Law professor John Culhane brings the Equality Forum to everyone who can't attend

This year's Equality Forum has again engaged law professor John Culhane to write about its panels. The schedule required John to highlight certain panels, and he expects to conclude his series with an interview of David Boies, the "yin" to the "yang" Theodore Olson, who together represent the Perry plaintiffs.

Read his latest opinion article, "The Paradox of Legal Gay Unions," for 365Gay.com. John's wide range of law review publication includes the rights of same-sex couples and other legal issues of sexual orientation. But the law review format has its limitations. It often (typically?) disengages authors from their lived realities of legal inequality, as if they were disembodied agents of legal reasoning. If this artificial disassociation does not neuter their insights, it requires a detachment that disconnects the reader from their own personal seismometers. "The Paradox of Legal Gay Unions" returns John's insights to the fullest measure of their lived meaning. He describes the paradox from the perspective of his partner's incredibly powerful observation about their wedding rings, and of a friend's misfortune in separating from a partner.

Last year, John favored this site with a four-part series on "Marriage Equality and Religious Liberty." His blog, WordinEdgewise, consummates a marriage of zany humor, delightful style, evocative opinion, perceptive insight, and graceful humility. He is a treasure to read.

Replies to Heather McDonald's argument against marriage equality: Blaming gay parents - and heterosexual men programmed for sex without responsibility

This site's readers know that I seldom express my opinion. I depart from standard blogging practice because I prefer, as a law librarian, to provide legal news and commentary on the right to marry, and related guides to the law and legal literature.

I will hazard an opinion here. I say "hazard," because I will expand on commentary that already strikes me as completely decisive. John Culhane's has replied to Heather McDonald's argument against marriage equality in "Reengineering the Family" (02/01/10 National Review). I take the risk of adding to his reply.

McDonald claims that "gay marriage moves the separation of parental status and biology to the center of the marriage institution." She anticipates two types of harmful consequences to children.

First, by making parenthood a matter of "intent," same-sex marriage would somehow encourage heterosexual men to abandon their responsibilities as biological fathers. If gay and lesbian parents marry, their reliance on assisted reproduction would express the importance of parental intent over biological procreation. But then more men could invoke the pretext of "intent" to claim that they did not intend to become fathers when they had sex without contraception. And somehow that pretext would allow them to justify their behavior and gain public acceptance for it.

Second, men and women bring unique, and complementary, parenting benefits to children. But if same-sex couples can marry, "the sole argument potentially remaining for persuading fathers that they should raise their children — that children need two parents in the home — is easily disposed of: My baby momma is living with her mother."

Of course, infertile couples and same-sex couples already rely on assisted reproduction, and many children have been raised in single-parent households and households with step parents. In fact, experts in the Perry trial have disputed the extent to which the history of American marriage is a history of biological parenthood. (footnote 1) They have also disputed the alleged harms to child welfare from parenting by same-sex couples. (footnote 2) Nevertheless, McDonald believes that growing exceptions to the traditional family can not be made the rule, without imperiling the well-being of children. Gay marriage, she says, is the straw that could break the camel's back.

Culhane thinks that McDonald has instead made a "straw man" argument. He titles his reply, "It's Always the Gays." On the one hand, McDonald acknowledges that gay and lesbian parents will continuing raising children, and that same-sex marriage would afford these parents opportunity to preserve "one strand of traditional child-rearing arrangements." On the hand, same-sex marriage would bear exclusive responsibility for the destruction of these arrangements, at unacceptable cost to children. Culhane concludes that McDonald has set up a "straw man" of gay and lesbian parents pitted against the best interests of society. She blames them for "any imaginable" harms to children, whether or not they are the cause. Culhane also faults her for ignoring the costs to children of degrading their same-sex parents by banning same-sex marriage.

I find that McDonald attacks another "straw man" - a stereotyped, heterosexual male. On her account, heterosexual men are programmed to have procreative sex but to shirk their responsibilities as biological fathers. Society, she implies, should do nothing to encourage this tendency. But whether or not gay and lesbians marry, would otherwise irresponsible, heterosexual men have more or less incentive to become responsible, biological fathers? She says that "[t]oo many men now act like sperm donors: they conceive ... children [and] then largely disappear, becoming at best intermittent presences in their children’s lives. This phenomenon is increasingly common among the less educated, and dominates in the black community."

Reducing "many men" to de facto "sperm donors" risks reducing heterosexual men generally to an unflattering stereotype. In fact, if fathers - and mothers! - abandon or neglect their responsibility as biological parents, they do so for reasons other than the prospect of same-sex marriage. The divorce rate in America reached just over 40% before the first same-sex couples could marry, and, in some states, serial divorce represents an emerging trend. Moreover, supporting parental responsibility depends on making child welfare an urgent priority, one that demands commensurate public resources. Especially in impoverished communities, families of all kinds would benefit from public services and protections that increasingly are lacking. These include improved education, nutrition, job training, public transportation and access to good medical care; more affordable housing and child care; expanded opportunity for a dignified livelihood; greater protections in the workplace and against crime and discrimination; and cleaner air and water.

FOOTNOTES

(1)

See testimony by historian Nancy Cott on day 2 of the trial, at transcript page 226:

"But, rather, that the purpose of the state, as I began to say before, and the incentives given to marriage were much broader than this, in the aim to create stable and enduring unions between couples, and so that they would support one another, whether or not they had children, and that they would support the broad range of their dependents. Biological children, but others ... In the longer history of the United States, what we now call blended families and often think of as a contemporary innovation, such families were extremely common in the past because of early death and remarriage. "

(2)

See testimony during day 5 of the trial.

9th Circuit Court Chief Judge Alex Kozinski: policy on trial broadcasting "rests exclusively with the Judicial Conference of each circuit"

01/12/10 SCOTUS blog:

Yesterday, the U.S. Supreme Court blocked a YouTube webcast of the Perry trial. The U.S. Judicial Conference - which sets policy for the federal courts - sent Chief Judge Alex Kozinki a letter asking him to consider the Conference's policy against civil or criminal court recordings, notwithstanding the 9th Circuit's new pilot program for camera recordings of civil, non-jury trials, and Kozinski's order authorizing a Perry trial broadcast. Lyle Deniston of SCOTUS blog reports on Kozinski's response in this letter. He also discusses today's 01/12/10 supplemental brief by Prop. 8 proponents in Hollingsworth, et al., v. Perry, No. 09A648 (U.S.).

01/11/10 Cal Legal Pad, by legal news reporter Dan Levine:

[W]e picked up a little letter war between Ninth Circuit Chief Judge Alex Kozinski and the U.S. Judicial Conference in Washington, D.C. The folks back East asked Kozinski to “consider” conference policy against cameras in the court. Kozinski, who has a turbulent history with Conference oversight (Internet firewalls, anyone?), fired back a missive defending the Ninth Circuit’s power to broadcast. Kozinski also said the circuit has been moving cautiously.

For more on the "YouTube" controversy, see this post by law professor John Culhane, this LA Times article, and this CNN.com article. (Professor Culhane expects to discuss the expected Supreme Court decision tomorrow, and will discuss the Perry trial tonight on 1150AM (WDEL).) Above the Law links to more legal coverage of the issue here. At the National Review, Ed Whelan continues his blog series, "Judge Walker’s Gambit to Bamboozle the Supreme Court." [01/13/10 update: AP reporter Paul Elias reports on the subject here: "Lawyers said there appears to be an informal agreement among the justices to keep the court's own ban in place until there is unanimous consent to let cameras inside."]

Law professor John Culhane on In the Matter of Karen Golinski and the prospect for Supreme Court review of bans on same-sex marriage

12/27/09 WordInEdgewise, by law professor John Culhane:

In a battle that only lawyers and marriage debate partisans (like me) could love, federal appellate court judge Alex Kozinski has been sparring with the Obama DOJ over whether the government must (or even can) provide federal benefits to the same-sex partner of a staff attorney for the 9th Circuit (Kozinski’s court). You can find good accounts of the issue here and especially here; I’ll refer you to those and not rehash their good work.

Whatever happens with this case, though, it’s become increasingly clear to me that some case involving same-sex marriages — either directly or indirectly — is going to reach the Supreme Court sooner rather than later ... [Unless Congress repeals the federal DOMA,] DOMA’s constitutionality may be the vehicle for examining the ban on same-sex marriages more comprehensively. And when that happens, it will likely be up to Justice Kennedy, as it so often is. The other eight are likely set, four to a side, making Kennedy an audience of one for the advocates. Is this really what anyone wants?

Legal commentary on election returns in Maine and Washington

11/04/09 WordinEdgewise by law professor John Culhane:

[T]wo things seem worth saying. First, we should acknowledge that there is indeed something wrong with putting minority rights up to a vote by the majority ... Second, we’re pushing closer and closer to that 50% threshold. It seems right now that we’re in the 47-48% range in more socially progressive states, so we’ve not far to go. And when the (in this sense) toxic word “marriage” is taken out of the equation, we’ve now cleared that majority hurdle: It looks as though the Washington full domestic partnership ordinance will stand.

11/06/09 Huffington Post, by law professor Carlos Ball:

As difficult as losses such as the one in Maine is for supporters of the legal recognition of same-sex relationships, it is important to keep in mind just how far we have come on this issue in a very short period of time ... It is also important to keep in mind that opponents of equality prevailed in Maine -- as they did in California a year ago -- by a slim margin ... Opponents of gay marriage are increasingly having a difficult time articulating why it is, exactly, that the legal recognition of such marriages would harm society.

Read more at: http://www.huffingtonpost.com/carlos-a-ball/keeping-the-same-sex-marr_b_345142.html&cp

Read more at: http://www.huffingtonpost.com/carlos-a-ball/keeping-the-same-sex-marr_b_345142.html&cp

Read more at: http://www.huffingtonpost.com/carlos-a-ball/keeping-the-same-sex-marr_b_345142.html&cp ...

11/05/09 Huffington Post, by law professor Geoffrey Stone:

It was only when gays and lesbians courageously stepped out of the closet that real change began. That change came about not only because they could become active politically, but also because people came to realize, sometimes to their shock and dismay, that their children, their neighbors, their friends, their co-workers were gays and lesbians ... What is most missing now in the movement to achieve equality in America is courage among our political leaders. Even the leading contenders for the 2008 Democratic presidential nomination were unwilling to say that they supported same-sex marriage. This is shameful. And it is especially shameful that our President remains silent.

Read more at: http://www.huffingtonpost.com/geoffrey-r-stone/the-lessons-of-maine_b_345862.html&cp

Read more at: http://www.huffingtonpost.com/geoffrey-r-stone/the-lessons-of-maine_b_345862.html&c

11/07/09 Leonard Link, by law professor Arthur Leonard:

There are a few things to remember about this vote. Unfortunate as it was, it was NOT the enactment of a constitutional amendment or a statute banning same-sex marriage. It has no substantive effect going forward. All it does is to repeal the marriage law passed earlier this year. It does not preclude the legislature from revisiting the issue, either with an interim civil union measure or another attempt at marriage.

11/05/09 Kennebec Journal:

A panel of legal experts, including a former Maine attorney general, predicts that it will be only a matter of time before Maine legalizes same-sex marriage. Though Tuesday's vote repealed the same-sex marriage law that was approved by the Legislature and signed by the governor in May, the Columbia Law School panelists said Maine is on the path toward adoption.

11/04/09 Out For Justice:

Kate Kendell, executive director of the National Center for Lebsian Rights, also expressed anger over elections in which a majority can strip a minority of fundamental rights:

It is a travesty of every principle that made this nation great that the rights of a minority group can be put up to a popular vote.

11/04/09 press release by Lambda Legal:

Lambda Legal Marriage Project Director Jennifer C. Pizer said,

Forcing any minority to endure a barrage of lies and insults, ending with a vote that denies them full citizenship, is cruel – it's not the government our founders envisioned. Ballot measures driven by prejudice are poison; honesty and equality are the essential cure.

11/04/09 NY Times:

The NY Times reports that supporters of same-sex marriage have already begun to question the "state-by-state strategy" of enacting marriage-equality laws in states that do not have any bans on same-sex marriage:

Richard Socarides, who advised President Bill Clinton on gay issues, said such federal litigation [Perry v. Schwarzenneger]— along with a repeal of the Defense of Marriage Act — was the best hope for advancing same-sex marriage at this point.

Activists may still try to qualify a referendum on Oregon's constitutional ban of same-sex marriage. Nevertheless, Jennifer C. Pizer, marriage project director for Lambda Legal, told the Times that such ballot measures

tend to marginalize the group that is being targeted and inflame people’s passions in a way that is at best divisive and at worst terribly cruel.

She acknowledged, however, that targeting legislative reform, in states like Washington, may still work:

The effort there [in Washington, where voters appear to have approved Referendum 71] has been a steady building of support in the legislature. It’s unclear when they will ascertain there’s enough public support to change the marriage law, but it’s been a gradual process that will continue.

The National Organization for Marriage now plans to target states without constitutional bans as it pursues its own "state-by-state" elections strategy to increase the number of states that have them.

11/04/09 press release by the American Equal Rights Foundation (AERF):

AERF finances plaintiffs in Perry v. Schwarzenneger. Its executive director, Chad Griffin, said:

Our founding fathers did not intend for people's Constitutional rights to be determined by political campaigns. The results in Maine underscore exactly why we are challenging California's same sex marriage ban in federal court. When the Supreme Court ruled in Loving v. Virginia, more than 70 percent of Americans disapproved of interracial marriage. The U.S. Constitution guarantees equal rights to every American, and when those rights are violated, it is the role of our courts to protect us, regardless of what the polls say.

Thanks to California attorney Rick Xiao for helping me prepare this post.

Commentary on yesterday's ruling by Texas judge Tena Callahan that state's same-sex marriage bans violate 14th amendment

10/02/09 WordinEdgewise, by law professor John Culhane:

Texas District Judge Tena Callahan wanted to give the couple what it needed, so she did. But at what cost? Since Texas has a state constitutional ban on gay marriages, the only way to get jurisdiction over the case is to vault over the state’s ban and declare the law invalid under the federal constitution. So that’s what Judge Callahan did, invoking the U.S. Constitution’s guarantee of equal protection under the laws to get there.

10/02/09 Leonard Link, by law professor Arthur Leonard:

State trial court decisions are interesting in themselves and may affect the rights of the parties if not reversed on appeal, but otherwise have no precedential value. Only appellate courts can issue decisions that are binding on other courts, and only the highest court of a state can issue decisions binding on all the courts of the state, so it will be a while before we can know how important this ruling is.

10/02/09 Alliance Defense Fund press release:

District Judge Tena Callahan issued her ruling in a state court in Dallas yesterday to strike down the Texas marriage amendment, as well as the state DOMA, stating that the state ban on same-sex “marriage” violates the federal constitutional right to equal protection under the Fourteenth Amendment to the U.S. Constitution. This ruling marks the first time that a state court judge has struck down marriage laws based on the U. S. Constitution ... ADF attorneys, who are expected to file a brief in opposition to Callahan’s ruling, are also defending a similar attack on marriage in Oklahoma, where voters approved their state amendment defining marriage as between one man and one woman by 76 percent in 2004. In O’Darling v. O’Darling, a “divorce” is being sought by two women allegedly “married” in Canada. That matter is currently pending before the Oklahoma Supreme Court.

10/02/09 Gay Couples Law Blog, by attorney Gideon Alper:

Because gay marriage laws will change mostly on a state level, creative challenges to these laws give states with less conservative appellate courts more avenues to allow same sex marriage. Just as the Wisconsin legislature tried to work around their state's constitutional ban, sometimes all a judge needs is a plausible legal justification for invalidating a discriminatory law.

Judge Vaugn Walker allows San Francisco City Attorney to intervene in federal challenge of Prop. 8, but bars intervention by gay-rights groups

Here is a selective roundup of commentary, news and press releases. I expect to continue updating this post.

Commentary:

08/20/09 Huffington Post, by law professor Carlos A. Ball:

For better or for worse, the lawyers who have been leading the legal battles for same-sex marriage will be watching all of this from the sidelines, their role limited to the writing of amicus (or "friend of the court") briefs. Although there are many of us who believe that the time is not yet right for this kind of federal constitutional lawsuit, the question no longer is whether the lawsuit should be brought, but whether it will succeed. Mr. Olson and Mr. Boies seem confident that it will. I hope they are right. But if they are not, they will likely go back to their high-powered law practice, leaving it to the gay rights organizations to pick up the pieces.

08/19/09 Leonard Link, by law professor Arthur Leonard:

Today U.S. District Judge Vaughn R. Walker basically accepted Ted Olson's strategy to put the pending Proposition 8 lawsuit, Perry v. Schwarzenegger, on a fast track to trial. Rejecting attempts to intervene by the LGBT movement groups and an anti-gay marriage group, and granting only limited participation to the City and County of San Francisco - which had sought to intervene as a full-fledged co-plaintiff, along the lines of what the state of Massachusetts has done in the pending challenge to the Defense of Marriage Act in the US District Court in Boston - Walker has set a trial date of January 11, 2010, with a sharply expedited schedule for discovery and pre-trial motions.

08/19/09 Law Dork, by attorney Chris Geidner:

Geidner provides a "preview" summary of what is at issue in today's hearing of the Perry case.

08/19/09 Law Dork, by attorney Chris Geidner:

The news today has come from San Francisco that U.S. District Judge Vaughn Walker set a rather quick trial date and has denied the request of several LGBT community groups in California — represented by the ACLU, Lambda Legal and NCLR — to intervene in the Perry v. Schwarzenegger lawsuit challenging the constitutional validity of Proposition 8. The similar request of the Campaign for California Families, which had supported Proposition 8, to intervene also was denied.

08/19/09 WordinEdgewise, by law professor John Culhane:

Geidner discusses two claims made in the supplemental case management statement of Prop. 8 Proponents. One claim is that gay sexual orientation can change. Another is that Prop. 8 fosters procreation and optimal parenting. In the supplemental statement, the Alliance Defense Fund and Cooper & Kirk identify a plan to provide supporting evidence. Culhane cuts to the chase about the fallacies their plan involves.

08/18/09 NY Times Room For Debate Blog / 08/19/09 Law Dork.com

As Geidner writes at Law Dork,

The paper also asks Eugene Volokh, Amy Wax, Evan Wolfson and Kenji Yoshino about Olson’s effort. The answers, for those familiar with the thinkers’ works, were not at all surprising.

My observation on August 20th:

Yesterday's development in the Perry case has far-reaching consequences that more than deserve the attention of the commentators. One consequence concerns the plaintiffs and defendants who Judge Walker has not allowed to intervene.

Attorneys for both plaintiffs and defendants have been at odds with legal groups that sought to intervene, even though little has been said about divisions between the defendants, the Campaign for California Families (CCF), and their respective legal counsel. In fact, while highlighting the dispute between legal groups that oppose Prop. 8, two San Francisco legal newspapers also described the success of Prop. 8 proponents in opposing attempted intervention by CCF.

The Recorder reports that CCF sought intervention, in part, because Prop. 8 proponents had accepted, as fact, that sexual orientation has no bearing on the capacity of gays and lesbians to contribute to society, except to reproduce. "Sexual orientation does impact more than just procreation, " said former Liberty Counsel attorney Rena Lindevaldsen told Judge Walker on behalf of CCF. She claimed that it also impacts childraising.

It's hardly surprising that the news media have supported a carefully crafted, if one-dimensional, drama over who will control the plaintiffs' side of the case. Theodore Olson - who, with David Boies, represents plaintiff couples - told the Los Angeles Times that control of the case presented the issue of controversy between his legal team and three gay-rights groups that sought to intervene on behalf of other plaintiffs. The made-for-media drama has been a deliberate distraction from real, and important, issues of controversy that not only cross both sides of the case, but have fundamental implications on how attorneys for plaintiffs and defendants will present facts and legal arguments.

News

08/20/09 The Recorder and the Daily Journal:

These San Francisco legal newspapers cover intervention disputes between legal groups and parties on both sides of the case. They also report on Judge Walker's observation that while the city of San Francisco had established a governmental interest in the case, Governor Schwarzenneger and the Caifornia Attorney General did not even try.

08/19/09 AP:

Chief Deputy City Attorney Terry Stewart said that during the trial the city planned to call witnesses who could testify about the public health costs of treating gays and lesbian families who feel discriminated against. [Judge Walker] also ordered California Attorney General Jerry Brown's office to work with the city's lawyers in providing testimony on how the voter-approved measure affects state government.

08/19/09 San Jose Mercury News:

I find this the best of the news articles on the August 19th hearing. Among other useful details, the reporter, Josh Richman, identifies scheduled deadlines for discovery, witness designations, and conferences. Richman also considers stipulations to fact that Prop. 8 proponents have made:

The parties already have begun filing briefs listing the areas in which they agree and disagree, setting parameters not only for what's to be argued at the trial but also for the public debate that's sure to rage outside the courthouse as same-sex marriage advocates continue moving toward a new ballot measure to repeal Proposition 8. For example, Prop. 8's proponents wrote in recent briefs they'll probably be able to come to some agreement before trial that gay or lesbian sexual orientation isn't an illness or disorder; that, besides certain aspects of procreation, sexual orientation doesn't relate to one's ability to contribute to society; that sexual orientation is fundamental to one's identity; and on other stipulations to avoid the need for time-consuming testimony and evidence. With such things out of the way, the trial will home in on basic questions of whether Prop. 8 is discriminatory and unconstitutional in its intent and effect, and what the public's interests are in restricting marriage to heterosexuals.

08/20/09 SF Chronicle:

Sponsors of the ballot measure had opposed a trial, saying legal precedents and studies about parents and children can easily demonstrate that voters had reasonable grounds to add a traditional definition of marriage to the state Constitution. But their lawyer, Charles Cooper, did not argue against a trial at Wednesday's hearing in San Francisco and said only that he would try to narrow its scope.

08/19/09 NY Times:

William Duncan of the National Review has responded to this article on Thedore Olson's path to defending marriage equality. Not surprisingly, he doesn't think Olson has lived up to his reputation as a conservative. The Advocate considers the article "a must read." For commentary by law professors, see the Volokh Conspiracy and the Mirror of Justice.

Press Releases

08/19/09 ProtectMarriage.com:

Notice the less-than-coincidental omission about a long-running conflict between ProtectMarriage.com and the California Campaign for Families:

As the only party to Perry v Schwarzenegger that has consistently fought to preserve Prop.8, we are pleased with Judge Walker’s decision to deny intervenor status to Campaign for California Families, the Our Family Coalition, Lambda Legal, and the National Center for Lesbian Rights. The motions for intervenor status clearly demonstrate the discord and disagreement that exists among gay activists as they continue to run roughshod in their efforts to overturn the will of the people in regards to upholding traditional marriage in California.

08/19/09 San Francisco Attorney General Dennis Herrera:

“In terms of our unique public sector perspective and the evidence we’ve already developed, we think the City is an extremely well-prepared co-plaintiff in the kind of trial Judge Walker envisions.”

08/19/09 Statement by National Center for Lesbian Rights, Lamda Legal, and the ACLU:

On behalf of our clients, we are disappointed that the court did not permit organizations that represent California’s diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling.

Professor John Culhane responds to comments on his four-part series, "Marriage Equality and Religious Liberty"

08/7/09 WordInEdgewise:

Law professor John Culhane has responded to comments about his series on this site, "Marriage Equality and Religious Liberty."(See Part I, Part II, Part III, and Part IV.) I encourage you to do more than satisfy your curiosity about his responses. If you haven't explored his site, treat yourself to a welcome discovery. Among the millions of blogs available to engage or distract us, I find that his stands out, and so do many of his other readers. I enjoy his insights on a wide variety of issues and interests, not least because his insights show a delightfully quirky sense of irony and humor.

Part IV in Professor John Culhane's series on marriage equality & religious liberty: Other Contexts, The End of Religious Marriage(?), Final Thoughts

Between August 3rd and August 6th, this site will host a series of daily posts (see also Part I, Part II, and Part III) by Professor John Culhane discussing the conflict between marriage equality and religious liberty. On August 7th, Professor Culhane will respond to comments to his posts.

John G. Culhane is Professor of Law at Widener University School of Law and Director of the nationally ranked Health Law Institute. He also holds the title of Lecturer at the Yale University School of Public Health. He blogs about law, LGBT legal, social and political issues, public and private health law issues, and many other subjects both weighty and frivolous at wordinedgewise.org.

Professor Culhane has written more than two dozen articles for legal journals on a similarly wide range of topics, and is currently editing and contributing to a book on the public health dimensions of charged political issues. He has also been regularly featured in national and local broadcast and print media, including National Public Radio, The Philadelphia Inquirer, Dissent Magazine, and Voice of America. In 2008, he was featured in an award-winning, feature-length documentary about the events of September 11 and Hurricane Katrina, entitled “America Betrayed,” from Eclipse Entertainment.

At Widener, Professor Culhane has won three Outstanding Faculty awards, and in 2005 became the first to receive the Douglas A. Ray award for Distinguished Scholarship.

Marriage Equality and Religious Liberty

Part IV: Other Contexts, The End of Religious Marriage(?), Final Thoughts

The patient reader who’s followed the preceding posts might now wonder if there are any cases, aside from the core where religions get to decide whom to marry, where I’d allow the religious exemption. There are.

The first is clearly set out and well-defended by Chai Feldblum in her contribution to Same Sex Marriage and Religious Liberty, entitled “Moral Conflict and Conflicting Liberties.” Where a (usually religious) belief community sets up enterprises – like schools, day care centers, and summer camps – to inculcate certain values, they should enjoy an exemption from antidiscrimination laws (not limited to those recognizing same-sex marriages), as long as they are clear in their beliefs that homosexuality is wrong. And they must enroll only those who wish (for themselves or their children, I guess) to be inculcated in those beliefs, to dispel any idea that the enterprise is just a convenient vehicle for excluding gays and lesbians.

Another exemption I’d support is for religiously affiliated organizations, assuming that the religion with which they’re affiliated views homosexuality or same-sex unions as immoral. I’m not talking about employment (except maybe at the highest levels, per Feldblum) nor benefits (and why should benefits be tied to marriage in the first place, I often wonder?), but about the kinds of interactions that would be particularly hard for such an organization to countenance. These would need to be debated and then spelled out, but would include – to be specific – adoption placement. There are typically many public and private adoption services, and I can’t see harm to a same-sex couple (or individual) in being directed to an organization that will – let’s face it – work harder to find a suitable placement for them than, say, Catholic Charities. Surely here respect for both sides counsels the exemption.

Generally, I wouldn’t let the Knights of Columbus, or any other fraternal organization – or even a religious organization, for that matter – refuse to rent space to a same-sex couple for their wedding if they otherwise made the place available to all comers. Either swim in the stream of commerce, or get out of it. (The Ocean Grove conflict comes to mind here. I spent a few days there last week (taking a break, not doing research on the case!), and found it to be an odd and somehow invigorating mix of families, seniors, obviously religious folk, and members of the gay and lesbian community. Here’s my iPhone photo of the beach pavilion that’s at the center of the controversy. The link above is to a very good and nuanced NPR story discussing Ocean Grove, and photo case, and others.)

One final thought: In writing and thinking about this issue, I found myself inclined more than ever to agree with the position that it’s high time to separate the civil and religious institutions of marriage. Laycock makes this point with deadly efficacy toward the end of his Afterword. I think he has to be right in thinking that this separation would go a long way towards calming the fears of some members of faith communities who see gay “marriage” as sinful. If everyone has a civil union, and if these objectors can rest secure in the knowledge that the couple isn’t married in their (and, presumably their church’s) eyes, the small number of conflicts might decrease to the vanishing point.

I leave this set of posts with the firm conviction that the areas of true conflict will be few, and that reasonable people of good faith can reach accommodation – usually without the need for the heavy hand of the law.

Part II in Professor John Culhane's series on marriage equality and religious liberty: Can (or Should) Religious Exemptions be Limited to Marriage?

Between August 3rd and August 6th, this site will host a series of daily posts (see also Part I) by Professor John Culhane discussing the conflict between marriage equality and religious liberty. On August 7th, Professor Culhane will respond to comments to his posts.

John G. Culhane is Professor of Law at Widener University School of Law and Director of the nationally ranked Health Law Institute. He also holds the title of Lecturer at the Yale University School of Public Health. He blogs about law, LGBT legal, social and political issues, public and private health law issues, and many other subjects both weighty and frivolous at wordinedgewise.org.

Professor Culhane has written more than two dozen articles for legal journals on a similarly wide range of topics, and is currently editing and contributing to a book on the public health dimensions of charged political issues. He has also been regularly featured in national and local broadcast and print media, including National Public Radio, The Philadelphia Inquirer, Dissent Magazine, and Voice of America. In 2008, he was featured in an award-winning, feature-length documentary about the events of September 11 and Hurricane Katrina, entitled “America Betrayed,” from Eclipse Entertainment.

At Widener, Professor Culhane has won three Outstanding Faculty awards, and in 2005 became the first to receive the Douglas A. Ray award for Distinguished Scholarship.

Marriage Equality and Religious Liberty Part II:

Can (or Should) Religious Exemptions be Limited to Marriage?

Yesterday, I noted that the call for religious exemptions to same-sex marriages that some are calling for are based on incidents that didn’t directly involve marriage. The always-thoughtful Dale Carpenter has gone further, questioning whether any of the issues that arise because of marriage really differ from those arising under state anti-discrimination law. In this regard, he discusses two well-known cases.

In the first, a New Mexico photographer was sued by a same-sex couple for declining to shoot their commitment ceremony. But the suit was brought under the state’s anti-discrimination law, as New Mexico doesn’t recognize same-sex marriages. The other, better-known case, involved the Catholic Charities of Massachusetts, which got out of the adoption business altogether rather than have to place kids with same-sex couples. Note, though, that Massachusettts has in place both antidiscrimination law and legislation that permits gays and lesbians to adopt on the same basis as their straight counterparts. Thus, as even some conservatives will admit when pressed, this case isn’t about marriage, either. It did happen that the issue arose only after Massachusetts began recognizing same-sex unions, but the timing was not legally relevant.

I’ve found it surprisingly hard to pin down the views of the religious exemption advocates on whether, or why, their suggested accommodations should be restricted to events and incidents surrounding same-sex marriage themselves. This tennis match exchange between five professors advocating for exemptions and Carpenter didn’t illuminate matters for me, either. (This link will get you to the whole series of posts.)

Nor was clarity provided by an e-mail exchange I had with Robin Wilson. Consider the following dialogue between us. (My questions to her are in italics; her response is in bold):

A man walks into a florist's shop to buy some flowers for a wedding. The owner who's working there shows him some appropriate flowers and wraps them up. The man then says: "Write on the card: 'To the Gayest Couple I Know: Ted and Fred." May the owner then refuse the sale on (let's assume bona fide) religious grounds?

Can a jeweler refuse to sell a diamond engagement ring to someone if she knows that it's to be given to a member of the same-sex? If not, why not? What in particular is significant about the "ceremony" as opposed to other signals of the state's recognition of the couple's wedding?

I would say if the flowers are for the wedding of Ted and Fred’s wedding, then yes, the florist could refuse if state law allowed him or her to, as I have argued it should. Refusals in my views are likely to be few but for a small state like Maine, if we predict that refusals by persons in the stream of commerce are likely to cause great hardship, that can be solved with a the hardship exemption like the one I argue for with first order conflicts (e.g., a person can refuse unless it causes a hardship to the couple).

If the flowers are not for Ted and Fred’s wedding, then no, the florist would not be permitted to refuse to sell them. Here it would have significance to me that the flowers are not to be carried by a wedding party member or used in the wedding or reception, neither were they requested by or on behalf of the couple for the wedding.

-------------

OK, she saw what I was doing by moving from purchases related to a wedding and those relating to other signs or signals of same-sex commitment. And she answered me directly. But why should marriage be treated differently? Again, Wilson:

[Y]our hypo[theticals] test why I would limit exemptions for individuals to the wedding ceremony. For many folks, marriage is a religious institution (and was long before it was a civil one) and they have religious views about this. Some believe that facilitating the solemnization of the relationship facilitates something they consider to be immoral—an act that itself has religious significance for them. An exemption that is not tied tightly to the ceremony and the relationship’s solemnization goes beyond facilitation of the relationship. A very broad exemption may encroach on a gay couple’s right to receive services in society like anyone else—to hail taxis and order burgers and rent apartments—all commercial services that do not have the religious significance of a wedding ceremony, the denial of which is difficult to explain as anything other than bigotry.

Practically speaking, her response seems sensible enough. Intellectually, though, it’s much less satisfying. Taxis and burgers are one thing (OK, two things), but “renting an apartment” is another. The case law is littered with tales of landlords who balked at renting apartments to unmarried couples, and many feel even more strongly about same-sex couples, whether they’re allowed to marry or not. Who’s to say these aren’t also moral objections, religiously based? (And, as Chai Feldblum pointedly asks, why do the objections need to be religious at all, as opposed to somehow central to one’s beliefs, or even to their identity?)

And what about the statement that exemptions for commercial entities in connection with activities not tied to the ceremony aren’t religiously based and are “difficult to explain as anything other than bigotry”?

Leaving aside the litigation nightmare that might be expected (but probably not; see next section) in figuring out when an exempted activity is “tightly tied” to the ceremony, I find this statement strange. Viewed through one lens, any refusal to recognize a same-sex couple, no matter the context, is bigotry -- religious objections notwithstanding. Through another, recognition of a same-sex couple’s union, no matter the setting, is an unwelcome infringement on their religious liberty. Wilson attempts, unsuccessfully, to avoid the problem by fiat. Marriage might be an acceptable place to draw the line she’s suggesting, but doing so is less than intellectually satisfying. I think Professor Laycock is closer to the mark in saying that “refusals of service may be an act of bigotry or social protest, but very often, the claim to feel personal moral responsibility…will be in complete good faith.” Afterword, Same-Sex Marriage and Religious Liberty, p. 195.

There’s more: I have the uneasy sense that, whatever the reassuring statements about “tightly tying” the exemption to the ceremony itself, that’s not quite what those advocating for these carve-outs really have in mind. The actual text of a proposed legislative exemption to recognizing same-sex marriages, drafted by Wilson and others, covers any and all “individuals” and bars penalizing them "for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization or any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage, where [doing so] would cause [that person or organization] to violate their sincerely held religious beliefs.” (emphasis added). (This site will link you to the letter that Wilson and others sent to Connecticut lawmakers.) [Michael Ginsborg: This site will link you to all the letters that have been sent to legislators.]

It’s the “refusing to treat as valid” that concerns me. On some level, the decision of a florist to refuse to sell flowers to a member of a same-sex couple on the occasion of, say, their tenth anniversary, is a refusal to “treat as valid” their marriage, and therefore potentially protected by the law.

This isn’t to decide, of course, whether this “failure to sell” should be protected, only to say that the line between marriage and other arenas in which the conflict arises isn’t clear, either conceptually or in at least some suggested formulations of the religious exemption.

Tomorrow, I’ll turn to my views of how the accommodation between these competing liberty interests should be made, mostly but not exclusively in the marriage context.

Fourt-Part Series on Marriage Equality and Religious Liberty By Professor John Culhane: Part I: Defining the Conflicts and Issues

During the next four days, this site will host a series of posts by Professor John Culhane discussing the conflict between marriage equality and religious liberty.

John G. Culhane is Professor of Law at Widener University School of Law and Director of the nationally ranked Health Law Institute. He also holds the title of Lecturer at the Yale University School of Public Health. He blogs about law, LGBT legal, social and political issues, public and private health law issues, and many other subjects both weighty and frivolous at wordinedgewise.org.

Professor Culhane has written more than two dozen articles for legal journals on a similarly wide range of topics, and is currently editing and contributing to a book on the public health dimensions of charged political issues. He has also been regularly featured in national and local broadcast and print media, including National Public Radio, The Philadelphia Inquirer, Dissent Magazine, and Voice of America. In 2008, he was featured in an award-winning, feature-length documentary about the events of September 11 and Hurricane Katrina, entitled “America Betrayed,” from Eclipse Entertainment.

At Widener, Professor Culhane has won three Outstanding Faculty awards, and in 2005 became the first to receive the Douglas A. Ray award for Distinguished Scholarship.

Marriage Equality and Religious Liberty
Part I: Defining the Conflicts and Issues

First, thanks to Michael Ginsborg, who hosts this always-informative and responsible site, for inviting me to do this series of guests post here. I visit often for a comprehensive account of what’s happening with the marriage equality movement, and with GLBT rights more generally.

Michael suggested I write on the issue of religious exemptions relating to gay marriages, just as the topic was heating up. I doubt that even he could have known how explosive the issue would become, and how much would come to be written on it. Thus, although no one’s ever accused me of diffidence when it comes to politics (especially gay rights), I should confess some trepidation in taking on this topic. More so, because the more I’ve read, the more difficult and vexing I’ve found the topic to be.

But, what is the topic? Once unleashed, can these exemptions be restricted to the marriage arena? That’s the preliminary question I’m addressing today, in the first of these four consecutive, daily posts. As is my practice, I’ll try to discuss these legal and policy issues in a way that will interest lawyers, law students, academics, and everyone else with an interest in the subject.

First, a little background on the emerging conflict. States that have been legislatively mandating the issuance of marriage licenses to same-sex couples have been urged to carve out safe harbors for religious objectors. Very broadly speaking, these exceptions fall into four categories.

• First, exceptions are routinely granted to religious institutions whose doctrines oppose same-sex marriages. They don’t have to perform them, nor support them by letting them use their facilities (generally). Hysterical predictions aside, this is the clearest and least controversial exception. Of course, it applies only to marriages and not to any other practices of a church, synagogue, mosque, or of other places of worship, that might interfere with the rights of same-sex couples, or of gays generally.

• Second, what about religious or “affiliated” organizations that want to go beyond refusing to marry same-sex couples? To use an actual example, should the Methodists have to rent out their beach pavilion, used for both church services and other religious and secular purposes, to a same-sex couple that wants to marry there?

• Third, there’s the issue of whether to allow a conscience exemption to a state worker whose religious beliefs would be compromised by facilitating a same-sex marriage. Should a clerk have to process the application of a gay couple? A prominent group of law professors support such an exemption.

• Fourth, and to my surprise, the question has been raised as to whether the constellation of private business entities – and their employees – who oppose same-sex unions should be able to “step aside,” as some of these scholars demurely suggest. For example, should a florist who opposes same-sex marriages be able to refuse to participate in a gay wedding, either by supplying the flowers for it directly, or by selling flowers to a guest?

So, in which of the above cases should the law recognize an exemption based on religious belief? I’ll start by agreeing on the easiest case (the first one above). Almost everyone agrees that religions must be allowed to “be themselves,” which means they get to decide who’s married in their eyes.

Let’s move on to the other, more interesting, cases. Once we do, there are at least four issues or questions that come up across the categories, each of which I’ll address in the next few days.

First, it’s clear that resolving the conflict in each case will work some kind of hardship on the “loser” – the gay couple denied a service and suffering a loss of dignity or worse (such as being unable to take advantage of married student housing by a religious university), or the religious objector forced to choose between violating her religious teaching, or following it by, for example, losing a job, being sued, losing a tax exemption, and so on..

For reasons that are entirely clear, and that I fully sympathize with, many in the LGBT community have been reluctant to acknowledge that there are two competing interests here, both of which deserve respect. After approximately forever, we’re just now beginning to achieve equality, but there’s a long and fraught road ahead of us. We still don’t even have a federal hate crimes bill or job protection at the national level. And it’s fair to ask: Can we please repeal the Defense of Marriage Act before we even start worrying about the rights of our religious opponents? Nonetheless, we should be honest – and practical – enough to see these conflicts as real, and accord our opponents the respect that we demand (but rarely get from them, I note). It’s incumbent on people of good faith to seek a practical solution to these thorny problems.

A second, more practical question, is whether it’s possible, or even a good idea, to craft legislative rules carefully enough to resolve most (never all!) cases. If not, is leaving flexibility to the courts a good solution? I think not, and will try to defend this position during the next few days.

Third, can this controversy be cabined to the case of marriage equality? Let me give you a sophisticated answer: No. This will be the subject of tomorrow’s post.

The last question is the one I’ll answer right now. Practically speaking, does this issue matter a great deal? Are there likely to be serious and numerous conflicts between same-sex couples and the religious folks who oppose them?

Probably not. Dale Carpenter hasn’t found a single reported case testing the religious freedoms of objectors against the rights of same-sex couples to marry or “civilly unite.” That doesn’t mean, of course, that conflicts haven’t arisen, or even that the odd suit hasn’t been filed. (Generally, only appellate cases are reported, and many cases of course settle even before trial.) But he’s probably right that conflicts are rare, especially in the commercial realm. As he states, probably accurately:

“The really interesting question is why there have been so few conflicts. The main reason, I suspect, is common sense and forbearance on the part of both gay couples and those who object on religious grounds to gay marriage. Unless they have no other choice, few gay couples want to pay for marital goods or services from people who don’t want to provide them. Few service providers object to gay marriage on religious grounds, and….fewer still believe their faith requires them to refuse goods or services (or housing) to gay couples. Plus, they want the business.”

For that reason, Carpenter, Nan Hunter, and others don’t so much mind these exemptions, especially, as Hunter says, if they are likely to sweep away an excuse or objection to marriage equality legislation. In New Hampshire, for example, Governor John Lynch signed such a law after the legislature drafted a religious exemption that isn’t likely to afford protection beyond what was already constitutionally available.

Nonetheless, I think (as do all of these legal scholars, and others) that the debate is worth having – and not just to fill up the blogosphere and law reviews. (Can either ever be filled, though? Apparently not.) I think that we need to decide what kind of exemptions we want to allow – not just for marriage, but more generally. The push for marriage equality has provided a useful place to have the conversation, but it speaks to something broader.

That’s a lot for one day. Come back tomorrow after a good night’s sleep.

Law professor Carlos A. Ball, "Same-Sex Marriage as a Means to Something Better" - and a related article by law professor John Culhane

07/28/09 Huffington Post, by law professor Carlos A. Ball:

In this post, Ball discusses the movement to expand access to the rights and benefits of marriage beyond married couples, recognizing Nancy Polikoff as one the movement's leading proponents. Ball contends that "our goal, over the long run, should be to lessen the prioritization of marital status in the distribution of rights and benefits."

Law professor John G. Culhane has recently argued that the legal rules of dissolution provide a compelling reason to privilege marriage over less formal commitments, such as relationships among unmarried cohabitants. [John G. Culhane, Marriage Equality? First, Justify Marriage (If You Can), 1 Drexel L.R. 485 (posted 07/03/09)] He discusses "ALI’s Principles of the Law of Family Dissolution ... which devotes an entire chapter to suggested rules for first defining, and then allocating property between, domestic partners." [505] Informed by the ALI model, the law, he believes,

"is moving towards a reasonable position on dissolution of relationships: marriages continue in a favored position that recognizes the interdependency and duration that most married couples want, but other long-term, committed relationships are protected to the extent that their lived reality mirrors that of married couples." [507]

Saskatchewa Court of Appeal to rule on constitutionality of proposed exemption for marriage commissioners with religious objection to gay marriages

07/04/09 The Star Phoenix (Gay Marriage Watch):

The government of Canada's Saskatchewa province has proposed legislation that would confer exemption on marriage counselors who refuse to perform same-sex marriages for religious reasons. (Prince Edward Island is reported to be the only province that has this kind of religious-liberty exemption, while other provinces informally allow these counselors to "opt out.") The legislation would ensure that other commissioners are still available to perform these marriages. The government has asked the provincial Court of Appeal to rule on the constitutionality of the legislation, and will not introduce it until the Court has issued a ruling.

The Star Phoenix reports that the government defends the proposal as a means to settle an issue that has been the subject of litigation:

In 2008, the Saskatchewan Human Rights Tribunal fined a Regina marriage commissioner $2,500, ruling he had violated the province's human rights code by refusing to marry a gay couple for religious reasons. That case is under appeal to the Court of Queen's Bench, with the judge reserving his decision, while two other marriage commissioners are also suing the government over the lack of a religious exemption.

Widener University law professor John Culhane has explained why he thinks it is "a bad idea" to exempt marriage-licensing officials who would otherwise have a legal duty to issue marriage-licenses. He considers an unqualified exemption a form of state-sanctioned discrimination that protection of religious freedom can not justify, but would support an informal, administrative arrangement that allowed such officials to "opt out." Kelly Ries, co-chair of the Saskatoon Diversity Network, also faults the proposed legislation as unjustifiably discriminatory:

"I don't think the gay community is prepared to say, 'We're prepared to be discriminated against.' We fought long and hard not to be, we fought long and hard to have a place at the table with everyone else.

07/11/09 Globe and Mail editorial:

This is not, really, about a clash between the religious freedom of marriage commissioners and the rights of gays. Public officials have no right to decline to do their core duties because of religious belief. A public school teacher cannot refuse to teach sex education because of religious objections. A library worker cannot refuse to sign out books that violate her belief system.

Law professor John Culhane on New Hampshire, Marriage Equality, and Religious Exemptions

06/04/09 WordinEdgewise:

Widener University law professor John Culhane expects to post a more extensive discussion of the religious-liberty issue. Here he addresses

the very limited issue of allowing government workers to refuse to participate in this process. Here’s my bottom line: This is a very bad idea.

Is Strauss v. Horton a "gay-rights block buster"?

05/28/09 WordinEdgewise:

An unidentified "legal reader" of Andrew Sullivan's Daily Dish explains why he or she thinks Strauss v. Horton represents a "gay-rights block buster." Widener University law professor John Culhane expresses his concern that he doesn't "know (nor can anyone) how far the court would be willing to go in supporting more far-reaching restrictions on the rights of the GLBT community, including revoking domestic partnership protections ... the court’s actions revealed principle to be rhetoric, expendable at the first sign of trouble (read: the prospect that the justices might not be retained when they next appear on the ballot)."

A related question concerns whether rulings upholding same-sex marriage have set back the back the cause of marriage equality, by unleashing a political backlash. Sullivan favors a 05/26/09 post by Ilyra Somin, who contends that a ruling like that in Strauss can still represent a net gain to the cause. Somin finds evidence in the influence of the "Massachusetts Supreme Judicial Court's 2003 Goodridge decision mandating gay marriage equality in that state." Such decisions, he says, can help shift "the parameters of the political debate." In this respect, Somin appears to support one version of popular constitutionalism, in which groundbreaking decisions on the expanded scope of constitutional protections can increase public support for commensurate legislation and successor-rulings.

Legal commentary on California Supreme Court's ruling on Prop. 8

Analysis

05/27/09 WordinEdgewise, by Widener University law professor John Culhane (analysis of Justice Moreno's dissenting opinion)

05/26/09 WordinEdgewise, by Widener University law professor John Culhane (analysis of the majority opinion)

05/26/09 Leonard Link, by New York University law professor Arthur Leonard

05/26/09 Waldlaw Blog, by Deborah Wald, Chair of the National Family Law Advisory Council of the National Center for Lesbian Rights


Reaction

06/02/09 The California Constitution, by appellate practitioner Steve Mayer

06/02/09 The California Family Law Blog, by family law practitioner Mary Ellen Waller

05/30/09 hunter of justice, by Georgetown University Law Professor Nan Hunter

05/29/09 Sacramento Bee, comments by Lambda Legal senior counsel Jennifer Pizer and McGeorge Law School professor Lawrence Levine.

05/28/09 Which Way LA, featuring ADF Attorney Austin R. Nimock and Brad Sears of the UCLA Williams Institute.

05/28/09 Reality Check Live with Mike Monokian, discussion of the ruling by ADF attorney Austin R. Nimock.

05/28/09 San Diego Union-Tribune, by Glen Lavy, senior vice president and senior counsel for the Alliance Defense Fund

05/27/09 Waldlaw Blog, by Deborah Wald (faulting the ruling for undermining state constitution's equal protection clause)

05/26/09 CalLaw ("Prop 8 reaction from lawyers and academics")

05/26/09 Volokh Conspiracy, by University of Minnesota law professor law professor Dale Carpenter

05/26/09 Volokh Conspiracy, by Ilyra Somin, with links to law blog debate on whether In re Marriage Cases represents a "net gain" for advancing marriage equality

05/26/09 Gender and Sexuality Law Blog, by Columbia University law professor Katherine M. Franke

05/27/09 Daily Journal (subscription required), "California's Step Back," by Russell S. Roeca, 2009 president of The Bar Association of San Francisco

05/26/09 Los Angeles Times, "You Just Can't Change Marriage", by Andrew Pugno, attorney for Yes on 8 / ProtectMarriage.com

05/27/09 Los Angeles Times, comments by Goodwin Liu, Vikram Amar, Jesse H. Choper, Douglas Kmiec, Douglas Kmiec, Andrew Pugno, and Shannon Price Minter.

05/27/09 San Francisco Chronicle, "On the Prop. 8 Ruling," by San Francisco City Attorney Dennis Herrera

05/27/09 San Francisco Chronicle, comments by Evan Gerstmann, author of Same-Sex Marriage and the Constitution, and law professor Richard Hansen.

05/27/09 Townhall.com Talk Radio (Hugh Hewitt Show), UC Irvine Law School Dean Erwin Chemerinsky and Chapman University School of Law Dean John C. Eastman discuss Prop. 8.)

05/27/09 Democracy Now, interview of Bryan Wildenthal," the first openly gay law professor at the Thomas Jefferson School of Law."

05/27/09 Legal Broadcast Network, "Lambda Legal's Jon Davidson Discusses Prop 8 Ruling"

Legal newspapers and legal news blogs

05/26/09 CalLaw (roundup of reaction within legal community)

05/27/09 National Law Journal

05/27/09 Daily Journal (subscription required), critical comments by appellate practitioner Jon B. Eisenberg and Robert Bradley Sears, executive director of UCLA School of Law's Williams Institute on Sexual Orientation Law and Public Policy)

05/27/09 Metropolitan-News Enterprise

05/26/09 Jurist Legal News

Newspaper editorials

06/09 "Newspaper Reactions to California Marriage Cases," a comprehensive survey of editorials by the Institute For Marriage and Public Policy

05/27/09 NY Times

05/27/09 SF Chronicle

05/27/09 Wall Street Journal

05/27/09 Washington Post

05/26/09 LA Times


Sample advocacy group press releases

05/27/09 press release by National Center for Lesbian Rights and ACLU, "Make Change, Not Lawsuits"

05/26/09 Pam's House Blend (summary of releases by Prop. 8 opponents)

05/26/09 Alliance Defense Fund

05/26/09 Liberty Counsel

05/26/09 Pacific Justice Institute (anticipates religious-liberty challenges to married same-sex couples)

05/26/09 Yes on 8 / Protectmarriage.com

05/26/09 Lambda Legal

05/26/09 Equality California
05/26/09 Communities of Color Statement

Reflecting on The Way to Win Marriage Rights from the Perspective of Roe v. Wade

05/21/09 Gender and Sexuality Law Blog:

Columbia University law professor Katherine M. Franke favors a position that she calls "disestablishment of marriage": if marriage "can’t be had on fair terms, states shouldn’t be in the business of providing it." She appears to support an equivalent alternative to marriage that the state would recognize - a civil institution in which both same-sex and opposite-sex couples, among other family relationships, have all the rights, benefits, and duties of marriage. (For example, she welcomes a version of this proposal that that the Domestic Partnership Initiative represents, even though she prefers the state legislature to enact it.)

I have already expressed a misgiving about the ambiguity surrounding her use of "disestablishment" to characterize her idea. Disestablishing marriage appears to imply acknowledging that it is exclusively a religious institution that should have no element of state recognition. This sense of "disestablisment" represents a version of the marriage-alternative proposal that Pepperdine University law professors Douglas Kmiec and Shelley Ross Saxer have recently advanced here and here. During the Prop. 8 oral arguments, Justice Ming Chin had asked Kenneth Starr whether the Kmiec-Saxon proposal would provide equal protection to same sex couples, and whether the Court could order it. Franke, however, acknowledges the cultural values of dignity and respect that gays and lesbians, no less than straights, associate with marriage, whether or not the association has religious underpinnings. And, as I understand her, she believes that not just married couples, but other family relationships - including partners in committed relationships - deserve the same rights and benefits of marriage.

On May 7th, Franke participated in NY City Bar Association panel on legalizing same-sex marriage. In her latest post, she responds to criticism of her view that two legal arguments advanced for same-sex marriage risk precluding defense of the marriage-alternative proposal. These are the arguments that substantive due process makes the right to marry fundamental, and that same-sex couples have the same dignity interest in marriage that opposite-sex couples have. She faults these arguments for their (unintended) consequences, just as she faults the effect on impoverished women of the limitations of the privacy argument for Roe v. Wade:

The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community.

Nevertheless, Widener Law Professor John Culhane has already explained why the equal-protection argument that Franke accepts depends on the dignity argument that she rejects.

California Supreme Court to issue Prop. 8 ruling on May 22nd at 10 am PST; comments by law professors

Here is the announcement of the Court's forthcoming opinion, and here is a media advisory.

05/22/09 WordinEdgewise:

Having asked several questions that the California Supreme Court ruling may answer, John G. Culhane, a law professor at Widener University, asks another. Will the Court reverse its position on the inherent inequality of California's domestic partnerships, and somehow regard them as equal to marriage, except in name?

05/22/09 Leonard Link:

Arthur Leonard, a law professor at New York University, considers the consequences if the Court upholds Prop. 8 and invalidates the over 18,000 marriages performed before the November election.

Prop 8 Decision to Come Down Tomorrow? Here’s What to Look For.

05/19/09 WordinEdgewise:

John G. Culhane, a law professor at Widener University, identifies several questions the California Supreme Court may answer when it issues its ruling on Prop. 8. One question concerns the Court's finding that gays, as a "suspect class," require heightened protection when the Court reviews claims of unconstitutional discrimination based on sexual orientation. If, as expected, the Court upholds Prop. 8, then that standard of review - for all suspect classes in state constitutional cases - remains captive to the whims of a marginal majority of voters who adopt an initiative constitutional amendment limiting or proscribing rights that, under this standard, the Court had found fundamental.