obergefell v. Hodges: The Same-Sex Marriage Cases

The United States Supreme Court is set to hear oral arguments on April 28 in the same-sex marriage cases, now styled as Obergefell v. Hodges, a consolidated appeal from the Sixth Circuit’s decision in DeBoer v. Snyder, reversing the district court decisions in  Kentucky,Michigan, Ohio, and Tennessee that had held the same-sex marriage bans unconstitutional, andcreating a circuit split.    

 Recall that the Court certified two questions:

    1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

    2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

The case has attracted what seems to be a record number of amicus briefs.  As we discussed last year, the then-top amicus brief attractors were the same-sex marriage cases of Windsor and Perry, which garnered 96 and 80 amicus briefs respectively, and the 2013 affirmative action case of Fisher v. University of Texas at Austin, which attracted 92.  


The count for Obergefell v. Hodges stands at  147.

April 28, 2015 in Same-sex marriage | Permalink | Comments (0)