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Category: LGBT

1

What Makes a Stranger Not So Strange

Most of the literature on trust among strangers comes from game theorists. Scholars perform simulations of so-called “trust games” to suggest that “impersonal trust” can develop under this or that circumstance. This literature is voluminous (the previous link is just one of many hits from a JSTOR search). The mere fact that trust among repeat actors can be seen in repeated evolutionary games should, at the very least, complicate a legal doctrine that necessarily extinguishes privacy upon disclosures. But you don’t have to understand (or agree) with game theorists to see the problem with such a bright line rule.

Over the last year, I observed different types of support group meetings, including Alcoholics Anonymous, Narcotics Anonymous, and an HIV-positive support group. I interviewed several members, though many members declined to be interviewed, as I expected. These support groups thrive on privacy and anonymity. The very characteristic that made me want to study them was the very thing that would make it hard: members of such groups tend to know everything about a specific area of each other’s lives (their addiction), but often know precious little about a participant’s life and identity outside of what brought him to the group in the first place. In many cases, outside of the sponsor-recovering relationship, even last names remain unknown. And yet they share a secret that, unfortunately, retains a significant stigma in greater society.

This knowledge asymmetry is not always the case, I must admit. But for now, let’s accept the scenario: Participants are veritable strangers, except they know this one big secret about each other. This was in fact the story for most of the people I interviewed. And although this type of ethnography must always be a dubious source for grand conclusions about wide populations, we can still ask: Why do recovering addicts share their stigmatizing secret with strangers?

My research suggests it is because they all share the same stigmatizing secret. It is not simply that everyone shares the same secret or the same identity. People who are all Libras or all white males or all like Maroon5 do not necessarily feel a comfort level with those who were born at the same time, look the way they do, and listen to the same music, respectively. Rather, the shibboleth of a willingness to open up among strangers in this context is that everyone shares a stigmatizing identity. They trust each other not because they know them but because they know what they’ve been through in the greater world. And this is entirely reasonable.

I think this trust exists in other areas of life and not just in the unique support group environment. If it does, if trust develops among individuals who share a stigmatizing identity, then trust among so-called strangers can exist such that individuals would not be assuming the risk of further disclosure of a secret revealed to such a stranger.

I have designed a study to test this, using accepting/declining “friend” requests from strangers as a proxy. It is an imperfect proxy, but trust is hard to measure. But if we can control for other factors and see that friend requests from strangers are accepted more frequently by individuals who share a defining, stigmatizing characteristic — sexual minority status, is just one example — then we may have found a social determinant of trust among strangers.

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Pro-Marriage Deregulation of Conjugal Unions and Marriage Equality: Two Sides of the Same Coin

I am delighted to be guest-blogging for Concurring Opinions this month. It is an honor to be part of this community!  Throughout February, I will be sharing my thoughts on how certain narratives are used in the Law to subjugate various groups based mainly on their gender and sexual identities, and how, in turn, such groups use or can use the law in their pursuit toward equality. My primary focus will be on Family Law, although in some instances I will explore its intersection with evidentiary and criminal law issues as well as with legal theory.

Without further introductions, I would like to begin discussing marriage equality, an issue that seems to intensify every day as courts and legislatures take action on the matter.  Throughout the history of the United States, marriage has been a divisive subject. States have used its regulation to sustain patriarchal, racial, religious and heteronormative compliance. At every proposed change to its structure (from the role/rights of a particular spouse to who is actually eligible to reap the legal privileges of marriage), different constituencies have reacted strongly. For example, let’s think back on the reactions to challenges to anti-miscegenation statutes, reforms to treat women as chattel, and marital rape. Undoubtedly, the controversy has always stemmed from the fixation of our legal system on using marriage as a proxy to grant rights and privileges, and, most importantly, as a mechanism to segregate and stratify citizens.

The preferred strategy to challenge this caste system has been to fight for inclusion under the rubric of a conjugal union. However, we should question whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or just a quick fix that serves some and leaves others behind; or even worse, a strategy that would create such a backlash that would leave a large group of people vulnerable.

The recent gay-marriage controversy in Oklahoma epitomizes this disjunction. On January 14, a federal judge ruled that Oklahoma’s ban on gay marriage is unconstitutional.  A couple of days later, Republican lawmaker Mike Turner announced that his party would look into the possibility of abolishing marriage as a way to circumvent the Court’s decision and safeguard the “traditional” notion of marriage.

Proposals to disengage the state from the business of regulating marriage are not new. In fact, I have been one of its most fervent proponents. Yet, there are many reasons for believing in marriage deregulation. I do, because I firmly maintain that true deregulation would be the appropriate solution for attaining a more egalitarian society, as it would result in what Professors Alice Ristroph and Melissa Murray have denominated familial disestablishment (the state recognizing the existence of diverse family arrangements and abstaining from favoring one type of family over others).

Other proponents, like Rep. Turner, advocate deregulating marriage on a “pro-marriage” basis. The ultimate goal of these proposals is to preserve the institution for the heterosexual couple. Turner does not wish to deny or take away from heterosexual couples the privileges that they have been enjoying for so many centuries.  Rather, he seeks to preserve the label of “spouse” as one exclusive to heterosexual couples.

What I suspect Turner has in mind is a scheme that does not truly disengage the State from regulating marriage, but that would regulate marriage indirectly through the regulation of the family. Abolishing marriage requires amending a considerable amount of statutes and regulations. For instance, in the federal system alone there are more than a 1,000 laws that use marriage as a proxy in one way or another to grant privileges/rights or impose obligations upon the spouses. If you are not willing to give up those legal benefits but do not wish to have the State granting marriage licenses, there are basically two ways in which it can be done: 1. replacing the marriage proxy with new proxies that resemble the heterosexual couple; or 2. granting benefits to marriages officiated by a particular religious or civil body other than the State.

In any case, that system would not guarantee that gay couples would be denied access to the same benefits that heterosexual couples currently do. If the second option is chosen, gay couples would only have to find a religious or civil body that would celebrate their marriage. On the other hand, if the first option is the preferred one, gay couples would still have access to “marital benefits”.

Even though courts, for the most part, have been avoiding the question of whether gays should be a protected class, they have found that under the rational basis test, treating gays and heterosexuals differently is unconstitutional as it does not further any legitimate governmental  interest. Therefore, those new proxies cannot be based on sexuality. They could, however, be based on having kids and being in a committed long-term relationship.

A lot of gay couples fit this bill.  Thus, the State would not be able to deny them benefits under that scheme. Yet, that would mean that gay and straight couples without children would not be able to enjoy those privileges.  At the same time, it could disincentive some gay couples from marrying since they might not be able to enjoy the traditional benefits of marriage because they do not want children or simply cannot afford them, or because the added social value of being recognized by the State as a “couple” would be completely lost.

A proposal like this would constitutionally leave vulnerable more people than our current scheme. Moreover, this type of reaction unmasks what is really behind the regulation of marriage: the fact that we still adhere to an unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children. The law is a mere tool to channel people into this euroheteropatriarchal behavior.

A perfect example of this channeling function of the law is how the queer movement changed its narrative from embracing diversity and celebrating queerness to the commonplace slogan of we are just like you. This strategy has been highly criticized within the queer community for prioritizing marriage equality over other pressing issues, for advancing an agenda that only benefits a small group of the community (the one that complies with societal norms except for their sexuality), and for channeling people into a heterosexual model of living and experiencing romantic-sexual relationships. Furthermore, it has been condemned inside and outside the queer community for not advocating for legal recognition and access to government support programs for a wide range of relationships, households and families regardless of kinship, conjugal status or citizenship, and for failing to advocate true separation of church and state in matters including regulation and recognition of relationships, households, families, sexual lives and gender choices. Then again, even under the “marriage equality” agenda a lot of people are left vulnerable. Even worse, they are invisibilized.

The only way to truly achieve a more egalitarian society is a complete obliteration of the marital institution. Doing so will force us to re-examine all the laws that make reference to marriage and scrutinize the real purposes for which the laws were supposedly enacted. Furthermore, it would require us to make sure that such purposes are finally followed by granting protections to all types of families/households/relationships. Only then would we be able to recognize the plurality within our society and allow people to live their romantic-sexual lives without the fear of being subjected to a regulatory scheme that ostracizes them or channels them into something that they are not based on inane beliefs about human nature.

0

Why Some Risk Sending Intimate Pictures to “Strangers” and What It Says About Privacy

It is, as always, an honor and a pleasure to speak with the Co-Op community. Thank you to Danielle for inviting me back and thank yous all around for inviting me onto your desks, into your laps, or into your hands.

My name is Ari and I teach at New York Law School. In fact, I am honored to have been appointed Associate Professor of Law and Director of the Institute for Information Law and Policy this year at NYLS, an appointment about which I am super excited and will begin this summer. I am also finishing my doctoral dissertation in sociology at Columbia University. My scholarship focuses on the law and policy of Internet social life, and I am particularly focused on online privacy, the injustices and inequalities in unregulated online social spaces, and the digital implications for our cultural creations.

Today, and for most of this month, I want to talk a little bit about the relationship between strangers, intimacy, and privacy.

Over the last 2 years, I have conducted quantitative surveys and qualitative interviews with almost 1,000 users of any of the several gay-oriented geolocation platforms, the most famous of which is “Grindr.” These apps are described (or, derided, if you prefer) as “hook up apps,” or tools that allow gay men to meet each other for sex. That does happen. But the apps also allow members of a tightly identified and discriminated group to meet each other when they move to a knew town and don’t know anyone, to make friends, and to fall in love. Grindr, my survey respondents report, has created more than its fair share of long term relationships and, in equality states, marriages.

But Grindr and its cousins are, at least in part, about sex, which is why the app is one good place to study the prevalence of sharing intimate photographs and the sharers’ rationales. My sample is a random sample of a single population: gay men. Ages range from 18 to 59 (I declined to include anyone who self-reported as underage); locations span the globe. My online survey asked gay men who have used the app for more than one week at any time in the previous 2 years. This allowed me to focus on actual users rather than those just curious. Approximately 68 % of active users reported having sent an intimate picture of themselves to someone they were chatting with. I believe the real number is much higher. Although some of those users anonymized their initial photo, i.e., cropped out their head or something similar, nearly 89 % of users who admitted sending intimates photos to a “stranger” they met online also admitted to ultimately sending an identifiable photo, as well. And, yet, not one respondent reported being victimized, to their knowledge, by recipient misuse of an intimate photograph. Indeed, only a small percentage (1.9) reported being concerned about it or letting it enter into their decision about whether to send the photo in the first place.

I put the word “stranger” in quotes because I contend that the recipients are not really strangers as we traditionally understand the term. And this matters: You can’t share something with a stranger and expect it to remain private. Some people argue you can’t even do that with a close friend: you assume the risk of dissemination when you tell anyone anything, some say. But, at least, the risk is so much higher with strangers such that it is difficult for some to imagine a viable expectation of privacy argument when you chose to share intimate information with a stranger. I disagree. Sharing something with a “stranger” need not always extinguish your expectation of privacy and your right to sue under an applicable privacy tort if the intimate information is shared further.

A sociologist would say that a “stranger” is a person that is unknown or with whom you are not acquainted. The law accepts this definition in at least some respects: sometimes we say that individuals are “strangers in the eyes of the law,” like a legally married same-sex couple when they travel from New Jersey to Mississippi. I argue that the person on the other end of a Grindr chat is not necessarily a stranger because nonverbal social cues of trustworthiness, which can be seen anywhere, are heightened by the social group affinity of an all-gay male environment.

Over the next few weeks, I will tease out the rest of this argument: that trust, and, therefore, expectations of privacy, can exist among strangers. Admittedly, I’m still working it out and I would be grateful for any and all comments in future posts.

3

Good News for Gene Schaerr

AnillosAs reported by outlets including Above the Law, well-known litigator Gene Schaerr is leaving his law firm for a new post at the State of Utah. His departure e-mail describes his new role as “defending the constitutionality of traditional marriage.”

This certainly seems like a worthwhile endeavor. It would be terrible if male-female marriage (which is often described as “traditional marriage”) were found unconstitutional, barring straight folks from marrying.

I have good news, though. A careful perusal of the Kitchen v. Herbert opinion reveals that male-female marriage remains completely constitutional in Utah. In fact, based on anecdotal reports, male-female marriages are still taking place in Utah, even after Judge Shelby’s court ruling, and apparently without triggering any constitutional crisis.

It looks like traditional marriage is still constitutional in Utah. And since that’s the case, I guess we can all go home now.

(Image: Wikicommons.)

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Gay Polygamy in Utah!

mUX_twETB9XdG_75sgCSB3ABy now you’ve heard the news. A federal judge in Utah just ruled that the state’s ban on same-sex marriage was unconstitutional. This follow on last week’s ruling, from a different judge, that portions of Utah’s polygamy statute were also unconstitutional.

What does it mean? Obviously, it means the advent of gay polygamy!! It won’t stop until everyone is married to everyone else, in one giant gay-polygamous-mega-wedding. Let the festivities begin!

Okay, maybe not. Let’s go through the rulings, piece by piece, to see what they say, and what their effects may be. Read More

21

Photographic License to Discriminate?

The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.

800px-Photographer

The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.

New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.

Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.

While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.

Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.

If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

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New Jersey Marriage Equality Part II: When Lewis Met Windsor

United States v. Windsor, – U.S. –, 133 S.Ct. 2675 (2013), invalidated the federal Defense of Marriage Act (DOMA) on somewhat murky constitutional grounds. It also provided the catalyst for this month’s move to marriage equality under state constitutional law in New Jersey. But it did so in a most curious way.

In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), a unanimous New Jersey Supreme Court had held that same-sex couples could not be denied the equal rights and benefits guaranteed by the New Jersey constitution. However, a four-person majority in Lewis demurred as to whether the state had to allow same-sex couples to marry, allowing the legislature instead to choose to create a new status that would provide the same rights and benefits as marriage, but with a different name. In short order the legislature enacted a Civil Union Act, which became effective in 2007.

From the outset, it was clear to marriage equality advocates that that civil union would not and could not convey the equal rights and benefits that Lewis v. Harris mandated. The New Jersey Civil Union Review Commission held hearings and made extensive findings to that effect, unanimously. But how to persuade either the courts or the legislature to make the move all the way to marriage equality? Both legislative and judicial mechanisms were deployed. As to litigation, there was an initial attempt in 2010 to return the matter directly to the New Jersey Supreme Court, by way of a motion in aid of litigant’s rights filed in Lewis v. Harris. It failed because the court determined, on a 3-3 vote, that an evidentiary record was necessary. 202 N.J. 340 (2010). It is this evidentiary trial process that Windsor short-circuited. Read More

0

New Jersey Crosses the Finish Line to Marriage Equality – Maybe

Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.

It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem. Read More

0

Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

Read More

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Putin Gays on the Agenda

When I hear about American supporters the new Russian homophobic legislation (or, for that matter, about President Putin and his aides who initiated such crazy legislation, which prohibits, among other things, even expressing tolerance towards LGBTs), I can’t help but recall a New York Time article from last year titled Homophobic? Maybe You’re Gay, which claimed that there is “empirical evidence of a connection between homophobia and suppressed same-sex desire.”