Gender and the Law Blog

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.

Meet the People in Today's Same-Sex Marriage Case at SCOTUS

NPR, Meet the "Accidental Activists" of the Supreme Court's Same-Sex Marriage Case

The U.S. Supreme Court hears legal arguments next week in the legal battle over same-sex marriage. It's an extraordinarily high-stakes clash, but the men and women at the center of it see themselves as incredibly ordinary. The 12 couples and two widowers include doctors, lawyers, an Army sergeant, nurses and teachers.

 

Most have children and lead the typically harried lives of working parents. They say they didn't set out to be pioneers. They consider themselves "accidental activists," meaning they filed lawsuits not to further a cause but because of the way the bans affected their lives.

Glendale, Arizona--No Protection for LGBT Rights

 From the HRC Blog: 

It is startling to think that in Glendale, Arizona a person can be evicted from their home or fired from their job simply because of whom they love or their gender identity. In Glendale, LGBT citizens still lack basic legal protections at work, at home and in public spaces.

And: 

The Glendale City Council started the process of protecting LGBT residents with a non-discrimination ordinance, however the process has stalled.

The momentum continues to build among Glendale residents- LGBT and allies alike. Supporters are anxious to ensure that discrimination based on sexual orientation or gender identity not be tolerated. 

Last week, HRC hosted a phone bank to encourage Glendale residents to call the Mayor and City Council to get the ordinance back on track. Conversations with residents reinforced the need to move this ordinance forward and make sure that all Glendale citizens are equally treated under the law.

 

SCOTUS Rewrites Question Presented in Same-sex Marriage Case

Adam Liptak, NYT, Taking UP Gay Marriage, but on its Own Terms

The first page of a petition seeking Supreme Court review is the most important. It sets out the “question presented,” the one the court will answer if it takes the case.

 

The justices do not ordinarily tinker with the wording of those questions. But on Friday something unusual happened: In agreeing to hear four same-sex marriagecases, the court framed for itself the issues it would address.

 

Lawyers and scholars scrutinized the court’s order with the anxious intensity of hypochondriacs attending their symptoms. Some saw an attempt by Chief Justice John G. Roberts Jr. to elicit a ruling that would stop short of establishing a nationwide constitutional right to same-sex marriage.

 

The court’s order was not issued until 3:30 in the afternoon, long after the justices’ private morning conference concluded. That suggested the drafting had taken some time and had involved some negotiation.

 

Richard L. Hasen, a law professor at the University of California, Irvine, did not like what he saw. Has the Supreme Court “stacked the deck against gay marriage in how it has framed the question?” he asked in a blog post.

 

But there are perfectly innocuous explanations for the court’s new questions. It agreed to hear four different petitions, from Kentucky, Michigan, Ohio and Tennessee, and they featured different questions, which needed to be harmonized since the cases were consolidated.

 

“The court’s order represents good housekeeping,” said Laurence H. Tribe, a law professor at Harvard.

 

But Professor Tribe also voiced a small note of caution.

 

“The rephrased questions,” he said, “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.”

That's what I think.  A middle path, following Windsor.  

Alvare on Place of Children in Same-Sex Marriage

Helen Alvare at George Mason Law has uploaded "Same-Sex Marriage and the Reconceiving of 'Children.'" (It's a conservative perspective but I, for one, am in favor of reading contrary views.) The abstract:

 Historically, the U.S. Supreme Court has consistently highlighted the importance of procreation in its consideration of marriage in constitutional cases. Recently, however, litigants seeking same-sex marriage and judicial decisions sympathetic to their arguments have ignored the language and holdings of this long-standing body of law. Instead, they have focused nearly entirely upon adults’ interests in state marriage recognition. To the extent children are mentioned, it is for the purpose of speculating that children living within same-sex marriage households might indirectly benefit from recognition of adults’ rights to same-sex marriage.

This Article discusses the importance of states’ interests in procreation and child rearing and the Supreme Court’s constant recognition of those interests. Ultimately, this Article argues that judicial decisions recognizing same-sex marriage have marginalized, or “reconceived,” the role of children in marriage, in several important ways, all to the marked disadvantage of children.

Mississippi Court Rules for Marriage Equality

ICYMI during the Thanksgiving rush, a Mississippi court ruled in favor of marriage equality.  The opinion is Campaign for Southern Equality v. Bryant, (S.D. Miss. Nov.25, 2014).

The majority of Mississippians disapprove of same-sex marriage. They have made that abundantly clear through every channel in which popular opinion can be voiced. This court does not believe that the 86% of Mississippians who voted against same-sex marriage in 2004 did so with malice, bigotry, or hatred in their hearts. Many were simply trying to preserve their view of what a marriage should be, whether by religion or tradition. They deserve an explanation as to why same-sex marriage is now sweeping the country.

 

It has become clear to the court that people marry for a number of reasons: marriage is a profound source of emotional support; marriage is a private and public expression of commitment; some marry in exercise of their religious beliefs; some do so because it opens the door to economic and government benefits; there are those who marry to present a certain status or image; and others do it for the noble purpose of legitimizing their children. In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:

 

    Can gay and lesbian citizens love?

 

    Can gay and lesbian citizens have long-lasting and committed relationships?

 

    Can gay and lesbian citizens love and care for children?

 

    Can gay and lesbian citizens provide what is best for their children?

    Can gay and lesbian citizens help make their children good and productive citizens?

 

    Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity?

    

    Without the right to marry, are gay and lesbian citizens subjected to state-sanctionedprejudice?

 

Answering “Yes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage. The court concludes that Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law.

 

Same-Sex Marriage Decision in Puerto Rico Forgets Gendered Subjugation of "Traditional Marriage"

Linda McClain at Balkinization  on the Puerto Rico same-sex marriage decision and the gendered origins of "traditional marriage."

Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent  concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.


To illustrate the consistency of Puerto Rico’s marriage policy, the federal district court observes that, in 1899, when “royal decree brought Puerto Rico within the ambit of the Spanish Civil Code,” that Code governed marriage and the “rights and obligations of husband and wife.”  The court traces Puerto Rico path to becoming a “possession” of the United States, observing that the underlying definition of marriage did not change. Thus, marriage, in the 1902 Civil Code, is “ a civil institution that emanates from a civil contract by virtue of which a man and a woman are mutually obligated to be husband and wife, and to fulfill for one another all the duties that the law imposes.”

But what were those duties imposed by law?  The court attaches to its opinion a translation of an excerpt from the 1899 Civil Code, which include certain “rights and responsibilities” of husband and wife: “The husband must protect his wife and the latter obey the husband.” (Art. 57); “The wife is obliged to follow her husband wherever he may establish his residence” (Art. 58); “The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through a solicitor” (Art. 60).  The husband is also “the administrator of the property of the conjugal partnership,” unless otherwise stipulated (Art. 59).

These provisions of the Civil Code, rooted in Spanish influence,  have parallels in the English common law system of coverture, a system that, as the Supreme Court explained in Planned Parenthood v. Casey, is “no longer consistent with our understandings of the family, the individual, or the Constitution.”  Challenging the idea of a consistent marriage policy is the fact that these hierarchical provisions no longer appear in the current version of the Civil Code. Instead,  the “duties” of spouses “imposed by law” now take a mutual, gender neutral form:  “The spouses shall protect themselves and satisfy their needs in proportion to their conditions and fortune” (Section 282); “The spouses shall decide by mutual agreement where to establish their domicile and residence for the attainment of the best interest of the family” (Section 283); “Both spouses shall be administrators of the community property, except when otherwise stipulated . . .” (Section 284); and “[E]ither of the spouses may legally represent the conjugal community” (Section 286). 

These changes are similar to the abrogation of the common law model of marriage. They show how the law of marriage evolves over time. Thus, the “traditional marriage” to which Judge Juan M. Pérez-Giménez appeals has already departed in many ways from “tradition.

Justice Ginsburg Looking for Circuit Split to Consider Same-Sex Marriage

Salon, Ruth Bader Ginsburg:6th Circuit Same-Sex Marriage Ruling Could Predict SCOTUS Next Move

The fate of same-sex marriage bans could come down to the 6th Circuit, according to Ruth Bader Ginsburg. The Supreme Court justice told an audience at the University of Minnesota on Tuesday that whether the high court will take up the issue of marriage equality in the coming term will likely depend on a pending ruling from the appellate court, the Associated Press reports:

 

    Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.

 

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

 

And from the Wall St. J., Justice Ginsburg: Future of Gay Marriage Bans Could be Decided in Ohio

Presidential elections have been decided in Ohio. The fate of same-sex marriage bans — at least in the near future — could also be settled there too, Justice Ruth Bader Ginsburg has suggested.

 

Gender Diversity as a Justification to Ban Same-Sex Marriage

Ian Farrell and Nancy Leong (Denver) have posted, Gender Diversity and Same-Sex Marriage.

Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow opposite-sex marriage while banning same-sex marriage — even if the ban triggers heightened scrutiny under equal protection or due process — because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah's same-sex marriage ban in the Tenth Circuit and Kentucky's same-sex marriage ban in the Sixth Circuit.

Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.

Interactive Map of Same-Sex Marriage

A detailed and useful map available here.  

Same-Sex Couples to Get More Federal Benefits, but not All

WSJ: Same-Sex Couples to Get More Benefits

The Obama administration announced Friday the extension of more benefits and obligations to same-sex married couples, including plans to allow workers nationwide to take leave from their jobs to care for same-sex spouses.

The White House also is expected to press Congress to pass legislation needed to change some provisions, such as Social Security benefits, to apply to same-sex married couples.

...

During the past year, Justice Department attorneys have consulted with the general counsels of federal agencies to see whether legal barriers remain to extending benefits to same-sex spouses.

In a memo to the president, Mr. Holder will report that they found such impediments in the statutes governing only two agencies: the Social Security Administration and the Department of Veterans Affairs, an administration official said Thursday.

 

While same-sex spouses can receive full benefits from those agencies if they live in states that recognize their marriages, those who reside in "nonrecognition" states are eligible only for a few.

 

"We knew that the two that would be the most vexing are the VA and the Social Security Administration, because there is language embedded in the statutes that founded them specific references to marriage being defined by where the person dwells, rather than being silent," the official said.

Italian Court on Transgender Rights

From the Jurist: 

[JURIST] Italy's Constitutional court [official website, in Italian] ruled [judgment, in Italian] Wednesday that an Italian law that annuls a marriage once a partner undergoes a sex change operation is against the national interest because the couple may desire to stay together. Wednesday's ruling overturns a judgment from a lower court in Bologna in the case of 43-year-oldAlessandra Bernaroli [Ansa News report], who underwent surgery in 2009 to become a female, four years after getting married as a man. Bernaroli's marriage was automatically dissolved by national law after the transgender operation. The case will now reach Italy's highest court, La Consulta, where a favorable ruling for Bernaroli could make her and her female partner the first same-sex couple in Italy.

Italian Court on Transgender Rights

From the Jurist: 

[JURIST] Italy's Constitutional court [official website, in Italian] ruled [judgment, in Italian] Wednesday that an Italian law that annuls a marriage once a partner undergoes a sex change operation is against the national interest because the couple may desire to stay together. Wednesday's ruling overturns a judgment from a lower court in Bologna in the case of 43-year-oldAlessandra Bernaroli [Ansa News report], who underwent surgery in 2009 to become a female, four years after getting married as a man. Bernaroli's marriage was automatically dissolved by national law after the transgender operation. The case will now reach Italy's highest court, La Consulta, where a favorable ruling for Bernaroli could make her and her female partner the first same-sex couple in Italy.

Today's Status on Same-Sex Marriage

A good summary of the national legal status of same-sex marriage as of yesterday.   See Gay Marriage Map: Where is Same-Sex Marriage Legal?  Except, that it even it is outdated, as Montana now has a court challenge filed. 

Same-Sex Marriage Cases This Week

In case you blinked, here's the latest on the status of same-sex marriage cases:

Oregon denied legal standing to a political group seeking to defend the law.  The AG has refused to defend it.

Arkansas: The Arkansas Supreme Court denied a stay of a trial court order invalidating the state's same-sex marriage ban.  

Idaho trial court denied a stay of the order invalidating the same-sex marriage ban.  An appeal by the government is likely.

Virginia: The federal court of appeals heard argument in the case declaring the state ban on gay marriage unconstitutional, which was stayed pending appeal.

 

Government Files Brief in Sixth Circuit Appeal of KY Same-Sex Marriage Case

We're joined this month by guest blogger, Professor Jamie Abrams from the University of Louisville School of Law. Her scholarly interests include integrating masculinities theory in feminist law reforms such as military integration and domestic violence; examining the tort complexities governing standards of care in childbirth; gendered conceptualizations of citizenship; and legal education pedagogy.  

Last week the Government filed its appeal in Bourke v. Beshear, Kentucky’s Western District Court decision recognizing valid out-of-state marriages.  The arguments raised in this Sixth Circuit appeal are worth a read for many reasons, however, you might consider buckling up in your DeLorean time machine because backward time travel will facilitate maximum reading ease of these arguments.  The full text of the brief is here. 

The government relies heavily on the binding precedential value of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed by 409 U.S. 810 (1972) for the proposition that same-sex marriage prohibitions can withstand equal protection scrutiny.  The Government then argues that it has a “legitimate economic interest” in regulating the “traditional man-woman marriage model” because “same-sex couples are materially different from traditional man-woman couples” because “only man-woman couples can naturally procreate.”  Thus, the Government argues, “same-sex couples are not similarly situated to man-woman couples” and the marriage distinction withstands equal protection analysis.  The Government argues that “natural procreation” is “of vital importance to the state” and a “stable birth rate” will “support[] long-term economic stability.”  Seems like a surprising approach for the Government to dig in so dominantly on arguments that have been wholly dismissed in other courts.  I was relieved that my Mother’s Day card yesterday did not affectionately highlight my two contributions to the “long-term economic stability” of the Commonwealth.   

In Utah Gay Marriage Case, State Argues Existence and Importance of Gender Differentiated Parenting

In Thursday's oral argument before the 10^th Circuit US Court of Appeals in case of Utah's ban on gay marriage, the state emphasized the importance of gender in marriage and the risk of harm from "genderless" marriages.  Essentially that moms and dads are simply different and provide complimentary roles.

 From the State's brief:

“And Utah voters, … reaffirmed among other things their firm belief—also supported by sound social science—that moms and dads are different, not interchangeable, and that the diversity of having both a mom and a dad is the ideal parenting environment.” *** 

Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and even economically when reared in an intact home by both biological parents. Such arrangements benefit children by (a) harnessing the strong biological connections that parents and children naturally feel for each other, and (b) providing what experts have called “gender complementarity”—i.e., diversity—in parenting. *** 

This biological advantage is further enhanced by the unique, gender-based contributions that fathers and mothers make to their children’s wellbeing. While the value of gender diversity in parenting is common sense to many, the notion likewise finds confirmation in a growing body of social science research. As a group of 70 scholars recently concluded, the “empirical literature on child well-being suggests that the two sexes bring different talents to the parenting enterprise, and that children benefit from growing up with both biological parents.” In other words, the benefits flow not just from having two parents of any gender, but from what scholars call “gender-differentiated” or mother-father parenting: “The burden of social science evidence supports the idea that gender-differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.” Indeed, research shows that men and women parent children differently, and in so doing contribute distinctly to healthy child development.

Massaro on Religious Exemptions

A timely article by Toni Massaro has been uploaded.  Its titled "Nuts and Seeds:  Disclosure of Religious Exemptions" and its abstract reads:  

Closely watched cases pending before the United States Supreme Court address whether for-profit businesses may claim a statutory or constitutional right to an exemption from general laws that burden religious expression. These cases are part of a wider trend of expanded constitutional rights for for-profit actors, and of increased judicial and legislative sympathy for exemption requests by religious actors.

This Article offers a first look at steps government might take if the current trend continues, and if more exemption requests for commercial actors are allowed. It steps beyond the vigorous debate over whether to grant an exemption, and explores alternatives that may mitigate third-party burdens imposed by such exemptions, without unduly burdening the exempted commercial religious actors. It examines in particular an “exemption-subject-to-notice” option, under which exempted commercial actors would be required to provide notice to adversely affected third parties, or be subject to government-provided notice of their non-compliance. The Article concludes that a notice condition on exit from generally applicable laws is not a problem-free option. Nevertheless, it is worth exploring as a “third way” for government to manage the inevitable liberty collisions of a pluralistic democracy, and is a superb vehicle for illuminating the relative costs of emerging regulatory patchworks.

Feinberg on Non-Marital Relationship Statuses

Jessica Feinberg, Mercer Law, has uploaded "The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era:  A Proposal."  The abstract reads:  

Based on recent achievements by the same-sex marriage movement and current societal attitudes, it seems clear that it is only a matter of time before same-sex marriage is recognized by the majority of jurisdictions within the United States. When this occurs, society will be left with an important decision regarding whether the widespread legalization of same-sex marriage marks the beginning or the end of the discussion in this country regarding adult relationship recognition. Hopefully, it will mark the beginning of the discussion. Individuals face incredibly limited options when it comes to legal recognition of their important relationships. The federal government and the majority of states recognize only one relationship status, marriage, leaving couples with the narrow choice of marriage or non-recognition. It is time for the United States to follow the lead of other countries in creating an effective and comprehensive system of adult relationship recognition that does not depend solely upon marriage. There is ample evidence that marriage is in trouble in the United States. Increasing numbers of individuals are eschewing marriage for non-marital cohabitation, those who marry do so later in life, and the divorce rate continues to hover around fifty percent. As marriage rates decrease, increasing numbers of individuals are left in the unfortunate position of having inadequate legal protections for their relationships. Many people likely would benefit from the introduction of a third option; namely, a state-based non-marital relationship status that offered a true alternative to marriage and was recognized by the federal government. This article offers an innovative proposal for a new system of non-marital relationship recognition in the United States.

Subversive Graham Crackers and Gay Dads Commercial

Honey Maid Ad: Gay Dads Are OK - So Long as they are Rich and White

[T]he advertisement highlights the contemporary boundaries and privileging of certain gay identities. Indeed, the men describe themselves as traditional. “Marriage, and a family, and having kids was always important,” they tell us.

 

These men are white. This family is affluent. And they are men; their gender presentation is normative in no way conflicting with traditional conceptions of masculinity. Without denying that the ad reveals the tremendous progress made in the achievement of gay rights and recognition, it simultaneously demonstrates the limits.