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Tagged: same sex marriage

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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

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What’s in a Name?

Friday’s New Jersey Superior Court decision in Garden State Equality v. Dow holding that equal protection requires the extension of marriage to same-sex couples was an important victory for marriage equality overall and for recognition of the importance of naming. The decision arises at a time when debate continues over whether the New Jersey legislature will override the gubernatorial veto of the last year’s Marriage Equality and Religious Exemption Act, which would have extended the title of marriage to same-sex couples in New Jersey.

 

Seven years ago, the New Jersey Supreme Court concluded in Lewis v. Harris that the equal protection challenge to the state’s refusal to marry same-sex couples could be separated into two distinct issues – (1) whether same-sex couples had an equal right to the rights of marriage; and (2) whether they had a right to the title “marriage.”  As to the first question, the court easily concluded that same-sex couples were entitled under equal protection principles to the benefits and privileges of marriage.  But as to the second question, the court was careful to maintain a distinction between substantive rights and naming.  In deferring to the legislature, the majority chose not to “presume that a difference in name alone is of constitutional magnitude.”

 

The question of access to the title of “marriage” has often focused on the social costs associated with being labeled something other than married.  In her stirring dissent from the court’s deferral of the naming question in Lewis v. Harris, then-Chief Justice Poritz identified the stigma and devaluation flowing from giving same-sex couples a title other than marriage.  I have written more extensively about this issue elsewhere.

 

The decision in Garden State Equality v. Dow highlights the substantive costs (apart from the social ones) of failing to use the term “marriage.”  With DOMA’s Section 3 in place prior to Windsor, committed couples in New Jersey—in marriages or civil unions—were similarly, if not equally, situated regarding substantive rights and privileges.  But with Section 3 invalidated and many federal agencies conferring federal benefits only to married same-sex couples, not couples in civil unions, New Jersey’s committed same-sex couples do not receive equal protection as promised by Lewis.  The decision underscores just how much there is in a name.

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)

In my article Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine Heterophilia I introduced the concept of law’s inherent heterophilia. One can see it as a new generation of homophobia, more politically correct perhaps, in which the goal of eradication has been substituted by the goal of assimilation.  The need to cover, which almost every LGBT individual has experienced and which has been so shrewdly identified by Kenji Yoshino in his book “Covering: The Hidden Assault on Our Civil Rights,” is a typical product of social and legal heterophilia that seeks to encourage such assimilation.  Because of its benign nature, legal heterophilia, as opposed to legal homophobia, is much harder to detect, and therefore it is much harder to fight.

How can we distinguish law’s homophobia from law’s heterophilia?  To be sure, it is not easy to draw the line between homophobia and heterophilia, and many heterophile actions can be interpreted as unconsciously homophobic.  However, generally speaking, laws that privilege predominantly heterosexual institutions, such as marriage, are heterophile in nature, while laws that restrict LGBT individuals, discriminate against them, or punish them as such, would be labeled as homophobic.  Thus, laws privileging married couples and awarding them forms of protection that unmarried couples cannot receive are heterophilic as long as LGBT individuals cannot get married, and probably as long as they do not extend those privileges to all couples, married and unmarried, gay or straight. The Mayo Clinic’s policy demanding same-sex couples to marry or else the employees’ spouses will lose their health benefits, instead of extending the benefits to all partner regardless their marital status and their sexual orientation is a product of socio-legal heterophilia.

Indeed, the very demand to marry, which is a consequence of the Windsor case, is heterophilic even when it does not involve the carrot of benefits or the stick of their denial. As a recent New York Times article demonstrates, such social requirement is becoming more and more conspicuous in the wake of the Windsor ruling. And what is fascinating, is that heterosexuals are the ones who nudge same-sex partners to marry most.

While not using the term “heterophilia” or its derivatives, Janet Halley has exposed some of the most heterophilic strands of the institution of marriage in her 2010 article Behind the Law of Marriage (I): From Status/Contract to the Marriage System.  Marriage law, however, is not only heterophilic; it also has homophobic qualities, as many scholars have rightly observed. It remains to be seen if society and the courts will be able to release themselves of all forms of prejudice and discrimination concerning marriage and marital status. Getting rid of the homophobic Section 3 of DOMA was only the first step in this direction.

Part I of this post.

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)

Hello everyone, and thanks Solangel and the other regulars for hosting me here. I thought I would begin with some thoughts on the aftermath of United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). June 26, 2013, the day in which the case was decided, will no doubt be one of those days that many will reminiscent about, ask and will be asked “where were you when the decision was published?” As someone who studied is Constitutional Law class when the 1986 Bowers v. Hardwick was still the law, the day Windsor was decided was a truly wonderful day for me. Indeed, this day marked a significant decline in legal homophobia, and we should all celebrate that. But is it the end of marriage-based discrimination?
I’m afraid that the answer to this question is “not yet.” It seems that the campaign for same-sex marriage has been almost too successful, and that the right to marry is rapidly becoming a requirement to do so. Postbulletin.com reports that the Minnesota Mayo Clinic is requiring its LGBT employees to marry their same-sex partners in order to continue their eligibility for health benefits. The previous policy was introduced in order to remedy the discrimination against LGBT employees who could not marry their partners. Now when they can do so, they must, if they wish to continue to be eligible for the benefits. There will even be a deadline for these couples to get married. What a charged idea, a deadline to get married, and one that is created by one of the partners’ employee!
On the face of it, there is nothing wrong with this change: Under this policy, unmarried heterosexual partners of employees are ineligible for health benefits. The update is necessary in order not to create a new form of discrimination, this time against unmarried heterosexual couples. But this is only one way of looking at this policy.
The updated policy which requires same-sex couples to marry in order to keep their health benefits exposes what I call law’s heterophilia, a concept which I have introduced in a recent article. Much has been written about law’s homophobia, past and present. Various forms of discrimination against LGBT individuals have been labeled “homophobic” and in most cases, justly so. But law sports an additional, more insidious prejudice—namely, heterophilia.
Homophobia works “against” LGBTs. Criminalization of sex between men or between women is homophobic. But what are we to make of legal norms that do not work directly “against” gays, but “for” heterosexuals? Such norms do not consciously discriminate against LGBT individuals, but privilege heterosexuals (not all of them, as I explain below). The underlying result is discrimination. These norms are not homophobic in the sense that unlike sodomy laws, they were not designed with the specific aim of persecuting sexual minorities.
I borrow the term “heterophilia” from psychoanalyst David Schwartz, who argued in the early 1990s that in addition to homophobia—a well-explored prejudice which is rooted in devaluation—there can be another form of prejudice against LGBT individuals which is rooted in “philia,” namely in the idealization of heterosexuality. Heterophilia, argued Schwartz, is an “unarticulated belief in a particular sexual ideology,” rather than an objection to an alternative sexual ideology. By the absence of phobia, and in many cases by actual acceptance of LGBT individuals in several respects, heterophiles “immunize their ideological commitments against articulation and scrutiny.”
Now, let’s return to the Mayo Clinic’s revised spousal health benefit policy. Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other. Marriage is the quintessential heterophile institution. This is why heterophilia can discriminate not just against LGBTs, but also against heterosexuals who refuse to get married. They too are ineligible for health benefits for their partners, if they are employed by a company who has a similar policy in place.
While the Windsor Court’s ruling is just and humane, it exists within a context, and is subject to interpretation (or misinterpretation and even abuse) within that context. One such misinterpretation is the quick evolution of an equal right to marry for LGBTs into a requirement. Critics of the campaign for same-sex marriage have warned against this consequence. But I believe that the critique was misdirected. The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.

Part II of this post.

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Dronenburg and Reasonableness

San Diego County Clerk Ernest Dronenburg filed a petition yesterday seeking to prevent California county clerks from issuing marriage licenses to same-sex couples until a set of legal issues have been clarified. A reporter from the Union-Tribune called me to discuss the filing, and I ended up being quoted for the idea that the filing was “reasonable” because of legal uncertainties, as a sort of counter-balance to an Aaron Caplan quote that the request will not not “go far.”

Both of which are, I think, correct — but in different ways. Due to the limits of the newspaper medium, a twenty-minute phone interview ended up condensed into a soundbite which — well, which may not seem reasonable. I suspect that this has to do with word limits and editors and the need for a news story with a particular narrative balance. (“I mostly agree with what the other guy said” is a boring article.) But here on blog, we can elaborate in more detail on exactly which ways the Dronenburg filing may or may not be reasonable. Read More

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The Supreme Court’s Decision in Hollingsworth v. Perry Effectively Renders Prop 8 Unconstitutional

800px-Same_Sex_Marriage-02The Supreme Court’s decision in Hollingsworth v. Perry, issued today, will have something of a domino effect on the rights of Californians:  The Supreme Court dismissed the defendants’ appeal on standing grounds, thereby reinstating a district court ruling that held Prop 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution, thereby reinstating a 2008 California Supreme Court ruling that effectively created a state constitutional right to same-sex marriage.

The Perry Court’s immediate ruling is narrow:  Prop 8′s civilian defenders do not have standing to challenge the district court’s invalidation of the law.  Any defense of the law on appeal would have to come from California officials, who declined to defend Prop 8 or appeal the district court ruling finding it unconstitutional.

The Supreme Court’s decision effectively reinstates the lower court decision by California District Judge Vaughn Walker, which “declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and ‘directing the official defendants that all persons under their control or supervision’ shall not enforce it.”   (See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal.)).

The effect of the Supreme Court’s decision in Perry is complicated by this particular twist: California officials enforced Prop 8, but declined to defend it.

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The Stanford Law Review Online: Defending DOMA in Court

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.

He concludes:

Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.

Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.

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Lewis v. Harris II — “civil union” versus “marriage”, one more time

Last month, on behalf of several same-sex couples, Lambda Legal filed a “Petition in Aid of Litigants’ Rights”  with the New Jersey Supreme Court, asking for further relief in Lewis v. Harris, 908 A.2d 196 (N.J. 2006).    The petition argues that the state’s Civil Union Law, created in 2006,  has utterly failed to create the constitutionally required equality for same-sex couples.  It requests the court to revisit the matter forthwith and order the state to recognize marriage for same-sex couples.

In 2006 in Lewis v.  Harris, the court held 7 – 0  that New Jersey’s constitution as a matter of equal protection (although not as a fundamental right) required the state to provide all the rights and benefits of marriage to committed same-sex couples, and also some kind of full legal recognition — the already-existing “domestic partnership” regime, with its limited benefits and different structure, was constitutionally insufficient.  But the court split 4 – 3 on whether to require the legislature to include same-sex couples within the legal definition of marriage, or to permit the legislature in its discretion instead to create a new legal institution for same-sex couples.  The legislature (very quickly) chose the latter course, enacting New Jersey’s Civil Union Law.

Three years later, the March 2010 pleading challenges that law as constitutionally inadequate.  It argues that the separate institution of civil union does not convey to same-sex couples and their families the important though intangible status of marriage, and that the separate-but-equal approach stigmatizes them in an ongoing way; that same-sex couples and their families must expend considerable effort and suffer considerable embarrassment claiming the equal rights that “civil union” is supposed to provide; and that in daily encounters, failures of others to recognize “civil union”, whether inadvertent or deliberate and feigned, regularly result in not being accorded rights and benefits equivalent to those of different-sex married couples, the goal that civil union is required to achieve.

Read More

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Prop 8 ruling to come down on Tuesday

From the court’s own website:

The California Supreme Court has announced that it will issue an opinion in three cases challenging the constitutionality of Proposition 8 at 10 a.m. on Tuesday, May 26, 2009.

I’ve previously blogged some analysis of the case. Like most other observers, I expect that the court will reject both the revision/amendment challenge and the fundamental rights challenge, but will not retroactively nullify the 18,000 marriages that took place before November. That would be, in effect, a partial victory for both sides.

I guess we’ll find out one way or another this Tuesday.