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Category: LGBT

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Of Law and Self-Loathing

“I’m a self-loathing law student,” confessed one of the students in my Critical Race Theory seminar this week. Several others immediately owned up to the same affliction. I will stipulate that self-loathing is probably not an affect we all should strive to achieve. But I was heartened anyway.

Twenty-five years ago when I began teaching law, my social-justice-minded students regularly veered from rage and tears at moral wrongs to a defiant hope. They sustained themselves and one another with a faith that the arc of the moral universe is long but it bends toward justice, as Dr. King is thought to have said. And they ultimately placed their trust in law and especially the courts.

My students were not alone. Even by the mid-1980s, many of us lawyers and law professors were still recovering from the collective daze of delight induced by the Second Reconstruction and the Warren and Burger Court eras. Of course, we were already in the throes of affirmative-action backlash and judicial retrenchment; colorblind constitutionalism was shaped before our very eyes; and even as a law student I had studied Harris v. McRae in my equal protection class and learned that the formal declaration of a constitutional right is not the same as the economic security needed to exercise it. Yet the romance, the belief that getting the courts to pronounce a legal right was a mighty blow for justice, lingered on.

Maybe it was the continued influence of the post-war “idea of America as a normative concept,” as Edward Purcell  put it in 1973: the incorporation throughout social and political debate of “terms that were analytically confused but morally coercive – patriotism, Americanism, free enterprise system, mission, and, most grossly, ‘we’re number one.’” In the culture of legal academia, this logic translated into a faith in the jurisprudence of legal process. In my little corner of the world we were all reading Democracy and Distrust and trying to locate neutral principles. The faith that procedural fairness, at least, could be achieved despite a lack of consensus about the good life reinforced a belief in the American rule of law as an unshakable bulwark of democratic fairness. That sentiment was entwined with a professional loyalty to the law: to have gone to law school was in itself a statement about one’s commitment to the law as the royal (I mean “democratic”) road to justice.

So when critical legal studies, feminist legal theory, and then critical race theory hit the academy around this time, the crits (like the Legal Realists before them) were accused of “nihilism” and shown the door. Critical legal theory was not just a disloyalty to the civil rights movement but to the rule of law itself. It was subversive, in those mid-1980s days, to pass around The Hollow Hope  and to insist, as the crits were loudly doing, that “reification” and “legitimation” were basic functions of legal reasoning. The trust that the system works – or, at least, could work if we got it right – was now being dubbed “legal liberalism” by the crits, and being skewered in massively long and ponderous articles about fundamental contradictions. But the critics could be challenged by asking them where their “positive program” was. And they could (sometimes) be silenced by demands that they leave the law altogether.

For the crit project seemed deeply and radically anti-law. We junior professors, reading their work and sometimes contributing to it, felt like outlaws (which brought with it a sense of being dangerous and cool, along with a sense of vulnerability heightened by our lack of tenure and the material consequences of being perceived as a nihilist). At the same time, interestingly, the practice of teaching was not too different for us as it was for our older Legal Process colleagues. It was all about puncturing our students’ illusions, showing them the indeterminacy of legal reasoning and teaching them how to surf on it, questioning the use of words like “fairness.” It was just that we had no shining neutral-principles machine to lift from the bottom of Pandora’s box at the end of the day.

I don’t mean to suggest that legal liberalism and faith in the rule of law as central to the American way ever died. At a conference at Santa Clara Law School last week on race and sexuality, some of the lawyers and academics gathered there bemoaned a “politics of civil rights” that has somehow placed marriage equality at the top of the LGBT agenda. The charge was familiar: too many lawyers and non-lawyers alike believe that “gay is the new black;” that the civil rights movement brought about racial equality and “now it’s our turn;” that if we prove we are just like them, we’ll all be free. The rush to assimilate to mainstream institutions and practices throws under the bus, as usual, those most vulnerable to premature death – those without the racial, economic, and bodily privileges (and/or the desire) to get married, move to the suburbs, and blend in.

What was different was that an alternative position, the “politics of dispossession” as Marc Spindelman named it, was also on the table – not as a stance that made one’s commitment to the law suspect from the get-go, but as an accepted ground for lawyering. When thinking about sexuality we might want to begin, under this politics, not with marriage but with the kids doing sex work on International Boulevard in Oakland, as Margaret Russell pointed out. And, after decades of critical theory, it was taken as a truth in that room — if an inconvenient one — that to do this would mean instantly coming up against poverty, racism, and violence, forms of suffering law is not well positioned to ameliorate.

In this way, lawyering for social justice is a contradiction. Not in the “nihilist” sense, the law-as-a-tool-of-the-ruling-class notion that those who want justice ought to give up their bar cards and go protest in the streets. (My friend Norma Alarcón once identified this romantic position as the desire to “be out in the jungle with Che.”) Rather, the politics of dispossession begins with recognizing that the law is not designed to go to root causes; that fundamental changes in the ground rules, which is what the most vulnerable need, come from organizing;  and that lawyering isn’t useless, but that it looks different if it is prison abolition you want and not a marriage license.

More abstractly, the understanding in that room was that, as Patricia Williams said to the crits in one of the founding texts of critical race theory, law is both inadequate and indispensable in the struggle for justice. Post-legal-liberalism lawyering begins here.

What’s also new is that this commitment to living in the contradiction — accepting the tension between law and justice as a place to work rather than as a source of despair — is increasingly expressed not only by battle-scarred veterans at academic conferences but by law students. The desire to make positive social change has not gone away among my students. They still hope and expect that law can be used in the service of justice. But along with a waning of faith in the courts, they express an increasingly sophisticated awareness of the limits of the law more generally. They know, already, that justice and law are not the same. The task is no longer disillusioning them, but helping them develop the skills for finding what works and what doesn’t.

Okay, so “self-loathing” is probably not the best way to say it. But this wry recognition of the imperfection of law seems to me nevertheless an improvement over the wounded attachment to law as a portal to justice that seemed to mark so many progressive law students a generation ago. As the same student said later in the conversation that day, “That’s my contradiction, and I’m sticking to it.” There’s a wisdom there that’s heartening.

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Stanford Law Review Online: Animus Thick and Thin

Stanford Law Review

The Stanford Law Review Online recently published an Essay by Nan D. Hunter entitled Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown. Professor Hunter argues that the Perry decision will have a more far-reaching impact than most commentators have suggested, both in defining the role of animus in equal protection analysis and in establishing the courts’ role in checking popular initiatives that deny rights to minorities:

The only problem with this analysis for marriage equality supporters is that, despite the principle that courts should resolve constitutional disputes on the narrowest possible grounds, the “taking away” portion of the rationale strikes some as too outcome driven and transparently invented for the goal of providing the Supreme Court with a plausible rationale for denying certiorari. From this view, the opinion’s political strength will also be its greatest doctrinal weakness.

I disagree on two counts. First, I read the opinion as being far more nuanced than it has been given credit for, and believe that its elaboration of the role of animus in judicial review is an important contribution to equal protection doctrine. Second, critics are missing a deeper point: the greatest political strength of the Perry opinion lies not in the short-term question of whether the Supreme Court will accept review, but in its contribution to the more enduring issue of how courts can balance their role of serving as an antimajoritarian check on populist retaliation against minorities while also preserving the values of popular constitutionalism.

She concludes:

[A]lthough initially the panel opinion in Perry would affect only Proposition 8, its larger contribution may be the creative way that it addresses the persistent, intractable conundrum of America’s countermajoritarian difficulty. The opinion does this in part by taking animus seriously as one of the criteria for heightened rational basis review and in part by creating a modest curb on popularly enacted state constitutional amendments. If the Ninth Circuit grants rehearing en banc, the opinion will be vacated, but one hopes that its contribution to the evolution of equal protection law will endure.

Read the full article, Animus Thick and Thin: The Broader Impact of the Ninth Circuit’s Decision in Perry v. Brown by Nan D. Hunter, at Stanford Law Review Online.

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Stanford Law Review Online: The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Yale’s William N. Eskridge Jr. entitled The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality. Eskridge provides an accessible summary of the opinion and defends the judgment against detractors who claim it went too far—or didn’t go far enough:

In the blogosphere, Judge Reinhardt’s Perry opinion has come under heavier fire from commentators favoring marriage equality than from those opposed to equality. Some gay-friendly commentators have lamented that the Ninth Circuit did not announce a general right of lesbian and gay couples to marry all over the country and have criticized the court’s narrow reasoning as “dishonest,” analytically “wobbly,” and “disingenuous.” In my view, the court got it right, as a matter of law and as a matter of constitutional politics.

Start with the role of federal courts of appeals in our rule of law system: their role is a limited one, a point these pro-gay commentators have neglected. Such courts (1) are supposed to address the particular factual context presented by the parties, (2) must follow the binding precedent of their own circuit and of the Supreme Court, and (3) ought usually to choose narrow rather than broad grounds for decision. Judge Reinhardt’s Perry opinion is exemplary along all three dimensions. . . .

Should Judge Reinhardt have gone further, to rule that lesbian and gay couples in all states enjoy a “fundamental” right to marry, resulting in strict scrutiny that would be fatal to the exclusion of such couples in the laws of the more than forty states now denying marriage equality? For two decades, I have maintained that the Constitution does assure lesbian and gay couples such a fundamental right. But I am not a court of intermediate appeal. As such a court, the Ninth Circuit panel was right, as a matter of standard legal practice, not to engage this broader argument.

He concludes:

Marriage equality is an idea whose time has come for California, as well as for New York, whose legislature recognized marriage equality last year. But has its time come everywhere in the country? I fear not. The nation’s constitutional culture is much more accepting of lesbian and gay couples today than at the turn of the millennium, but much of the country is still hostile to gay people generally and marriage equality in particular.

Does that mean the Ninth Circuit and the Supreme Court should cower behind a constitutional heckler’s veto? Of course not. But when the hecklers are the bulk of the audience, the constitutional speaker needs to tread more carefully. Courts can help put an issue on the public law agenda, and they can channel discourse into productive directions. They can also help create conditions for falsification of stereotypes and prejudice-driven arguments, such as the canard that gay marriage will undermine “traditional” marriage. But courts cannot create a national consensus on as issue about which “We the People” are not at rest. And nationally, the people are not at rest.

In the United States, as a whole, marriage equality is an idea whose time is coming. And Judge Reinhardt’s decision in Perry v. Brown advances the ball just a little, and not too much.

Read the full article, The Ninth Circuit’s Perry Decision and the Constitutional Politics of Marriage Equality by William N. Eskridge Jr., at the Stanford Law Review Online.

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Constitutional Text and the Role of Elites

Joey Fishkin’s post on Jack’s book poses a fascinating and provocative question: “Is this book really about faith in something like the project of the United States — its ideals, its promise, its commitments, its possible future redemption — rather than just the Constitution?”  Joey himself questions whether the dichotomy he draws is a false one, whether American ideals are inseparable from constitutional commitments.  Joey’s comments force us to contemplate whether the constitutional text itself is less important (perhaps not important at all) as compared to the stories of American development and identity that we tell one another.  In this post, I want to take up Joey’s questions and seriously consider how important (if at all) text is to the project of constitutional redemption.

As Joey notes, Jack has much to say about the role of constitutional text: “The text — and the grand statements of principle found in the text — play a crucial role in this constitutional culture.  The text is public.  Anyone can pick up the text, read it, and use it in argument.  Anyone can refer to the principles of due process, or equal protection, the separation of powers, federalism, freedom of expression, or freedom of religion.  A written Constitution that anyone can read and comment on encourages a culture of participation in constitutional argument and a popular sense of ownership in the Constitution[.]” (p. 236, emphasis added)  Jack goes on to argue for the democratizing role of the constitutional text.  The text, which is open and accessible, “authorizes people from all walks of life to claim the right to interpret it.” (p. 237).  Jack connects this reliance on text to his theory of framework originalism; a focus on constitutional text and principle “bridges the gap between laypersons and legal professionals.” (p. 238)

But instead of focusing on “anyone,” let’s focus on elites and situate them as key players in the process of textual meaning and translation.  I want to suggest that Jack’s argument about text as a democratizing and participatory vehicle relies on the importance of textual mediation, largely undertaken by (legal and non-legal) elites.  That is, while we may on rare occasions observe an idealized notion of laypersons reading and invoking the constitutional text, the more common way in which constitutional text is taken up and proclaimed by ordinary citizens relies on a process in which elites — government officials, social movement advocates, cause lawyers, policy elites, cultural leaders — apply constitutional principles (and their textual grounding) to laypersons’ struggles.

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Jack Balkin’s Constitutional Redemption: A Much-Needed Dose of Optimism

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin’s book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution’s promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin’s descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin’s theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues – from race to abortion to labor – and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental – to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff’s claim, it is often because that claim has already affected the culture more generally.

Balkin’s second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

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Thank you and Goodnight (and Some Thoughts on Anti-Gay Discrimination in Schools)

It has been an honor and a pleasure to be a small part of the Co-Op community these past two months. I learned a lot and had fun doing it! I’d like to thank everyone for their indulgence and comments, with special thanks to Danielle for inviting me in the first place.

For my final post, I would like to follow up on what is going on the Anoka-Hennepin School District in Minnesota.

In the mid-1990s, the District adopted a health curriculum policy prohibiting teachers from teaching that homosexuality is “normal” or a “valid lifestyle.” According to the anti-gay organization that lobbied the District to adopt that rule, “[t]he homosexual lifestyle does not reflect the community standards of District #11, nor is it regarded as a norm in society.” That policy was extended beyond the health curriculum in 2009, when the District adopted a so-called “no promo homo” rule and a neutrality policy that stated that “[t]eaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”

In a Complaint from the Southern Poverty Law Center (SPLC) representing several students, the SPLC notes that the policies act “as a gag policy that prevents school officials from complying with their legal obligations to keep safe students like Plaintiffs who are perceived as LGBT or gender non-conforming. This gag policy requires District officials to enforce anti-harassment policies in the case of anti-LGBT bullying differently from other types of bullying. Teachers have understood the [policy] as inhibiting them from aggressively responding to anti-gay harassment, inside or outside the classroom. The gag policy also prohibits school staff from countering anti-gay stereotypes or presenting basic factual information about LGBT people, even when necessary to address anti-gay hostility within the student body. For example, pursuant to District guidance, the [policy] prohibits staff from even mentioning the fact that it is the position of the American Psychological Association that being gay is not a choice— a position that is the consensus of all major accredited and professional mental health organizations. The [policy] severely limits or outright bars any discussion by school officials of issues related to LGBT people in or out of the classroom, a limitation
that is not placed on any other category of persons.”

The SPLC raises Equal Protection, Title IX and Minnesota Human Rights Act arguments. The full Complaint is available here.

There are also free speech arguments. Do you think SPLC should have emphasized the ways in which Anoka-Hennepin’s policies infringe on the free speech rights of teachers?

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Some Thoughts on The FAIR Education Act

My apologies to the Co-Op community for being incognito the previous week. There’s the wonderful medicine called Augmenten that is finally getting me well!

The quaint Sacramento Bee published an Op-Ed of mine today. It urges California Governor Jerry Brown to sign SB 48: The FAIR Education Act, that asks California school districts to find a way to include references to the contributions of gay Americans in their history or social studies curricula. I see this as an essential tool in combating anti-gay hate and bullying in schools.

Maybe it was a mistake to include my email address at the bottom of the Op-Ed (though that is the Bee’s, and most paper’s, custom) because I’ve already gotten quite a few emails using the word “Satan,” “destroying America,” “sodomy,” “rectum,” “bending over backward” and even a few veiled threats from one person who insisted on reminding me that he is a “real Christian.”

Any time someone mentions the word “gay,” there always seems to be a small, vocal and virulent segment of the population that cannot help but think of sodomy and how “gross and unnatural” they think it is. Historically, it is common for hateful societies to identify and exaggerate physical or personal features of those groups they wish to keep down. In Germany, Hitler published photographs of Jews that over-emphasized hooked noses; in the Jim Crow South, it was terribly and disturbingly common to equate African Americans with monkeys.

But that obvious and outward hate only worked because it tapped into long held, deeply rooted beliefs about Jews and African Americans. Hooked noses symbolized the Jews-as-sinister stereotype for Germans; monkeys reminded Southern whites that African Americans were less than human. Images conjured up by words like “rectum” and “bending over backward” comport with homophobic stereotypes of gay men as sex-crazed, obsessed with pleasure and incapable of love, only lust.

The only way to fight against these stereotypes is to teach reality: that gay people can love each other, that gay lives are no different than straight lives and that gay people have been positive forces in American history. So-called “real Christians” (methinks he doth protest too much!) may be unreachable, but that is because their religious leaders feed into the stereotypes and teach them. To suggest that forces of tolerance and acceptance are not allowed to teach the truth to combat these devastating stereotypes is to accept the legitimacy of hate, homophobia and discrimination.

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Same-Sex Couples and Divorce

Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”

Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.

My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.

In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.

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Be Proud, Not Frustrated

June was Gay Pride month, and it was a particularly special Pride for me, for New York and all gay people. It was great for me, of course, because I had the honor of blogging at Co-Op (and I’m doubly honored to continue into July!). It was really great for me, for New York and for many others when the Empire State legalized gay marriage hours before gays from all over the world were planning on taking to the streets anyway to celebrate community, equality and the exceptionalism of the gay culture. So, the celebration started a bit earlier.

In fact, June 2011 capped a remarkable few years for the gay rights movement. There was Iowa and Washington, DC on the marriage front. President Obama and the Democratic Congress gave us hate crime legislation and, more importantly, the repeal of the odious “Don’t Ask, Don’t Tell” ban on openly gay service in the military. And, the President did not stop there: he extended benefits to gay partners, enforced hospital visitation rights for any hospital receiving Medicaid, and in perhaps his most lasting contribution to equal rights for gay Americans, he declared that state action discriminating on the basis of sexual orientation deserved heightened scrutiny and, therefore, the Defense of Marriage Act (DOMA) was unconstitutional.

So, why are some of my gay friends so frustrated with the President?

Why do they get upset that he has not “evolve[d] already” toward support for same-sex marriage? Why do some see him “no different than the Republicans when it comes to gay rights”? Are they just demanding? Ungrateful? Impatient, petulant children?

I certainly know my share of petulant children, but I don’t think that’s it. I would like to suggest that some gays are frustrated because they don’t understand President Obama’s unique (and refreshing) form a progressivism.

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UCLA Law Review Vol. 58, Issue 5 (June 2011)

Volume 58, Issue 5 (June 2011)


Articles

Melville B. Nimmer Memorial Lecture: What Is a Copyrighted Work? Why Does It Matter? Paul Goldstein 1175
Equal Opportunity for Arbitration Hiro N. Aragaki 1189
Asymmetrical Jurisdiction Matthew I. Hall 1257


Comments

Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism Scot Rives 1303
Give Me Your Tired, Your Poor, and Your Queer: The Need and Potential for Advocacy for LGBTQ Immigrant Detainees CT Turney 1343