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Author: Sonja Starr

48

Public opinion on same-sex marriage

Thanks again to Danielle and Dan for inviting me to blog here this month. I didn’t expect, when I started this guest-blogging stint, that same-sex marriage would be a primary focus of my posts–it’s something I care about as a citizen, but not one of my academic research fields. But my posts have been largely driven by events, and it seems clear that April 2009 will be looked back upon as a turning point in this civil rights movement. The month started with major developments in Iowa, Vermont, and DC, and today it ends with what strikes me as even bigger news: the Washington Post and ABC News released what I think is the first nationwide poll showing that more respondents support same-sex marriage than oppose it. The split (49% to 46%) is within the poll’s margin of error, but even so, it represents a pretty dramatic shift–less than three years ago, the same poll split 58% opposed and 36% in favor.

The Post article treats this as being largely a story about demographics, and of course that is part of the explanation: young people are much more likely to support marriage equality than older people. But the composition of the population hasn’t changed fast enough to explain shifts of this magnitude in a few years–it’s also got to be that a lot of people, young and old, have changed their minds. As I suggested in an earlier post, court decisions might have contributed to that change–by direct persuasion, by starting a statewide or nationwide conversation that gets people to question traditions, or simply by allowing gay and lesbian couples to begin to marry (which could shape public opinion as people realize that fears about the effects on marriage as a social institution have not panned out).

In any event, whatever the role of courts in bringing about this cultural shift, now that it’s happening, it suggests that the courts will probably play a less central role in pushing the movement toward marriage equality forward in the future. This is increasingly becoming a battle that marriage equality advocates can win in legislatures and at the ballot box. As the poll numbers shift, we’re likely to see increased support for same-sex marriage from politicians who might have been reluctant to take that stand previously. (I suspect this will eventually include President Obama.) That support may be led by Democrats, but it will cross party lines. Of course, this cultural shift is far from being complete, as California voters demonstrated a few months ago. There are still a substantial number of energetic opponents (like the National Organization for Marriage, which I’ve noticed seems to have dropped its priceless “2M4M” slogan). But the road ahead may not be that long. Check out statistician Nate Silver’s state-by-state projections–a few weeks ago, he predicted that every state will have majority support for marriage equality by 2024. Silver also projected that marriage equality would achieve majority support nationwide by “sometime in the 2010s”–so if the Post/ABC News poll is correct, Silver’s projections may have been on the conservative side.

Increasing public support matters, and not just because it is likely to affect the ultimate state of the law–I suspect that given a choice between achieving marriage equality through the courts and achieving it through the democratic process in the same timeframe, just about every equality advocate would prefer the latter (even if the court decisions couldn’t be overturned by referendum). That’s because the battle over same-sex marriage is ultimately one about social meaning–it’s about the expressive power of the law. Sure, it’s about the various legal benefits attached to marriage too, but if that were all it was about, then both sides of the struggle would treat civil unions as being interchangeable with marriage, and they don’t. The recognition of committed same-sex unions as marriages is a social statement that such unions, and the men and women in them, are worthy of respect rather than stigma. So if the ultimate goal is to foster inclusive social norms, then changing public opinion isn’t just a sign that the movement may achieve its goals–in an important sense, changing public opinion is the central goal. Court decisions, in contrast, can only ever be a step along the way.

2

Thoughts on conference format

Like most academics, I attend conferences fairly often, and enjoy some of them more than others. I wanted to share a few thoughts on format features that tend to make conferences a better experience from my perspective, and to invite commenters to share their views. I have enjoyed conferences that follow a variety of different formats, and I think format diversity is good, for reasons discussed below. Still, there are a few features that I tend to prefer and would like to see more often:

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4

Update on torture prosecutions

Quick update: President Obama has now announced that he has not ruled out prosecuting the architects of the Bush Administration’s torture policy. While this announcement is technically consistent with his statement last Thursday (which promised only that the actual CIA interrogators would not be prosecuted), the President appears to be backpedalling from his broader suggestion that it’s time to move on rather than seek “retribution.” I think this is a positive development–as I explained in my Friday post, given that there is fairly strong reason to believe that torture occurred, the Convention Against Torture clearly obligates the United States to undertake a serious criminal investigation and to bring appropriate prosecutions if the evidence supports it.

7

Torture and “laying blame for the past”

On Thursday, the Obama administration released several of OLC’s notorious, but previously classified, memos on so-called enhanced interrogation techniques. President Obama made a statement decrying the techniques at issue but offering assurance to “those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This promise appears to be directed at the CIA interrogators themselves, not at the lawyers who drafted the memos or the policymakers who ultimately called the shots. Still, a passage near the end of Obama’s statement suggests that the administration’s not planning to charge anybody, period. He stated:

“This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.”

This is a poetic passage, but is it right? The United States is party to a treaty (the Convention Against Torture ) that unambiguously requires it to take suspected torturers (or those complicit in torture) into custody and either extradite them or “submit the case to its competent authorities for the purpose of prosecution.” Now, Obama did not use the word “torture” in his statement, which was surely not an accidental omission—but his AG did explicitly state that waterboarding was torture in his confirmation hearings, and Obama presumably condemned these memos because he disagrees with their legal conclusion that none of the disputed techniques constituted torture. Let’s assume arguendo, then, that torture took place.

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18

And more good news for marriage equality….

Quick follow-up to Friday’s post: Vermont just became the first state to adopt same-sex marriage by legislative vote, with an override of the governor’s veto. A couple of questions for commenters:

–Many critics of judicial decisions promoting same-sex marriage had previously focused their complaints on courts’ “activist” interpretation of state constitutions or their circumvention of popular will. Will those critics support or at least accept this development in Vermont? (My guess is that some will, because some are sincere in their preference for major social change to come through the democratic process–but for many others the process arguments are fig leaves, covering antipathy toward same-sex marriage itself.)

–What lessons will historians draw concerning the ability of courts to promote social change? As readers no doubt remember, Vermont’s supreme court issued a landmark decision nearly ten years ago requiring reform of the marriage law, but holding that civil unions were a constitutionally permissible alternative to marriage. The legislature at that time chose civil unions, but over the course of the past decade, apparently, social norms in Vermont have shifted. Can the judicial decision be credited with triggering that shift, by starting a statewide (indeed, nationwide) conversation? If so, was the court’s deference to the legislature in selecting the remedy wise from the perspective of promoting lasting social change? Or could a similar result have been reached if the court had just gone the whole distance on its own, as in Massachusetts or Connecticut–or California, where chances are good, considering demographics and changing attitudes, that it won’t take ten years for the people to reinstate the rule adopted by the high court? (Of course, these comparisons are complicated by the fact that Vermont’s decision came considerably earlier in our national conversation about this issue. In 1999, the main precedent for the Vermont court to consider was what had happened in Hawaii, where voters had amended the state constitution following a court decision that had taken a big step toward legalizing same-sex marriage.)

UPDATE: Also today, the city council of Washington, DC voted unanimously to recognize same-sex marriages performed in other states. It’s been an eventful few days on this front!

36

Marriage Equality in Iowa

The Iowa Supreme Court today unanimously struck down the state’s marriage law as a violation of the Iowa equal protection clause. I don’t have much to add to the well-reasoned opinion, but just wanted to call it to the attention of anyone who missed it, as it is currently buried in scrolldown-required small print at the New York Times and Washington Post websites. (Seriously, I know this isn’t the first state, but isn’t this still newsworthy?)

A brief summary, in case you don’t have time to read 65 pages: The Court holds that intermediate scrutiny is appropriate because (a) gays and lesbians have long been victims of invidious discrimination, (b) sexual orientation is unrelated to ability to contribute to society, and (c) sexual orientation is at least largely immutable. (The Court points out that it doesn’t need to find definitively that nobody can ever change his or her orientation to justify intermediate scrutiny; after all, some people change their sex.) Applying this standard, it then rejects all of the county’s proffered justifications for marriage exclusion. First, the claim that the marriage law should be upheld “to preserve the traditional definition of marriage” is tautological, and treats discrimination “as an end in itself.” Second, the claim that opposite-sex parents are better for kids has been disproven by a raft of studies, and even if it were true, marriage exclusion is a poor fit to the kid-protective aim: the law does not prevent gays and lesbians from becoming parents, and it does not exclude from marriage people who would undoubtedly make way worse parents, like straight convicted child abusers, while it does exclude gays and lesbians with no intent to raise children. Third, the related “promoting procreation” goal also lacks a substantial relationship to the law—straight people will not stop having babies because gays and lesbians can marry. Fourth, the goal of “stabilizing opposite-sex relationships” likewise has no logical relationship to excluding gays and lesbians from marriage. Finally, the goal of saving the state money in taxes and benefits could justify excluding any group from marriage, but intermediate scrutiny requires that there be a good reason to exclude this particular group and not everybody else.

Notably, this decision apparently will not result in an initiative campaign this fall. According to the New York Times story, Iowa law requires constitutional amendments to be approved by two consecutive legislative sessions, and only then approved by voters. That’s good news for marriage equality, because as demonstrated by the experience of Massachusetts (which has a similar amendment procedure), the longer same-sex marriage is in place, the more public support it gains. Given a little time, straight citizens tend to recognize that their own marriages haven’t fallen apart, nor has the sky otherwise fallen, just because other loving couples are also able to recognize their commitments through marriage.

19

Solitary Confinement: Possibly Torture, Definitely Hell

Thanks very much to Danielle for her kind introduction, and to her and Dan for inviting me to participate in this blog. This is my inaugural blogging experience, and I’m (somewhat nervously) looking forward to it! Let me start with a brief comment on the story on solitary confinement by Atul Gawande in this past week’s New Yorker. Solitary confinement is practiced on quite a large scale in the United States, especially with the rise of supermax prisons over the past ten or twenty years. Gawande argues that solitary confinement essentially destroys prisoners’ brains. Humans are extremely social animals, and absent regular interaction, our minds deteriorate rapidly and to a surprising degree. Among people detained alone for extended periods, depression and misery are universal, and psychotic breaks are fairly common. Many prisoners of war describe solitary confinement as a worse experience than physical torture. Some prisoners more or less recover after return to ordinary prison or to society; others never do. A number of legal scholars have made similar arguments, and in fact the extreme psychological harm done by solitary confinement was recognized over a century ago by the Supreme Court in In re Medley, 134 U.S. 160 (1890).

Gawande’s article’s subtitle asks: “Is this torture?” Let me assume for a moment that Gawande, who pushes the torture comparison in the body of the piece as well, means that as a serious legal question. The question isn’t frivolous. The answer isn’t a categorical “yes,” but it’s probably not a categorical “no” either–it is plausible that some cases of solitary confinement in the U.S. might qualify as torture under international law. The leading formulation, in the Convention Against Torture, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted” for certain specified purposes, including punishment. Domestic and international courts have generally interpreted the severity requirement fairly strictly (though not as strictly as some recent US officials have done, to be sure), though certainly the dire picture that Gawande paints suggests that at least some instances of solitary confinement might qualify as severe mental suffering.

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