Sunday, May 10, 2009

New York City Bar hosts panel discussion on efforts to legalize same-sex marriage in New York

05/10/09 Gender and Sexuality Law Blog:

Columbia University law professor Katherine M. Franke posts a link to the New York Times account of the 5/07/09 panel discussion in which she and law professor Arthur Leonard participated. Other panelists included Roberta A. Kaplan, a lawyer for the plaintiffs in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Susan L. Sommer, a lawyer at Lambda Legal, who also worked on the Hernandez case; and David A. Weinstein, a legal adviser to New York Governor David Patterson.

Franke questions emphasis on the dignity associated with the right to marry, especially in the context of state Supreme Courts that have identified not just autonomy, but dignity as reasons why the right is a fundamental right. She worries that the "dignity argument" implies that "that there is some kind of lack of dignity, respectability, for those who live outside the institution of marriage."

05/11/09 WordInEdgewise:

Is Franke right that the "dignity argument" implies a lack of respect for families based on non-marrital relationships?

Widener Law Professor John Culhane does not directly address this question. On his account, Franke overlooks the fact that the Massachusetts and California Supreme Courts "expressly connected fundamental rights and equality." He underscores the connection that the California Supreme Court made between the fundamental character of the right to marry, dignity, and equality. The Court found that domestic partnerships could not be "separate-but-equal" to marriage, because domestic partners did not enjoy dignity equal to that of spouses. Perhaps a future court will consider whether equal claims of dignity entitle certain other non-married families to the same legal status now reserved to "marriage" - and even whether the civil institution identified as "marriage" should instead be identified by some other name. (In fact, during the Prop. 8 oral arguments, Justice Ming Chin had asked Kenneth Starr whether the renaming proposal would provide equal protection to same sex couples, and whether the Court could order it.) But, Culhane says, "it’s worth remembering that courts can and do only address the controversy before them; in so doing, they’re right to insist that likes be treated as likes, and to fuse the related pillars of equality and basic rights."

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