Posner's support for same-sex couples does not excuse his hostility to single parents...We should call him on his misogyny and racism

The Seventh Circuit moved mighty quickly when it ruled in the same-sex marriages cases last month. A lightning speed eight days after oral argument, the unanimous three-judge panel handed down its ruling in Wolf v. Walker (Wisconsin) and Baskin v. Bogan (Indiana).  Conventional wisdom has it that Judge Posner wrote the opinion in advance.  Numerous commentators lauded Posner's "evolution" on same-sex marriage. When the Supreme Court denied cert in these two cases earlier this month, it left every bit of the opinion standing.

I have been shocked by the virtual silence among marriage equality supporters concerning some of the nefarious reasoning in Posner's opinion.  Now I will admit that Posner goes to lengths to expose the faulty reasoning behind the defense of same-sex marriage bans that opponents proffer nowadays. The argument goes something like this: Limiting marriages to couples who look like they could procreate (or in the case of the elderly, set good examples for younger couples by looking like what those couples will one day look like) encourages marriage for those who procreate accidentally, and those are the couples who need the benefits of marriage to entice them into this most desirable family form.  (Yes, I am being tongue-in-cheek here). Allowing couples to marry who clearly cannot procreate accidentally makes it seem as though there is no connection between marriage and procreation, and this will foster an environment in which fewer heterosexual couples will marry for the sake of the children they might produce.  The state is trying to reduce accidental births outside of marriage, and since same-sex couples can't have such accidental births, there is no need to give them the state conferred benefits of marriage.

There is so much wrong with the reasoning above, and I did get a smile out of Posner's sarcastic response to the state rewarding heterosexual couples who behave badly (irresponsibly creating children) while punishing same-sex couples whose relationships do not result in irresponsible procreation. "Go figure."  That's how he put it.  And had he stopped there all would have been well. (I did also like that he pointed out that the rate of nonmarital births had increased, not decreased, since Indiana enacted its ban on same-sex marriage. It does show how preposterous is the cause and effect nature of the claim made by opponents of marriage equality).

But he didn't. Here is what he said:  Accidental pregnancies produce unwanted children; unwanted children are placed for adoption, and if not adopted wind up in foster care; unwanted children are a major problem for society.  Already I knew I wasn't going to like this.  Accidental pregnancies produce some children who are placed for adoption and many who are not.  "Unwanted" is a loaded term that hides the lived reality of why some women decide to place children for adoption, including the lack of social and financial support for mothers and the stigmatized nature of the paltry sums the state provides poor mothers.  Plus, accidental pregnancy does not equate automatically with unwanted children. (At oral argument, Posner asked the lawyer for Indiana if it wasn't true that children of accidental pregnancies are placed for adoption.  He said it as though that was the norm.  It isn't. I didn't like where he was going, and the opinion was even worse than I imagined.) Plus, healthy children who are placed for adoption at birth are adopted.  They don't wind up in long-term foster care because there is no shortage of parents who want to adopt them.  Some children do wind up in foster care for a long time and are not adopted.  But anyone tackling that problem should be looking first at the lack of support for the families of those children -- well-paying jobs with family-friendly leave policies, educational opportunity, affordable housing, substance abuse treatment.  And they should start by reading Dorothy Roberts's brilliant book, Shattered Bonds, to understand the role racism plays in our foster care crisis. Believe me, that was the farthest thing from Posner's mind....

After positing unmarried mothers as creating the problem, Posner's solution turned dark, and I wish it had outraged more LGBT rights commentators (or any).   Here is how he put it: 'Accidental pregnancies are the major source of unwanted children, and unwanted children are a major problem for society, which is doubtless the reason homosexuals are permitted to adopt in most states—including Indiana and Wisconsin."

So single mothers create the problem,....and same-sex couples are the solution!  It got worse. Quoting data from Gary Gates of the Williams Institute, the best source of data in the country on all things LGBT, Posner wrote that same-sex couples (well, Posner said homosexual, but I won't go there...) were five times as likely as heterosexual couples to be raising an adopted child in Indiana and, throughout the country, were more likely to adopt children from foster care.  So, tying all this back to the issue at hand -- denial of access to marriage for same-sex couples,  Posner concluded, "Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters."

If I were to propose improved prospects for "unintended children," it would be with implementing policies that value all children, and the families they come from.  There is much more in Posner's opinion that shows his contempt for women who bear children without marrying and his strong preference for marriage over nonmarital relationships  (admittedly, and sadly, some LGBT supporters share this view).  And he even indicated that fewer pregnant women will have abortions if they know that married same-sex couples are able to adopt their children. (I did not make this up.)

Should we care about the reasoning Posner used to reach his decision?  Many would say no, that ending the marriage ban is all that matters.  But this reasoning goes to who we are and whose causes we link to our own.  I have written repeatedly about how much I detest the distancing of same-sex couples from single mothers, the repeated assertions that our children will grow up better than theirs.  Posner's reasoning belongs in that category.  Even for those who appreciate the outcome in this case, I wish everyone called the reasoning what it is -- misogynist, racist, divisive, and disrespectful (for starters).  And with no review by the US Supreme Court, it stands forever as the final word in the 7th Circuit.

Regnerus testifies and is cross examined...and the University of Texas Department of Sociology issues disclaimer

THIS I find unusual.  The Sociology Department of the University of Texas has issued a statement that the testimony of Mark Regnerus in the Michigan second-parent adoption/same-sex marriage case does not reflect the views of that Department or of the American Sociological Association.  I can't remember ever seeing anything like that!

As I wrote about last week, the best place to follow the trial is the blog of Michigan attorney Jane Bassett, but I also recommend this Twitter feed from Trea Baldas, which provides short real time updates.  Maybe others are not as transfixed as I am, but what this court decides about Regnerus's testimony is going to have a huge impact on LGBT family litigation going forward.

To me, by his own admission, he is not saying it is worse for children to stay in foster care than to be adopted by a lesbian or gay parent.  He is not saying it is worse for a child to be adopted by a same-sex couple than by a single lesbian or gay parent.  He is not saying that blocking same-sex marriage will keep lesbians and gay men from raising children.  I just cannot see how his testimony helps the state.  He is certainly saying that children do best with their married biological parents.  He doesn't like married heterosexuals using donor eggs or sperm, but he would not prohibit it.  Nor would he categorically prohibit all sorts of other people whose children have so-called less desirable outcomes (e.g., people with less money or education) from adopting children or getting married.

As a legal matter, the significance of Regnerus's testimony depends to some degree on what level of "scrutiny," in Equal Protection terms, the court applies to the state's bans on second-parent adoption and same-sex marriage.  Under the most basic form of rational basis review, the state's argument about what the bans accomplish doesn't have to be very good; it just can't be irrational.  A decade ago, a federal appeals court found that Florida's ban on gay adoption wasn't irrational, but that ban is gone, thanks to a more recent state court ruling finding it irrational indeed.  And it is going to be hard for the state to argue going forward that the US Supreme Court's ruling in Windsor last summer leaves sexual orientation classifications under the barest form of rational basis review.

If you want to stay tuned, just check in a few times a day with the websites above.  And thanks to the writers for making it possible for the rest of us to get these details.

Why the trial in Michigan Federal Court really matters....and how to follow it closely

I wrote last fall about DeBoer v. Snyder, and the trial in the case is upon us.  This case began as a challenge to Michigan's refusal to grant second-parent adoptions, and it has, thanks to a federal court judge who all but insisted, turned into a challenge to Michigan's ban on same-sex marriage.  I criticized the conflation of adoption and marriage in my earlier posts and won't repeat them here.  But the trial began yesterday, and it is time to sit up and take notice.

I suspect many people will see the Michigan case as just one in a string of cases, especially with so many federal court judges striking down same-sex marriage bans.  (A Texas judge did so just today).  But there is a big difference.  The Michigan judge ordered a trial, a factfinding process after which he will rule.  The only other recent case that went to a full trial was the "Prop 8" Perry case in California.  But DeBoer is significantly different from Perry.  The defenders of Prop 8 offered no meaningful expert testimony in support of the ban on same-sex marriage. (They called to the stand David Blankenhorn, who tried and failed, under withering cross examination by David Boies.)

The state of Michigan is going a different route.  It is trying to get the court to rule that children do best when raised by their married, heterosexual, biological parents, and that therefore the state is justified in prohibiting second-parent adoption and same-sex marriage. So far, without holding trials, the recent court rulings against same-sex marriage bans have all found arguments like that in DeBoer unfounded. But DeBoer will involve witnesses and factfinding based on their testimony.

Michigan is calling Mark Regnerus, whose study supposedly showing that children raised by same-sex couples do worse than children of married heterosexuals, was the subject of immense professional criticism two years ago.  Regnerus counted those with a parent who had any same-sex sexual relationship, however fleeting, as raised by gay or lesbian parents, even though very few of the children lived with a parent and a parent's partner for any length of time.  None of those studied had been raised from birth by a same-sex couple.  Look for ACLU attorney Leslie Cooper to do a stunning cross-examination of Regnerus.  (For a preview, check out the criticism of Regnerus in this Lambda Legal brief in an earlier case). Adoption expert David Brodzinsky, a witness for the plaintiffs, has already critiqued the Regnerus study and offered his own opinion that denying parentage to both adoptive parents (as well as marriage) is bad for the children.  Because the children of the plaintiffs were all adopted from the state foster care system, his testimony is especially valuable in this case.

Anyone interested in following this trial has an amazing resource -- the live blogging of attorney Jane Bassett, who practices LGBT family law and elder law in Michigan.  She covered yesterday's full day of trial in 11 updates.  Today was a short day, and she provided 2 updates.  She'll be back at it tomorrow, when the plaintiffs offer LGBT demographer extraordinaire, Gary Gates, as their next witness.  Because Jane Bassett understands the law and the issues in this case so well, I trust her more than the newspaper sources covering the trial.

If the judge insists on striking down Michigan's marriage ban, I sure hope he separately strikes down the ban on second-parent adoption.  I know the plaintiffs are trying to get him to do that, and I commend the plaintiffs, who have always sought dual parentage, not marriage, as their main goal.  I'll be following Jane Bassett's blog every day until the trial ends.

Michigan District Court judge will require the state to defend its marriage ban at trial. But, wait...this case should be about adoption

In a post last March about numerous second-parent adoption cases, I criticized a Michigan federal court case, DeBoer v. Snyder, for its conflation of the right to marry and the right to second-parent adoption.  The couple, April DeBoer and Jayne Rowse, challenged their inability to complete second-parent adoptions in Michigan of the children they are raising together.  They filed it as a constitutional case in federal court.  The case brought national attention when the trial judge told the couple and their lawyers at a court hearing that their problem was really their inability to marry (and thereby gain access to stepparent adoption) and suggested they amend their complaint to challenge Michigan's marriage ban.  The couple did so, and the state filed a motion to dismiss their amended complaint.  Today the judge refused to dismiss the complaint and has required the state to go to trial on February 25th to present its reasons for the marriage ban.  The judge acknowledged the case will be about expert testimony on each side.  That was also largely the case in the Perry trial challenging California's marriage ban instituted by Prop 8.

In an interview with Michigan Public Radio, DeBoer was clear that the couple wasn't looking to get married, but they were looking to protect their rights and their children's rights.  Rowse reported that many people have told them how surprised they were that the couldn't both adopt their children.  She has also made clear that their primary goal is second-parent adoption of their children.   But the couple's focus on their children has by now been overshadowed by the marriage equality claim.  The problem with this shift in focus is straightforward:  two people should not need to be married to raise their children as two legal parents.  An early second-parent adoption victory, in New York, ruled that both plaintiff couples -- one same-sex and one different-sex -- were permitted to become adoptive parents of the children they were raising together.  Lambda Legal represented both couples.

All children will be disserved if this becomes a case only about marriage.  First, no couple should have to marry to both be the parents of their children.  Then, even if this couple is fine about getting married, what about all the Michigan children whose parents have already split up?  Although I write often in this blog about situations where the one legal parent is trying to remove the other parent from the child's life, lots of those couples do continue to co-parent.  Their children also deserve legal recognition of both parents.  Decades ago a New Hampshire court ruled that  a no-longer-married heterosexual couple could not both adopt the child they had raised as their foster child.  There is no good reason to prohibit all such adoptions; rather they should be judged based on the child's best interests, just as they are when a couple is together.  The ability of two unmarried adults to adopt a child together has also been used in some states to allow a child to have two parents who aren't and never were romantic partners.  (There was an early decision from Maryland, for example, allowing twin sisters who lived together to adopt jointly).

All of this is lost when a case about a child's right to a legal relationship with the two parents who are raising her is conflated with a couple's right to marry.  I am sorry to see the DeBoer case veer off in that direction.

ALL children are as good as all other children...someone tell THAT to Justice Kennedy and the Prop 8 plaintiffs

On the steps of the US Supreme Court today, a plaintiff in the Prop 8 case said that the message from the Supreme Court to same-sex couples is that "your children are just as good as other children."  I am looking for affirmation that all children are equal, no matter what their family structure.  Justice Kennedy writes that the federal differentiation between same- and different-sex couples "humiliates tens of thousands of children now being raised by same-sex couples.  The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

What about the children of unmarried couples? single mothers? being raised by extended family members?  They also deserve not to be demeaned and humiliated by their family structure.  I can't rejoice until that's true as a legal and a cultural matter.  I hope considering the well-being of children of same-sex couples who marry will be one step in that direction.  It is certainly not an end in and of itself.

I released the following statement today to media outlets that requested my reaction to today's opinions.  Of course I speak for no one but myself:

I am so dismayed by the dismantling of the voting rights act yesterday.  Race is still a central component of who our society values or doesn’t value.  The DOMA opinion means married same-sex couples will be treated as married under federal law.  But the demographics of who marries now is highly skewed by race and class.  There is every reason to assume those demographics will hold for lesbians and gay men as well.  So we will have same-sex couples who don’t marry, just as we have different-sex couples who don’t marry.  And we will have lots of legal consequences linked exclusively to marriage that ignore the vast number of family relationships in this country that are not based on marriage.  I am very happy to see Kennedy’s opinion recognize the dignity that same-sex relationships must be afforded and also recognize how demeaning of gay people it was for Congress to pass DOMA.  But Kennedy refers to DOMA has humiliating the children of same-sex couples. NO children should feel humiliated by their family structure.  Children of unmarried parents should not feel humiliated.  All children are equal and the families that raise them deserve equal respect.

More from me later  about the Supreme Court rulings.

Iowa Supreme Court rules birth mother's female spouse must be listed on child's birth certificate

I've written extensively about the Gartner case, in which Lambda Legal represented a married lesbian couple challenging the refusal of the Iowa Department of Health to place the name of the nonbiological mother, Melissa Gartner, on the child's birth certificate.  Today the Iowa Supreme Court ruled that the Department was wrong.  Mackenzie Gartner gets a birth certificate naming both her moms.  This is good news.

So why am I not celebrating?  In other posts I have criticized this litigation because it helps only children whose moms are married.  I stand by that criticism.  The court's opinion makes me more concerned than ever.  The court says "we recognize the strong stigma accompanying illegitimacy."  Look, everyone, and I mean this, is this what we want for our community? That the children of couples who don't marry be considered illegitimate?  Forty-five years after the US Supreme Court started this country down the path of eliminating illegitimacy as a legal category for children of heterosexuals, it is inexcusable to institute such categorization for our children.

But there's more to my concern than that. The court ruled that the statute requiring a husband's name to appear on a birth certificate should not be read in a gender neutral manner, that the legislature unambiguously intended to differentiate between the two sexes in its parentage presumption.  Many states have gender specific language in its parentage laws. Those must be read in gender neutral ways.  Here is just one example.  Every state has a statute that paternity judgments must be given Full Faith and Credit by other states.  Every state.  Those statutes must be interpreted to apply to all parentage judgments, for both mothers and fathers.  The reasoning of the Iowa court, whether they understood what they were doing or not, is going to help anyone arguing that the statute should apply only to fathers.  That is the wrong result, and it will hurt many, many of our families.

In this part of the opinion the court also showed that it does not understand parentage law across the country.  In a very long footnote, the court identified three categories of parentage laws, and got many of them just plain wrong.  Here are the two most egregious mistakes.  The court thinks a state using the term "natural father" means to apply the parentage presumption only to genetic parents, when there is case law in many states, including those listed, saying that "natural" is not limited to biological.  And the court names many states as listing the presumption in gender specific terms (father, mother, man, woman, husband, wife) with apparently no awareness that many of those states, in their parentage statutes, say that the rules for determining paternity should be applied to determine maternity. In other words, anyone who thinks they know parentage law after reading this footnote will be misled and may even fail to make winning arguments in future litigation.

I actually feel great outrage at this footnote.  It lists as "traditionally gendered" a number of states whose parentage laws have already been applied to find two lesbians -- not married to each other -- the parents of their child.  Someone (a recent law grad clerking for one of the justices, I'm guessing) put a lot of time into this footnote, and it's wrong enough, and misleading enough, that it just shouldn't be here.

So now to the victory. The court found that the gender specific statute was unconstitutional on equal protection grounds, applying the heightened scrutiny standard for sexual orientation mandated in Varnum. First it noted that when a heterosexual married couple uses donor semen the husband's name goes on the birth certificate.  It found a married lesbian couple in this situation to be similarly situated, so not giving the birth certificate was a classification based on sexual orientation. Then it identified the purpose of the birth certificate "identifying a child as part of [a] family and providing a basis for verifying the birth of a child."  The state had argued that its interest was in accurate birth certificates, but because it names a husband when there was been donor insemination, that didn't fly. Here I'm with the court all the way.  As I've said elsewhere, there will always be more children born to heterosexual couples who are not the genetic child of the husband than there will be children born to married lesbian couples.

There's good language in the opinion that naming the second mom "establishes fundamental legal rights from the moment of birth." This leaves no doubt that she is a parent under state law (not just a person with a name on a birth certificate).  Having fought so hard for this, however, it's going to be hard to convince lesbian couples in Iowa that they must do second-parent adoptions.  But for portability to other states it's something they must do, just as our leading advocacy and litigation groups must push for approaches that protect parentage regardless of a couple's marital status.  Many states have done this, including states without same-sex marriage.  I have written about them in these posts over the years, so I won't try to summarize here.  But that's what our families need and deserve.

The limits of marriage equality

The ink isn't dry on the coverage of this week's Supreme Court arguments (okay-there isn't so much ink anymore as digital transmission, but it's a metaphor that still appeals to me).  Still, I'm not willing to leave for long the critiques of the fight for access to marriage that I, and others, have been making for several years.  Here is a particularly concise and insightful one from Scot Nakagawa.  Some of his critical points:  marriage is such a powerful draw because it excludes, so we should think hard about those who are excluded.  Monogamous same-sex couples are the new "model minority" so they are in; still out are a whole lot of other people who should not suffer discrimination.  If gay people win by arguing "we are just like you," then the conservative agenda remains in place, including laws and policies that oppress many family structures.  Anyway, read his piece.

While you're at it, here is a Salon profile of me.  And check out the organization Unmarried Equality, the group formerly known as the Alternatives to Marriage Project, and consider signing their petition to get the American Academy of Pediatrics to change its reasoning for supporting same-sex marriage.  You can read and sign the petition here.  I signed it, but I am not sure why they singled out this one group, when almost every group that expresses support for marriage equality argues that it is good for children and, simultaneously, in subtle or less subtle ways, disrespects and disparages parenting outside of marriage.  I refused to sign on to an amicus brief in the Supreme Court cases that had a couple of sentences to that effect.

Don't be fooled by the kinder, softer defense of DOMA

My post on Hollingsworth v Perry yesterday focused largely on the arguments about the wellbeing of children that surfaced on all sides.  If that were my focus of this post, on today's United States v. Windsor, well, there wouldn't be a post.  Paul Clement, representing BLAG (actually the Republican House members committed to defending the indefensible Defense of Marriage Act), did not utter a word against gay and lesbian parents, or even against all the allegedly irresponsible procreation heterosexuals do (and will do more of if same-sex couples can marry, if you believe Charles Cooper's argument yesterday).

No.  Clement defended DOMA as a reasonable effort by Congress to achieve uniformity in the treatment of same-sex couples.  Whether you're in New York or Oklahoma, same-sex couples cannot get the federal consequences of marriage.  That's Clement's idea of uniformity.  It matters not that New York recognizes same-sex marriage and Oklahoma does not.  Those couples should be treated alike.  Clement stressed this, and nothing else, as the purpose of DOMA.  Kagan and Ginsburg, at least, were having nothing of it.  Kagan read from the House Report on DOMA, which stated directly that the law expressed Congress's moral disapproval of homosexuality.  Ginsburg made another reference to the history of sex discrimination (to add to her comments on that basis yesterday) and how long it took the Supreme Court to figure out that the constitution forbids it.  I have no doubt she is going to write an opinion containing impassioned support for lesbian and gay equality, and she is going to write it in this case because she may not have another chance.  I am guessing she will retire while Obama is in office, and she won't have another chance if she doesn't do it now.  I predict Kagan will join her.

What I can't predict is whether she will write a majority opinion, a plurality, a concurrence, or a partial dissent.  There remains a chance that the Court will decide that it can't hear this case -- that BLAG is not a proper party and the government can't appeal a case it won just to get a definitive ruling from the Supreme Court.  But the smart money says they will get to the merits, and if they do, I'm confident five members of the court will find a way to tank DOMA.

The key has always been Kennedy, and he took an odd tack today.  He challenged Clement on whether Congress had the power to define marriages.  This is a federalism challenge, a claim that marriage is for the states and so Congress overstepped its authority.  But that is a huge reach that really seems implausible.  Congress can't say who can marry whom, but it can define who gets benefits or responsibilities under federal law.  Social security, taxes, federal employee benefits -- of course Congress can say who is in and who is out of those.  What Congress can't do is violate the equal protection clause when it says who is in and who is out.  I think it is a strong argument to say that the states define who is married and the federal government has always tracked that; therefore, if Congress is deviating from that historical practice there is probably a bad motive that calls into question the validity of the classification under the equal protection clause.  But that's different from saying Congress doesn't have the power to say who pays what estate tax (the issue facing Edie Windsor).

So why did Kennedy come back to that point several times?  I wonder if Perry spooked him.  He is not ready to tell Alabama it has to let same-sex couples marry.  The DOMA cases don't raise that question, but Kennedy must be realizing how hard it will be to identify a standard of review for equal protection purposes that does not lead down the path to same-sex marriage throughout the country.  Maybe he sees federalism as the way out of that, although truthfully I have a hard time imagining he will relinquish the eloquence of Lawrence for a highly technical opinion on federalism grounds.  But yesterday he spoke of concern for the children of same-sex couples.  Today his only mention of children was again in the federalism context -- that matters involving children are customarily matters for the states.

Going back to Clement's argument, I actually take a bit of comfort in the fact that with the press and public watching (even if the cameras don't roll (as they should!) in the Supreme Court), he was unwilling to say what all the briefs supporting DOMA say:  that the rational basis for the law is an alleged dispute about the impact of same-sex marriage on both the children of same-sex couples and the institution of marriage for heterosexuals.  If that's an argument some who oppose gay rights are unwilling to say out loud, we are winning the culture war.  Nonetheless, the argument is in the briefs and the Justices can certainly rule on that basis.  Roberts, Scalia, and Alito all expressed the anticipated hostility to the arguments of the government and Windsor. (Some people thought Roberts might vote our way.  If I remembered all the bets I made against that in the last couple of weeks I'd be sitting pretty right now.  I never imagined him on our side, and he was pretty vicious.)

If we get to the last couple of days of the term at the end of June, and the opinions in these case have not yet been issued, I'll be going to the Court to be there when they are read.  These are historic moments.

The talk about children (and more) at the Supreme Court

Today's case in the Supreme Court, Hollingsworth v. Perry, might go away on standing grounds.  That means the Court could rule that, once the state of California decided not to appeal the judgment of the trial court that Prop 8 was unconstitutional, then the proponents of Prop 8 at the initiative stage could not properly appeal to a higher court.  Many of us would like this result.  Marriage becomes available again in California, and the question of the right to marry under the federal constitution is left for a (hopefully much) later day.  Will there be five votes for such a result?  Maybe.  From the questioning it looked like Roberts could rule that way, and he would only need four of the justices more sympathetic to gay rights to join him.  Sotomayor and Breyer both made comments indicative of leaning against the standing of the petitioners, although Sotomayor also expressed some concern about how a law could ever be defended if the proponents could not do it.

Although all the lawyers addressed the standing question, and were prodded to do so first by Chief Justice Roberts, the majority of argument time went to the merits of the case.  Is Prop 8 unconstitional?  Charles Cooper, representing the Prop 8 supporters, argued that when it comes to marriage, same-sex and different-sex (he used the term "opposite-sex;"  I'm sticking with the term I use here) couples are not similarly situated.  This is the argument about the essence of marriage being procreation.  Justice Kagan pushed him, however, asking how allowing same-sex couples to marry harms the institution of marriage.  In other words, she wanted to know how excluding same-sex couples furthered the state's interest.  Cooper basically that no one knows what will come from allowing same-sex couples to marry and voters should be able to proceed cautiously.

At this point, Justice Scalia brought up children.  And he did not mince words.  Sociologists disagree about whether being raised by same-sex couples harms children, he said, and if you redefine marriage you must permit couples to adopt children.  Justice Ginsburg then jumped in to point out that in California same-sex couples can already adopt children, so that argument doesn't work in California.  Scalia stuck to it, as did Cooper, saying that across all states that wasn't true.  At one point I thought Scalia was making Cooper's argument for him, pointing out the alleged lack of a scientific answer to whether it harms children to be raised by same-sex couples.

When Justice Kennedy joined in, he changed the direction of this dialogue about children, pointing out the 40,000 children in California whose same-sex parents can't marry.  He wanted their "voice" (his word) to be heard.  Cooper conceded that was important but pointed out that the plaintiffs' expert could not say what incremental benefit there would be to the children, given that their parents can already be recognized in domestic partnerships.

The argument returned to procreation when Justice Kagan asked if the state could prohibit two 55 year olds from marrying.  Cooper, of course, said no.  And then came a first for me -- and I have read a lot of briefs on these issues (not all, I confess).  After a series of back and forths, Cooper said that the state interest in the marriage of 55 year olds is that the institution of marriage, designed to promote fidelity and monogamy, makes it less likely that the 55 year old man -- who likely is still fertile -- will engage in irresponsible procreation by siring children outside marriage.  Really.  Few men outlive their fertility, Cooper said.  Their marriage to a woman who cannot procreate keeps them from irresponsibly procreating with other women.  Like I said, this was a new one on me.

Ted Olson argued for marriage as a fundamental right, and then got enmeshed with an insistent Scalia who wanted to know the year marriage for same-sex couples became a constitutional right.  It should not have been a hard question.  The answer is that it was always a right.  Scalia would have scoffed at that answer, but at least it would have been an answer.

Then matters turned toward children again, with Olson pointing out that California could not base denial of marriage on anything to do with access to parenting because same-sex couples are fully recognized as parents in California (true...and it is not dependent on marriage...but no one was discussing that today!).  This became part of what would later go back and forth with the Solicitor General...the possibility that states that DO grant full parenting rights, perhaps in the context of domestic partnership or civil union, can't use child-related arguments in defense of excluding same-sex couples from marriage, but states with no same-sex couple protections at all actually might be able to argue that those are constitutional because of the state's interest in the well-being of children.

Before he finished, Olson of course referred to Loving v. Virginia, and the ban that states once had on interracial marriage.  Kennedy cut him off, referring to same-sex marriage as uncharted waters and noting that interracial marriage was a known quantity for hundreds of years in other common law countries.

Solicitor General Donald Virrilli  represented that federal government's position, which I hate: that states may be able to ban recognition of same-sex couples but if they do recognize same-sex couples they must allow them to marry, rather than enter civil unions or domestic partnerships.  Now I will say that not a single justice seemed to like this argument either.  And it really makes no sense in the real world.  How can it be unconstitutional to give all possible rights to same-sex couples except the word marriage and at the same time be constitutional to give no rights at all to same-sex couples?  Of course I do understand the legal theory -- that denying the word marriage shows animus.  And I do absolutely believe the purpose of such a label is to make same-sex couples appear as second-class couples.  But, still, they are undeniably better off than the couples in Alabama who lack all legal protections and can even lose their children for being in same-sex relationships.

So the Justices hammered Verrilli on this point, making him explain this argument.  Finally he said that, essentially, states that did not already respect same-sex couples raising children could argue that the children could be harmed by allowing same-sex couples to marry.  Really.  In another case, he suggested, the state might be able to build a record that would support "caution" because of the impact of same-sex marriage on children.  To his credit, he said the state would have a heavy burden, and he certainly did not suggest the state could meet that burden, but why go there?  If the government thought handing the Court a possible "8/9 state solution" (the ones with couple recognition not called marriage) would produce a good way out for justices unprepared to go the "50 state solution" route, that turned out to be a miscalculation.  I don't expect a single justice to go that route.

Justice Roberts then brought up an issue I have consistently raised in these blog pages and elsewhere.  He called in an "internal inconsistency" that plaintiffs say children of same-sex couples are doing great and so there is no problem extending marriage to same-sex couples and they say that Prop 8 harms children because their parents can't marry.  I have always found this problematic.  It is why we should not be arguing for marriage saying our children are harmed if we can't marry.  We have said for decades now that children are not harmed being raised by gay and lesbian parents or same-sex couples.  We cite study after study that the children turn out fine, or at least not worse than their peers with heterosexual parents.  We say this constantly.  We cite many studies.  So, how, exactly can this be true if at the same time the children are worse off than their peers with heterosexual parents because those parents can marry?  It gives me no pleasure to have an obvious opponent of same-sex marriage raise this point from the bench.  It's just an obvious point that advocates boxed themselves into when they decided to conflate the well-being of children with marriage.  Verrilli answered by saying marriage was stabilizing, but you see the problem.  If children needs that stabilizing factor (if it is even true for same-sex couples...), then you would expect some harm to them to be visible in the years of research about their well-being.  But there is no such evidence of harm.  So why do they need marriage?  The answer is...they don't, unless you point to specific legal consequences.  But almost all of those flow from legal parentage, not marriage.  We never should have gone the route of justifying access to marriage based on the well-being of children. But here we are.

One final point.  Justice Breyer finds international law valuable when interpreting our constitution.  In this argument, he made some references to "PACS."  I'm betting most people did not get what he was saying.  The court stenographer did not get it, because in the transcript the word is "pacts."  But Breyer was pushing Virrilli on his argument that states could not choose couple recognition without the word "marriage," and he referred to states as having "PACS," which is a reference to what France has. "Pacte civile" is the legal term used in France for both same- and different-sex couples who enter a status that is not called marriage.  It is called, colloquially, PACS.  Someone will have to tell the stenographer so the official record can be corrected.... (And, fyi, the full transcript is here).

Do I have a prediction?  I'll throw my hat in (and I needed one in the early morning freezing temps outside the courthouse) with those who think it will go away on standing, or some other procedural ground that avoids the merits.  That will leave the constitutionally of DOMA as the only issue on which the Court rules this term.  Argument on that tomorrow. Stay tuned.

Has it come to this? Marriage before children for same-sex couples?

Yesterday's Washington Post featured a front page article on Paul Katami and Jeff Zarrillo, one of the plaintiff couples in the Perry litigation on same-sex marriage being argued in the Supreme Court on March 26.  By their own account, they are a conventional, suburban, two-earner couple.  With two French bulldogs, Gracie and Gordy, also prominently featured.

The couple wants children.  But only after marriage, they say.

Come again?  I think it's worth analyzing this sentiment.

Certainly some heterosexual couples living together choose to get married when they decide to have children.  Although the law no longer characterizes children as "illegitimate," social pressure might serve the same function. It's a pressure left over from the days when illegitimacy was not only a stigmatized social status but a legal status carrying grave disabilities.  There are people still alive today whose birth certificates were stamped "bastard."

There is no such historical stigma for same-sex couples with children.  In fact, by the time we started having children openly in the context of our same-sex relationships (as opposed to those born in different-sex marriages/relationships), the legal disabilities based on the marital status of one's parents had been erased.  In notable numbers, we began to adopt children as openly gay couples, and we began using assisted reproduction to have children genetically connected to one partner, in the late 1970's.  If we mark 1993 as the beginning of the modern movement for same-sex marriage (the year the Hawaii Supreme Court said it was a possibility, even though an amendment to the Hawaii constitution meant that possibility did not materialize),  there were already lots of our children (including my daughter) in school.  By the time marriage hit Massachusetts in 2004, children from the first wave of the "gayby boom" were adults.

I cannot recall one meeting, one discussion, one public or private statement, that we should postpone or forego having children because we could not marry.  I'm not sure it's an issue that crossed anyone's mind.

What crossed our mind continuously was the legal status of our parent-child relationships.  And so for the last almost 30 years a group of creative lawyers (I like to count myself in that group) have been pushing the law to recognize the parentage of both members of a couple raising a child together.  We haven't been successful in every state, but through statutes and court rulings in numerous states we have protected the relationships a child has with two mothers or two fathers.  Our latest success:  Kansas, as I wrote about last month.

California, where Katami and Zarrillo live, has the best set of parentage laws in the country.  The couple could adopt a child together.  Or if they used surrogacy to have a child, they could obtain a court order before the child's birth naming them both as parents.  And if they didn't do that, still the nonbiological father would be the child's legal parent simply by living with the child and holding the child out to the world as his child.

Because all legal benefits and obligations flow from recognition as a child's parent, there is nothing the marriage of Katami and Zarrillo would accomplish that parentage does not.  The right to make decisions, review educational records, travel across borders, receive support and public benefits, maintain a connection to both parents if the relationship dissolves, remain in the care of the surviving parent if the other parent dies, etc are all tied to parentage, not marriage.

So why do they think marriage should come first?  And if they lose in the Supreme Court does that mean they forego having a child entirely?

Perhaps they believe that heterosexuals should marry before having children and that equality means living by the same rules.  When David Blankenhorn switched sides in the marriage equality debate, he said he hoped it would further a conversation of the importance of marriage in the lives of children.  But if the Katami/Zarrillo position gains any prominence it will be a tragic example of mission creep.

Same-sex marriage is supposed to be about the equal value of lesbian and gay relationships.  We aren't second-class members of society and we shouldn't have a term applied to our relationships that suggests we are.  It shouldn't be about buying into the "marriage promotion" agenda I have long decried in this blog.  And yet it clearly is for some people.  That is, after all, what explains Ted Olson's role.  He likes gay couples getting married because marriage is a conservative value.  Come to think of it, maybe Katami and Zarrillo's position isn't so hard to explain; Olson picked them to be plaintiffs in this case.

Post-election thoughts on the marriage ballot measures

I can't disagree that the ballot box victories for same-sex marriage, including Minnesota's defeat of a constitutional amendment to ban it, are a turning point.  I am, however, troubled by one aspect of the press coverage of these victories.  The anchors and newspapers have repeatedly said that, before last night, every ballot measure against same-sex marriage had been successful.  This is a little misleading.  Voters in Arizona in 2006 defeated Prop 107.

Prop 107 was a constitutional amendment banning both same-sex marriage and recognition of rights for unmarried couples.  The latter consequence was phrased this way:  "no legal status for unmarried persons shall be created or recognized by this state or its political subdivisions that is similar to that of marriage."  The majority of states that ban same-sex marriage also have language like this (generically called "super-DOMAs"), that can mean the end of domestic partner benefits for straight and gay public employees (this happened in Wisconsin) and bans on recognizing any rights for unmarried couples.  (In Ohio, some courts invalidated laws against domestic violence aimed at an unmarried partner because of that state's super-DOMA;  that interpretation was ultimately invalidated by the Ohio Supreme Court).

Prop 107 lost at the polls.  Widely credited for the loss was a campaign highlighting that straight couples would lose domestic partner benefits they had as employees of the cities of Tucson and Phoenix and other public employers.  The benefits were also available to same-sex couples.

Two years later, Arizona voters did approve a constitutional amendment limited to banning same-sex marriage, in other words not a super-DOMA.

So it is true that Arizona voters ultimately rejected same-sex marriage.  But omitting mention of Prop 107 omits an important part of the history of these ballot measures.  The Prop 107 vote stands for the proposition that voters don't believe all couples who can marry should have to marry.  Since super-DOMAs have passed in so many other states, the Arizona defeat is the evidence that there is some resistance to stigmatizing unmarried couples -- gay and straight.

I think news coverage of yesterday's ballot measures should have included this fact.  Instead of saying that no ballot initiative against same-sex marriage had ever been defeated, reporters could have said that before last night only one state had defeated such a measure, and that was when it also banned any recognition of unmarried couples.

As I often write here, I worry that the fight for marriage equality has pushed off the agenda of the gay rights movement any support for same-sex couples who don't marry when it is available.  I actually discuss that extensively in the context of the decision of Lambda Legal to abandon the interests of unmarried straight couples in Arizona who lost their domestic partner benefits.  (See my post here.)

I don't think most people know about super-DOMAs, and I consider the coverage of yesterday's ballot measures that omitted the Arizona experience as a missed opportunity to provide important information.

Garnering support for marriage equality with a problematic message

By now everyone knows there are four same-sex marriage ballot initiatives coming up next month. Minnesota's is the old-fashioned kind -- a constitutional amendment to ban same-sex marriage.  Maryland and Washington will vote on whether to keep from going into effect legislation passed last term allowing same-sex couples to marry.  In Maine, voters will decide whether to enact marriage equality by popular vote; if it passes, it will be the first state to grant marriage equality this way.  Three years ago, Maine voters rejected a marriage equality law passed by the legislature.

Of course I hope the Maine initiative is successful (and that the other measures fail).  But I am deeply troubled by an apparent switch in focus by the campaign for marriage equality.   According to Thursday's Los Angeles Times,  the campaign manager of Mainers United for Marriage, Matt McTighe, reports that campaign volunteers going door-to-door talking to voters "talk less about gay rights and more about marriage as a stabilizing force in society."  In other words, this fight for marriage equality is less about equality and more about marriage.

But what does it mean to sell same-sex marriage because marriage is a stabilizing force?  If we denominate those who marry the virtuous ones, then those who don't marry must be de-stabilizing.  I have never understood how this can be a pro-gay message, when up until recently there have been no same-sex marriages but there have been a whole lot of long-term same-sex relationships, with and without children, contributing to civic life and their communities.  The gay rights message can't be that we think those families were a de-stabilizing force on society because they weren't married.  So the message must be a dig at heterosexuals who don't marry, and that's the same message right wing organizations use when they blame single mothers for all our social problems, thereby displacing responsibility from the income inequality, inadequate education system, race and sex discrimination, and lack of public support for childrearing that really cause our nation's problems.  (For more on this, read one of my early blog posts here.)

Long-time marriage equality opponent David Blankenhorn got a lot of attention this past summer for his conversion to marriage equality supporter.  In a recent video opposing Minnesota's constitutional amendment, Blankenhorn explains that he dropped his opposition because opposing gay marriage was not helping achieve his goals of having "society renew its commitment to the marital institution" and having more children grow up in stable two parent homes.  In his New York Times piece explaining his conversion, he called for a coalition of gay and straight people who want to "strengthen marriage."  And he tells us what that means. His agenda is:  people should marry before having children and should marry rather than "cohabit." He also hopes this coalition will agree that children born from assisted reproduction should have a "right to know and be known by" those who donated the semen or eggs that resulted in their birth.  (He calls those people "their biological parents," but I am more critical of using the word "parent" in this context.)  So by his account, same-sex couples should not live together until they marry; should not have children unless and until they marry; and should not use anonymous sperm or egg donors to procreate.  With friends like that....

I'm not saying that Mainers United for Marriage believes those things.  But consider its name.  Not Mainers United for Marriage Equality, or even Mainers United for the Freedom to Marry.  Mainers United for Marriage.  If you didn't know otherwise, that could be the name of a group opposing marriage for same-sex couples, because, after all, those groups say they are for marriage. I, on the other hand, am for equality.  And proud of it.

The survey that proves nothing about the intracommunity debate about same-sex marriage

It's September 12, 2001. Are you a patriotic American?  Yes or no.  Just yes or no.  No other choices and no discussion.  I venture to guess that almost every American would have said yes if asked on that day.  There is something about being attacked that produces unity against an enemy.  But the answer to that question at that moment in time would have said nothing about deep divisions in this country over American imperialism or treatment of immigrants from Muslim countries.  For that, more questions would need to be asked.  And those answers would certainly have shown disagreements.

What I have just written seems so obvious, and yet two researchers of LGBT issues have made a mistake of a similar nature.  In this Bilerico post last week, Ken Sherrill and Andrew Flores report on a survey asking almost 1200 LGBT respondents whether they support allowing same-sex couples to marry.  Yes or no. 85% said yes.  And the small minority opposing it were much more likely to be conservatives than liberals.  From this Sherrill and Flores have concluded that the view Paula Ettelbrick expressed over twenty years ago, skeptical of same-sex marriage, lacks support, that "marriage equality is not a matter of serious debate among rank-and-file LGBT people."  The authors actually suggest that maybe intellectuals, academics and journalists were the only ones to ever doubt the goal of marriage equality.

Do you support security for Jews in Israel?  Yes or no.  Just yes or no.  Can you imagine 85% of Jews saying yes and then concluding there is no serious debate among Jews about the parameters and policies of the state of Israel?  It's ridiculous, as any one day's perusal of Haaretz would reveal.

Political opposition to marriage for same-sex couples today is an attack on LGBT people.  Opponents think our open and proud existence causes social harm and that our relationships are less valuable than heterosexual ones.  So to a yes-or-no question about supporting marriage for same-sex couples, gay rights supporters will almost always say yes.  Paula Ettelbrick said yes.  I say yes, and readers of my book and my blog know I think much of the advocacy in the name of marriage equality is divisive, destructive, and misguided.  85% of LGBT people saying yes says nothing about the extent and the content of disagreement about the tactics and priorities of the movement for marriage equality.

To get at real divisions among LGBT people, here are just a few questions a survey could ask:
Should a couple have to marry to make health care decisions for each other?
Should a couple have to marry for a court to have the power to divide their property fairly if their relationship ends?
Do you think the fight for same-sex marriage has taken money and time away from more critical issues?
Do you think marriage should be a religious institution only and that the civil status for all couples should get a new name, like civil partnership?
Should an employer provide domestic partner benefits to both same-sex and different-sex couples?

Or how about this more complex question:
Imagine two married couples.  The income in each household is $80,000 a year, but in one household one spouse earns all the income.  In the other household, the two spouses each earn $40,000 a year. Right now our Social Security system gives much more money to the couple in which one spouse earns all the money than it gives to the couple in which the two spouses contribute equally to the income.
Which goal is more important to you?
A.  Make sure married same-sex couples with one earner get the benefits that married different-sex couples with one earner get now, or
B.   Change the way Social Security is calculated so that two-income marriages, gay and straight, are no longer discriminated against?

(Caveat:  I do not claim any competence in designing appropriately worded survey questions so I would leave that to someone else....)

I think those types of questions would uncover the differences that exist among LGBT people about marriage.  And I think the conclusion that Sherrill and Flores drew from the yes-or-no survey data they analyzed, that there is no left critique of same-sex marriage, is wrong enough that they should withdraw it.

The right not to marry? Ruthann Robson thinks this might lurk in the right to marry cases

I consider CUNY-Queens law professor Ruthann Robson a fellow traveller among critics of the single-minded quest for marriage equality.  I am happy to see that she has contributed to the SCOTUSBLOG online symposium on the same-sex marriage cases that the Supreme Court will be discussing tomorrow at their conference.  Once we know whether (more likely which) of the cases the Court will hear this term, the work of briefing those cases will begin.

I fear, as always, that arguments for marriage equality that idolize marriage actually create less space for families and relationships not organized around marriage.  Robson suggests an alternate possibility, that if the Court finds the right to marry fundmental then the right not to marry should also be considered fundamental.  Here is how she puts it:

For if the Court deemed the right to marry fundamental, then the concomitant right – the right not to marry – should likewise be fundamental. Revived proposals to condition poverty assistance on marital status, as well as tax benefits and burdens based on marital status, would require strict judicial scrutiny. While “marriage equality” advocates have often quelled the objections of more nonconformist LGBT activists with assurances that same-sex marriage will not mandate marriage, a judicial commitment to strictly scrutinize government laws channeling people into marriage might make the choice whether or not to marry less legally over-determined.

I find myself skeptical.  I think Robson may have underestimated the extent to which marriage equality supporters want everyone -- including gay people -- channeled into marriage.  But how great if it turns out just the way she says!

Maryland court's approval of same-sex marriages from elsewhere includes nod to adoption by same-sex couples

Port v Cowan, the decision of the Maryland Court of Appeals today (that's the state's highest court) that Maryland recognizes same-sex marriages validly performed elsewhere, is notable in a number of respects.  The case arose in the context of a divorce action, with the trial judge refusing to grant the divorce because Maryland does not allow same-sex marriage.  A Wyoming trial court judge did the same things a couple of years ago.  But when the Wyoming Supreme Court reversed, as I write about here, it did so only to extent of ruling that the couple could divorce in Wyoming, not that the state would recognize a marriage. The Maryland court, on the other hand, was clear that Maryland will recognize same-sex marriages from elsewhere.  Period.  In reasoning that recognizing such marriages is not "repugnant" to Maryland public policy, the court listed all the ways in which state law recognizes and protects gay men and lesbians.  Also, the state's ban on same-sex marriage -- upheld just a few years ago -- does not ban recognition of such marriages from elsewhere.  Although the legislature could write such a ban into Maryland law, that's not going to happen --- not from a legislature that just passed marriage equality!  In a cute quip, the court's opinion refers to Maryland as suffering from "multiple personality disorder" when it comes to treatment of same-sex couples.

Here's perhaps the most amazing part of this ruling -- it was unanimous! And written by the same (conservative) judge who five years ago wrote the majority opinion in Conaway v. Deane upholding the state's ban on same-sex marriage.  In other words, the same judge who wrote that the Maryland constitution does not require the state to marry same-sex couples has now ruled that recognizing such marriages from elsewhere is not repugnant to the state's public policy and therefore they are valid in Maryland under the doctrine of comity.

My favorite part of the opinion, however, is what it says about gay people raising children.  First it refers to its own decisions banning discrimination in custody/visitation disputes.  (I'm proud to say that I was appellate counsel on one of the cited cases, Boswell v. Boswell.)  Then there's a footnote that says the following:

Although the issue has not been addressed in a holding by the Court, Judge Raker, in her concurring/dissenting opinion in Conaway, expressed her view that Family Law Article § 5-3A-29 permits same-sex couples to adopt children.

Conaway is the case upholding the ban on same-sex marriage.  The code portion cited is that which says that any adult may petition to adopt a child.  No appeals court in Maryland has ruled on whether two same-sex partners can adopt a child together.  One argument for permitting it is the usual statutory construction rule that the singular means the plural.  Trial judges have been granting joint and second-parent adoptions for maybe 15 years, but without a definitive ruling from an appeals court  there was always the possibility that some appeals court, in some context, would say that the Maryland statute does not allow it.  There was absolutely no need for the court in this case to even mention same-sex couples adopting children.  So I take this mention by the judge who ruled against same-sex marriage of something written in the same-sex marriage opinion by a judge who wanted to rule in favor of same-sex marriage as a sign that he and his colleagues think adoption by same-sex couples is indeed permitted.  Yippee!!!!

Marriage isn't the answer ... and I'm not the only one who thinks that

I'll never forget where I was when Nelson Mandela walked to freedom on February 11, 1990, after 27 years behind bars.  That was my idea of an historic event.  I cannot equate Obama's support for same-sex marriage to anything like that, which I suppose puts me in the minority of gay rights activists today. But I'm not alone.  This morning's Washington Post blog contains an excellent entry from Lauren Taylor (full disclosure:  she's my friend!) with many supportive comments.

Equality is an important value, but so is justice.  It's a lot simpler to be for equal access to marriage for same-sex couples than to craft law and policy that supports all the ways in which gay -- and straight -- people form families.  I raise these issues in my blog posts whenever they arise.  Sometimes it's actually harder to make these arguments after same-sex couples can marry, because so many people think that's the whole ball game.  Fortunately, Lauren Taylor isn't one of those people...

Ninth Circuit refuses to rehear Diaz v. Brewer en banc. Is this case heading to the US Supreme Court?

Last week the Ninth Circuit denied Arizona's petition for rehearing en banc in Diaz v. Brewer.  I have written about what I dislike about this case.  In short, Arizona state employees had domestic partner health benefits for same- and different-sex partners, something made possible only because Arizona defeated a "super-DOMA" in 2006.  The super-DOMA would have prohibited state recognition of not only same-sex marriage but rights for unmarried partners.  Different-sex couples featured prominently in the campaign to defeat the super-DOMA. Then, in 2009, when the state revoked the benefits, Lambda Legal sued to block the rescission but only on behalf of workers with same-sex partners, effectively abandoning the constituency that made it possible for the gay employees to have the benefits in the first place.

The plaintiffs won in both the District Court and the Ninth Circuit, and it's the Ninth Circuit win that remains intact now that the Court will not hear it en banc.  The panel ruled on Equal Protection grounds that there was discrimination against gay and lesbian employees and that the state could not justify the discrimination on the grounds of cost because there were so few same-sex couples taking advantage of the benefits.  I'm writing a longer article now with my critique of Lambda's decision to abandon different-sex couples.  Lambda has framed the case as seeking for gay employees what straight employees already have.  They do this by asserting that since straight couples can marry they have lost nothing by losing domestic partner benefits.  I do not support this dismissive and disrespectful characterization of unmarried different-sex couples.  The movement I want to be a part of does not make marriage mandatory for different-sex OR same-sex couples, yet that's the upshot of the Lambda argument.  All the gay plaintiffs swore that they would marry their partners if Arizona law allowed it.  Presumably this means that those who did not want to marry could not be plaintiffs in this case.  For a movement whose origins rest squarely with a commitment to family diversity, this amounts to abandoning a constituency of gay families and relationships that do not put themselves within the mold of marriage.  If this is what equality gets us, it comes at the cost to the liberty and justice that used to animated discussions of LGBT families and relationships.

So the courts found the discrimination to exist against gay employees only precisely because different-sex couples can marry. At this posture, what's left for Arizona is to file for cert in the US Supreme Court.  This case has received almost no media attention, and certainly nothing compared with that of Perry v. Brown, challenging California's Prop 8, or even the Gill case argued so ably by Mary Bonauto in the First Circuit Court of Appeals last week. The latter case concerns the constitutionality of the part of DOMA that denies federal recognition to legally married same-sex couples.

But Diaz is closer to US Supreme Court review than either of those cases. With this denial of en banc review, the case is ripe for a cert petition.  The case places squarely before the Court whether a state that does not allow same-sex couples to marry may differentiate between same-sex couples and married heterosexual couples.  Thus, it is a case with huge implications for anti-discrimination law.  If the Supreme Court were to hear it, gay rights advocates would assert, in the highest court in the land, that it's fine for states to prefer married couples over unmarried couples, in fact that marriage is great and states can promote it; they just have to let same-sex couples who can't marry have access to the same benefits.  No surprise to my steady readers that I hate this argument.  There are a lot of LGBT folks who hate it too, but their voices aren't heard too loudly these days.

Shannon Minter awesome (as usual) in Maryland Court of Appeals argument on availability of divorce for same-sex couples

Can a married lesbian couple divorce in Maryland even though they could not marry there? (yet)  A trial court in Maryland said no, and the appeal of that ruling was heard today in the Maryland Court of Appeals.  You can watch the oral argument by NCLR legal director Shannon Minter here.  (Click on document 4/6/12 - No. 69 -- Port v. Cowan)

We won't see the real thing...but you can watch George Clooney and John C. Reilly

From the moment I read David Boies's brilliant cross-examination of David Blankenhorn in the Prop 8 trial (Perry v. Schwarzenegger) I've been hoping the day would come when I could watch it on tape.  Unfortunately, that's unlikely.  First the Supreme Court said the trial judge (Vaughn Walker) could not live stream the trial.  Then Judge Walker said he would make a videotape, but only for himself, and that it would not be released. Fast forward more than a year after Judge Walker struck down Prop 8.  Gay rights supporters moved for the release of the videotape.  The new judge assigned to the case after Judge Walker retired, Judge Ware, did order the tape's release, but last month the Ninth Circuit reversed and ruled that the tape must be permanently sealed. That dashed my hopes to see Blankenhorn huff and puff and squiggle and wiggle, in an environment he could not control -- the courtroom -- under the questioning of a masterful trial lawyer.

While it's no substitute for the real thing, I nonetheless enjoyed watching George Clooney (confession: I always love watching George Clooney) play the role of David Boies and John C. Reilly play Blankenhorn in the staged reading of 8, Dustin Lance Black's play derived from the trial transcripts.  There were other superstars -- Brad Pitt as Judge Walker, Martin Sheen as Ted Olson, Kevin Bacon as Charles Cooper, the lead lawyer for supporters of Prop 8.  (Jane Lynch was terrific in some asides as Maggie Gallagher). You can watch the whole performance here.  The direct of Reilly and then the cross begins at 1:20, so you can fast forward to there.  There's a break from about 1:38 to 1:44 for interaction among the plaintiff lesbian couple and their two sons (I didn't care for those portions of the script....) and the cross examination resumes after that.

In remarks at the end of the performance, the real David Boies noted the irony that Prop 8 proponents wanted to keep the public from viewing the trial, but the performance of 8, through the wonders of the internet and by virtue of the stars in the roles, would be seen by far more people than would have watched the trial tapes themselves.  The play can't capture the twelve day trial, but it does highlight the dominant legal theme.  Judge Walker expected real evidence of what society gains from prohibiting same-sex marriage, and the Prop 8 defenders did not, could not, and did not think they should have to, produce such evidence.  After David Boies took the depositions of his opponent's expected witnesses, only Blankenhorn and one other wound up testifying.  Only Blankenhorn testified about the state's interest in preserving different-sex only marriage, and, well, watch the play yourself and you'll see why he was completely ineffective.  Better yet, read his direct and cross beginning on the 11th day of the trial here (on page 2716) and continuing on the 12th day here.

Brilliant Ninth Circuit opinion strikes down Prop 8, but the serenade to marriage is unnecessary

In a 2-1 ruling, the Ninth Circuit in Perry v. Brown, has ruled that Prop 8 is an unconstitutional violation of federal equal protection law.  The opinion explicitly does not address whether any ban on same-sex marriage is unconstitutional.  Rather, it addresses only Prop 8 -- that is, only the elimination of the state constitutional right to marry announced by the California Supreme Court in In re Marriage Cases.  The court relies on the US Supreme Court precedent in Romer v. Evans that the bare desire to harm a particular group is not a legitimate state interest.

Let me say at the outset that the national gay rights legal groups deserve the credit for urging this approach to Prop 8.  The original litigation, as framed by the Olsen-Boies legal team, was a full-on challenge to the exclusion of same-sex couples from marriage.  The national litigation groups did not think the time was right for such an attack.  For example, GLAD initiated litigation almost three years ago challenging the constitutionality of the part of the Defense of Marriage Act that denies federal recognition to same-sex marriages.  GLAD intentionally did not challenge all marriage bans.  Although Olsen-Boies were not especially responsive to the wisdom of the experts in this area, they did ultimately see the value in at least including in their arguments a more Prop 8-focused challenge.  Numerous amici in the Ninth Circuit urged the court to rule on this more narrow ground.  Everyone assumes this case is headed for the US Supreme Court, where the vote of the author of the Romer opinion, Justice Kennedy, will be critical.  Although his vote is by no means assured, the legal reasoning of the Ninth Circuit stands the best shot at an affirmance.

The court identified the issue as whether the People of California had a legitimate reason for taking away the label "marriage" from the relationships of same-sex couples while leaving such couples with the "domestic partnership" designation.  And the critical backdrop of this issue is that same-sex couples do have access in California to the status of "domestic partnership" which grants all the legal consequences of marriage without the name.

The court found a close analogy to Romer, where the People of Colorado, through what was called Amendment 2, took away from lesbians and gay men the ability to be protected against discrimination under state and local laws; some Colorado cities had enacted those anti-discrimination measures, and Amendment 2 eliminated them.  Again reiterating the narrow reasoning in this case, the court noted that the Colorado cities were not constitutionally required to pass such anti-discrimination measures for the Supreme Court to reason that those protections could not be removed, from gay people only, without a legitimate state interest other than disapproval of gay people.  I particularly love that the Ninth Circuit also cited one of my favorite cases, US Dept. of Agriculture v. Moreno, which found unconstitutional Congress's removal from the food stamp program households of unrelated members, something the record showed stemmed solely from disapproval of hippie communes.  The Constitution did not require Congress to give food stamps to anyone.  But once it did, it could not remove that benefit only from certain groups without a legitimate reason for doing so.

So then all that was left was for the court to review the possible legitimate reasons.  The court rejected the argument that Prop 8 would increase the likelihood of children being raised by their married biological parents, since the parentage laws of California extend to gay men and lesbians and Prop 8 did not change that.  It also found implausible (at one point calling it lacking any "footing in reality") the argument that taking away the designation "marriage" from same-sex couples would cause heterosexuals to procreate more responsibly or would strengthen families headed by a man and a woman.

The court also rejected other arguments, including one that it would protect children from being taught in school that same-sex marriage is the same as "traditional" marriage. (For a terrific analysis of the campaign ads for Prop 8 about what children would learn in school, see this piece by Berkeley law professor Melissa Murray). The usual response to this from the pro-gay side is to say that allowing same-sex marriage has nothing to do with what is taught in school.  And the Ninth Circuit says that as well. But it says something more that actually addresses the substance of the concerns of the opponents of gay rights.  It's important enough to quote in full.

There is a limited sense in which the designation of 'marriage' to same-sex partnerships might alter the content of the lessons that schools choose to teach.  Schools teach about the world as it is; when the world changes, lessons change.  A shift in the State's marriage law may therefore affect the content of classroom instruction just as would the election of a new governor, the discovery of a new chemical element, or the adoption of a new law permitting no-fault divorce: students learn about these as empirical facts of the world around them.  But to protest the teaching of these facts is little different from protesting their very existence; it is like opposing the election of a particulat governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to that fact if a course in societal structure were taught to graduating seniors.  The prospect of children learning about the laws of the State and society's assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy. (emphasis in original)

After disposing of other alleged reasons, the court concludes that the purpose of Prop 8 was disapproval of gay men and lesbian as a class and a desire to withhold the official designation and societal approval of the word "marriage."  "By withdrawing the availabilty of the recognized designation of 'marriage,' Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class."  Prop 8 does not change the legal consequences available to same-sex couples, which attach to domestic partnerships, but it "dramatically reduces the societal standing of gays and lesbians and diminishes their dignity."

The dissenting judge essentially applied the most deferential form of rational basis review available.  He concluded that animosity and moral disapproval could motivate Prop 8 as long as there was some other rational reason behind it.  He also placed on the challengers the burden of negating every conceivable rational basis for the law.  Ultimately, he concluded that "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting."  Those assumptions might be wrong, he wrote, but that they are arguable is sufficient.

All that's left is for me to offer a complaint I've made frequently in these posts.  The equality argument underlying this ruling is unassailable.  It is, of course, true that the voters of California knew there was a legal status called domestic partnership available to same-sex couples and knew that status would remain.  The majority is right on target when it asserts the the only reason to deny the name "marriage" to a same-sex relationship is to confer a status of lesser dignity and worth on lesbians and gay men.

But such an argument does not require glorifying marriage.  It will be oft-quoted that the majority opinion references Groucho Marx, Shakespeare, Lincoln, and Marilyn Monroe in conveying the meaning of marriage.  (See page 38 of the opinion through the above link).  "The designation of 'marriage,'" the court writes, "is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered it."  Marriage finds its place in poetry, to be sure.  But commitment exists in so many relationships, often those that endure longer than marriages.  The more marriage is glorified, by marriage equality opponents and supporters alike, the less able we are to see those commitments all around us and to honor them and confer upon them appropriate legal consequences.  For that problem, today's ruling solves nothing.