Wednesday, January 26, 2011

Some law reviews are bringing academic thought to the wider (on-line) world; Penn Law Review hosts debate on arguing for marriage

I've written my share of law review articles. I wouldn't have tenure if I hadn't. And although that is the customary venue for legal scholarship, I've been increasingly frustrated with its limitations. Who reads law reviews? Well, other law professors do. Law students writing papers and their own articles do. And. And. Hmmm. That is really it. Lawyers handling cases raising new or controversial legal issues may cite law review articles in their briefs, and judges do sometimes cite them in opinions. (I love it when a judge cites one of my articles!) But lawyers don't regularly read law reviews for intellectual sustenance, and if you're not a lawyer, well, there's an access problem. Although there are notable exceptions, law reviews don't generally post their articles on line. And even if they did, if the typical article is a dense 50-70 pages, who even has the time except other academics?

Well something is new in legal academia, and I applaud it. Some journals are posting relatively short pieces on line in novel formats. Harvard Civil Rights-Civil Liberties Law Review is holding a colloquium based on a short on-line article, Gay Rights and Lefts, by Northeastern Law Professor Libby Adler. Adler's piece will appear on February 1, and one month later the journal will post short responses (up to 1000 words) from a couple of dozen lawyers and law profs (including me). It's public intellectual discussion that can engage an audience far greater than the readership of law reviews.

Last month the online site of the University of Pennsylvania Law Review hosted a debate on "The Argument for Same-Sex Marriage." (The site is named PENNumbra, a cute name that a law student or lawyer would recognize as a play on the "penumbras" of various constitutional amendments in the Bill of Rights.) It's worth reading. Two law profs, Debroah Widiss and Nelson Tebbe, argue that lawyers should not argue that marriage is a fundamental right. It's not like childbearing or abortion, something you can do without the state. Rather it is a state-conferred status, and the state could abolish marriage for everyone, which it could not do if it was a fundamental right. (I agree completely.) Then they argue that typical equal protection arguments are unlikely to succeed in the Supreme Court, even though they have won in some lower courts. The argument they settle on is what they call an "equal access" argument -- that once the state creates marriage (like once it holds elections, or allows parties to appeal a trial court decision) it cannot selectively exclude people from the important institution it created.

The more interested read in the debate, however, is from Wake Forest law prof Shannon Gilreath, who argues against arguing for marriage. He criticizes the enormous amount of money spent litigating in California over the word "marriage" (since same-sex couples already had the rights under the term domestic partnership). He then critiques marriage from a gay liberation perspective. This isn't new, but he cites many legal scholars whose work is mostly available in law review articles, and so the benefit of this format shines through; you can get a taste of the larger critique in this user-friendly format.

Then he makes a more unusual point. He argues that the home is violent for women and the necessity of divorce to end a marriage creates a dangerous situation. He then discusses violence in same-sex relationships and argues we should not make them more difficult to exit. He also argues that the private family exemplified by marriage is less safe than a more communitarian idea of family. Here I think he misses a lot. Laws that protect against intimate violence extend almost everywhere to same-sex couples, as well as unmarried heterosexual couples. Those laws were once available only to married couples, and so it's an area of law that has actually expanded its reach to address the needs of real people in violent situations, married or not. He doesn't convince me that marriage creates more violence. And economic and emotional dependence can make it hard to leave an unmarried relationship. He did not convince me that the availability of marriage would make gay men and lesbians less safe in the home.

But I do love his last line: I fear that when the history of the Gay movement itself is written it will read more as epitaph than epilogue: Once upon a time there was a Movement... then there was Marriage.

While I'm pointing out critiques of the movement for marriage equality available on line, check out this one by Yale English/American Studies prof Michael Warner (author of The Trouble with Normal), that appeared as an essay in the California Law Review, but is, amazingly, available in full on line. It's longer than the new format of law review websites, but it's worth reading. He argues that gay rights advocates go after marriage because it symbolizes obtaining the dignity and respect of straight people. "To argue for gay marriage on these grounds," he writes, "is to despair that respect can be compelled on any other terms." I couldn't have said it better.

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