Educational Exception to Copyright: from Volokh

Fourth Circuit strikes down

Virginia ban on same-sex

marriage

July 28 at 2:57 PM
In a 2-1 decision in Bostic v. Schaefer, a panel of the Fourth Circuit has invalidated Virginia’s ban on same-sex marriage. The majority opinion was written by Judge Henry Floyd (an Obama nominee, but previously a George W. Bush choice for the district court) and joined by Judge Roger Gregory (Clinton nominee). It’s the second post-Windsor appellate court, after the Tenth Circuit, to strike down an exclusion of gay couples from marriage. Judge Paul Niemeyer (George H.W. Bush) dissented, the second appellate court judge to do so since Windsor. The case was argued by Ted Olson, who recently co-authored a book with David Boies about their challenge to Proposition 8.

The Fourth Circuit majority held that the ban violated gay couples’ fundamental right to marry. Specifically, the majority placed heavy reliance on both Windsor and Lawrence v. Texas as establishing the equal validity of gay couples’ intimate and relational choices:

Lawrence and Windsor indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships. We therefore have no reason to suspect that the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of different race, owes child support, or is imprisoned. Accordingly, we decline the Proponents’ invitation to characterize the right at issue in this case as the right to same-sex marriage rather than simply the right to marry.

In what has become fairly common, the panel closed its decision with broad thoughts on the underlying issue of same-sex marriage. But this time the court explicitly used the word “segregation” to describe the exclusion of same-sex couples from marriage:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

The idea that laws limiting marriage to opposite-sex couples are a form of segregation is historically loaded, especially for a court sitting in the heart of the old Confederacy. Analogies to the black civil rights movement, and in this context specifically to anti-miscegenation laws and second-class status, have become a staple of gay-rights political and legal arguments. Rarely have they gained quite this explicit an endorsement from a prominent court.

The dissenting opinion is a foretaste of the response to the fundamental-rights argument that we will likely hear in the Supreme Court from (at least) four Justices. It proclaims neutrality on the policy question but leans on judicial restraint in the definition of fundamental rights:

This analysis is fundamentally flawed because it fails to take into account that the “marriage” that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a “same-sex marriage.” And this failure is even more pronounced by the majority’s acknowledgment that same-sex marriage is a new notion that has not been recognized “for most of our country’s history.” [citation omitted] Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation. Thus, the majority never asks the question necessary to finding a fundamental right — whether same-sex marriage is a right that is “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if [it was] sacrificed.” [citations omitted]

We don’t know yet whether Virginia will seek review by the entire appeals court before seeking review in the Supreme Court, which would slow down the process. The 10th Circuit case seems to be on a fast track, with state officials eschewing en banc review. It’s likely that more circuit courts will speak to this issue in the coming months, including possible opinions from the 5th and 6th Circuits.

UPDATE: North Carolina’s attorney general, Democrat Roy Cooper, has announced his office will no longer defend the state’s prohibition on gay marriage: “Since the US Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.” (HT: Chris Geidner)

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.

In the News Now

Grand Old Party for a Brand New Generation

There was a lot of internet chatter about the above “GOP for a New Generation” report today.  Out of curiosity I decided to read it.  It was really interesting and while it doesn’t have much to do with our recent discussion of whether the Republican Party has moved right or not, I think it’s indicative of where they could use some improvement.

I happen to be the mother of young voters just outside of this under 30 age group, and because I’ve enjoyed watching their political views form so much, I thought this was a great study.

To be clear, in addition to the parts I’ve excerpted, they also polled economic matters, the size of government (interesting results there), the environment, and also discussed the use of social media and other sources of political news.

The following report assesses the findings from a variety of studies on young voters, including a new March 2013 survey conducted for the College Republican National Committee (CRNC), and makes recommendations about how Republicans can begin this work today.

We believe that Republicans can win young voters but that it will require a significantly different approach than has been used in recent elections.

Health Care

Health care remains a second-tier issue behind the economy and the national debt. In the August 2012 XG survey, only 8% of young voters said it was their top issue, and just 27% named “lowering health care costs and improving care” as one of their top two or three priorities in the March 2013 CRNC survey.

Nonetheless, the issue is at the top of the second tier in both surveys and came up frequently in our focus group research. In the August XG survey, young voters handed Democrats a heavy advantage on the issue, preferring their handling of health care to Republicans by a 63-37 margin. Some 41% thought things overall would be better as a result of Obama’s health care reform plan (versus to 32% who said things would be worse).

Many of the young people in our focus groups noted that they thought everyone in America should have access to health coverage. In the Spring 2012Harvard Institute of Politics survey of young voters, 44% said that “basic health insurance is a right for all people, and if someone has no means of paying for it, the government should provide it”; 23% disagreed.

Admittedly, there were concerns about the cost and quality of health care under the ACA but in general the young people gave Obama credit for trying.

Immigration

While immigration wasn’t a major issue it appeared it might be an issue that could turn a voter against a conservative candidate who they agreed with on taxes or other economic issues but disagreed with on immigration reform.

The position taken most frequently by young voters was that “illegal immigrants should have a path to earn citizenship,” chosen by35% of respondents. Closely behind this were the 30% who preferred the “enforcement first” strategy of securing the border and enforcing existing immigration laws. Some 19% chose “illegal immigrants should be deported or put in jail for breaking the law,” while another 17% took the position that “illegal immigrants should have a path to legal status but not citizenship.”On the issue of laws that “would allow illegal immigrants brought to the U.S. as children to gain legal resident status if they join the military or go to college,” three out of four (75.3%) young adults agreed in an October 2012 poll conducted by CIRCLE. And young voters for the most part knew how the candidates in the election stood on that issue; in that same survey, 63% of respondents said that Barack Obama was the candidate who supported “allowing many illegal or undocumented immigrants who were brought to the United States as children to remain in the country,” while only 3% said that was Mitt Romney’s position.

Abortion

This really surprised me; I knew it was pretty close but not quite this close.  In this case I wish Dems would alter their position a little to make room for a more tolerant culture of life position, but I repeat myself.

The results debunk the conventional wisdom on the issue and establish that not all “social issues” are viewed the same. Indeed, only 16% of young voters preferred that abortion be legal in all cases, while 32% said abortion should be legal “up to a certain point.” Combined, that comprises 48% who take a position leaning toward legality. On the other side, 37% felt abortion should be illegal with exceptions, and 14% thought abortion should always be illegal, making a combined 51% who lean toward prohibiting abortion. On this issue, there is small gender divide, with men in the survey actually tending to lean more pro-choice than women.

Where the Republican Party runs into trouble with young voters on the abortion issue is not necessarily in being pro-life. On the contrary, the Democratic Party’s position of pushing for abortion to be legal in all cases and at all times, including some recent laws around how to handle medical care for babies born alive during abortion procedures, is what is outside the norm of where young voters stand. Unfortunately for the GOP, the Republican Party has been painted – both by Democrats and by unhelpful voices in our own ranks – as holding the most extreme anti-abortion position (that it should be prohibited in all cases). Furthermore, the issue of protecting life has been conflated with issues around the definition of rape, funding for Planned Parenthood, and even contraception.

In the words of one pro-life respondent, “The Planned Parenthood thing for me is not so much about abortion; it’s about counseling before you can get to that point, and I feel that that’s a big part of what they do, is contraception counseling and about being safe.”

Bingo

Gay Marriage

Perhaps no topic has gotten more attention with regards to the youth vote than the issue of gay marriage. And on this issue, the conventional wisdom is right: young people are unlikely to view homosexuality as morally wrong, and they lean toward legal recognition of same-sex relationships. Only 21% of young voters in the Spring 2012 Harvard Institute of Politics survey felt that religious values should play a more important role in government, and only 25% felt homosexual relationships were wrong. Young people nowadays are more likely than ever to know someone who is openly gay or lesbian, and that factor is correlated with attitudes supporting same-sex marriage.

Surveys have consistently shown that gay marriage is not as important an issue as jobs and the economy to young voters. Yet it was unmistakable in the focus groups that gay marriage was a reason many of these young voters disliked the GOP.

The conclusion of the report discusses five areas where they think the GOP can improve their chances to win over a larger percentage of the youth vote and they explain their methodology and whatnot.

I’m still working on an immigration post, just thought this was interesting and current considering all the references I read about it today on both sides of the political divide.

The PIB Argument

A long article in Slate by John Corvino takes on the tendency for opponents to marriage equality to insist that people who support gay marriage must also be in favor of polygamy, incest, and bestiality (or PIB as he calls it). One paragraph in particular jumped out at me.

But why would anyone think that supporting same-sex relationships logically entails supporting PIB? The answer, I think, is that some people misread the pro-gay position as resting on some version of the following premise: People have a right to whatever kind of sexual activity they find fulfilling. (emphasis in the original) If that were true, then it would indeed follow that people have a right to polygamy, incest, “man on child, man on dog or whatever the case may be.” But no serious person actually believes this premise, at least not in unqualified form. That is, no serious person thinks that the right to sexual expression is absolute. The premise, thus construed, is a straw man.(emphasis added)

It’s an amazingly open-minded essay well worth reading but unlikely to change many minds.

Gay Marriage Strawman 4: I Pronounce You Man and Wife and Wife and Wife

Fourth is a four part series which closes out Pride Month.

I have previously discussed pedophilia and bestiality as slippery slope oppostions to to gay marriage. Another one frequently brought up is polygamy. When in doubt, the man whose name is synonymous with slippery slope (so to speak) metaphors, Rick Santorum is always good for a quote.

“So, everybody has the right to be happy? So, if you’re not happy unless you’re married to five other people, is that OK?”

Rick is prone to these Socratic rhetorical outbursts, but why did he pick that particular example when ‘man on dog’ had been such a winner for him in the past? Well, Eugene Volokh in the Hofstra Law Review explicitly endorses polygamy as a slippery slope gambit.

And as it happens, there probably is a large group of American listeners that neither firmly opposes nor firmly supports same-sex marriage, but pretty firmly thinks that polygamy ought not be recognized, and a smaller but nontrivial group that is open to same-sex marriage but skeptical about at least some kinds of bans on sexual orientation discrimination. People in these groups are thus potentially swayable by the slippery slope argument.

As I mentioned in my last post, the most common definition arrayed against gay marriage is that it is traditionally between one man and one woman. And while I find the gender distinction irrelevant, some people fixate on the ‘one’ part of the circumlocution. They feel that allowing gay marriage could lead to polygamy, not realizing that polygamy exists in lots of countries already, many of them highly opposed to gay rights of any variety, so the connection is tenuous at best. Polygamy is a Biblicly endorsed practice along with slavery and the shunning of menstruating women. As such, it is hardly novel or shocking.

These objections over tradition also seem oblivious to the fact that the religion of the Republican candidate had polygamy as one of its founding tenets, a practice it refuted only just over a century ago even though splinter sects still practice it. And the practitioners don’t go through the motions of civic marriage, even if they could, because that infringes on their gaming of the child welfare system that is part of their economic model.

Polygamy raises the hackles of many people including feminists who find it a patriarchal institution suppressive of women. I doubt you will find many lesbians, single or married, in support of ‘traditional’ polygamy.

The more modern form of multi-partner relationships is called polyamory in order to distinguish it from the older variety, but even it is nothing new as it is just a newer variation on the Free Love and Open Marriage movements which have been around for years. By taking the ‘gamy’ suffix out, it divorces (so to speak) the romantic/sexual relationship from the square traditional concept of fidelity. Also within the concept of polyamory is an implicit acceptance of bisexuality as at least one of the possible permutations.

For the most part, polyamory seems to be for people who just find the emotional tightrope of traditional relationships too easy and need a greater challenge. At least that is my impression from my major source of information on this topic, Dan Savage’s Lovecast podcast. Judging by his listenership the predominant paradigm in these relationships is a primary partnership, which may or may not be a legally married couple, and ‘special guest stars’ of indeterminate duration. The very ephemeral nature of the secondary partners makes absorbing them into the marriage concept complicated to say the least, and most likely unnecessary in the long term.

Conceptually the idea of extending marriage to multiple partners is simply to make marriage contracts non-exclusive. This could lead to all sorts of interlocking directorates of sorts which would really not do much except open new areas of practice for divorce lawyers. This would also require the elimination of bigamy laws which I have no qualms with since I have always considered bigamy its own punishment.

So when someone goes on clambering about how gay marriages are going to destroy society, try to realize how much society has absorbed already. Gay marriage was originally drafted as a conservative measure to draw homosexuals into society. Marriage in any form is a civilizing influence. It creates responsibility and fosters commitment, not just to a person but to a code of behavior and expectations. Love comes is all colors, sizes, and shapes and should be celebrated wherever it occurs and to whomever it happens.

On a personal note, my cousin had her civil union in Delaware on Wednesday. The Delaware rules make a ‘solemnized’ union literally indistinguishable from a marriage. Today four generations of all political stripes will gather to celebrate and honor the creation of a new family. I’m sure it will bring a tear to my eye because I find all brides beautiful and today’s ceremony will be doubly gorgeous.

Gay Marriage Strawman 3: Think Of The Children

Third in a four part series.

One of the most common mantra against allowing gays and lesbians to marry is that marriage is meant to be between one man and one woman. When asked why, the response is that only a man and a woman can make a child. Despite this basic biologically obvious observation, not all men nor all women can make a child. Otherwise an enormous fertility industry would not exist. Nor do all married couples want children despite the best efforts of some to turn back Griswold vs. Connecticut.

If children were the sole reason for marriage, then the logical position would be to deny licenses to anybody who cannot produce a positive pregnancy test result. Indeed, apocryphally (and I cite Jude the Obscure as but one literary example) many marriage proposals in times past not involving the exchange of property occurred only after a metaphorical rabbit had died. For peasant farmers there was no reason to do otherwise. And if marriage was only for raising children the fact that infertile people or post menopausal women can get married proves that there are larger issues than just procreation in the mix.

Recently David Blankenhorn has reversed his position against gay marriage which had largely been based on the pro-procreation argument.

I had hoped that the gay marriage debate would be mostly about marriage’s relationship to parenthood. But it hasn’t been. Or perhaps it’s fairer to say that I and others have made that argument, and that we have largely failed to persuade. In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens.

He makes the case that it is ironic that the gay community is embracing marriage as broader society is becoming more blasé about it, with or without children. 53% of children born to mothers under the age of 30 who weren’t married. Many weddings that do occur now include the children of the bride and groom as members of the party.

And lots of gay couples enter marriage to form families. Despite the biological headwinds they face, they have available the same resources heterosexual couples can take advantage of, adoption, donor sperm, surrogacy, etc. And to say that a gay or lesbian person is not the parent of a child just because they have no genetic material at stake is an insult to any adoptive or step-parent who has ever taken on parental duties.

But having children is not the sole or even primary reason to get married. Many straight couples never intend to have kids. Why should gay couples have to meet some higher standard? Marriage throughout history has had many purposes, exchange of property, insurance of fidelity, political bonding, but the modern notion is that marriages should be based on love and affection. While arranged marriages still occur in many cultures, the Western notion of the love match is taking root through the soft imperialism of popular culture.

And with modern contraception, children are not a necessary nor sufficient reason for a marriage. For two people to get married the necessity nor the possibility of them having children no longer makes any sense as a criteria. A mutual affection and a desire for commitment should be be all that is needed.

How Different Are Adult Children of Parents Who Have Same Sex Relationships? Comment on a study

The starting point for this thread is a comment written by QB on the gay marriage thread. To quote: “Recently a study came out, greeted by a firestorm from the left, refuting claims that children do equally well raised by either a mother and father or by same-sex couples.

I presume that QB is referring to M. Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study”, Social Science Research 41 (2012) 752 – 7750. As my institution has a subscription to Elsevier journals, I was able to download the original article. This is copyrighted material, so I cannot post it in full here. I think it’s fair use to post the abstract as Harvard does that.

Abstract

The New Family Structures Study (NFSS) is a social-science data-collection project that fielded a survey to a large, random sample of American young adults (ages 18–39) who were raised in different types of family arrangements. In this debut article of the NFSS, I compare how the young-adult children of a parent who has had a same-sex romantic rela- tionship fare on 40 different social, emotional, and relational outcome variables when com- pared with six other family-of-origin types. The results reveal numerous, consistent differences, especially between the children of women who have had a lesbian relationship and those with still-married (heterosexual) biological parents. The results are typically robust in multivariate contexts as well, suggesting far greater diversity in lesbian-parent household experiences than convenience-sample studies of lesbian families have revealed. The NFSS proves to be an illuminating, versatile dataset that can assist family scholars in understanding the long reach of family structure and transitions.

This is an excellent example of something worth addressing in greater detail. That is, a non-specialist citing current research. [Edit. I recognize this post is doing exactly the same thing. I can drill down a bit further and have familiarity with the publishing process, so have attempted to discuss it in those terms.] One paper cannot simply refute such claims. Then again, the author doesn’t attempt to do so in this paper. Regnerus does raise some interesting questions.

In my science post some time ago, I discussed the pecking order of journals. SSR has an impact factor of 1.57, a bit on the low side. The author’s decision to submit to SSR rather than a higher profile journal may indicate anticipation of a backlash or that he had trouble getting it into a more highly cited journal such as American Sociological Review (3.7). Elsevier is a highly regarded publisher, so he didn’t just put it in a fly by night journal. The paper was accepted within 4 weeks of being submitted. Also, it usually takes an editor a week or two to assign a paper and get a referee to review it. I seriously doubt this paper had more than a cursory review. That doesn’t mean it’s bad research, but it raises a caution flag when it comes to drawing sweeping conclusions.

There are some legitimate questions that can be raised about this study. Principle among these is false equivalence. The comparison is between “intact biological families” (IBFs) and children who report a parent as having a same sex relationship. These are not directly equivalent. As a classic example, a case where a father comes out of the closet and divorces the mother. A better comparison would be with a failed, heterosexual marriage. The author concedes this point. Quoting from the paper: “Child outcomes in stable, ‘‘planned’’ GLB families and those that are the product of previous heterosexual unions are quite likely distinctive, as previous studies’ conclusions would suggest.” He did not attempt to draw this direct parallel or control for other factors (see below). He does make a strong point in that other opposite sex relationships (step parent, cohabitating) fail to achieve the same outcome as IBFs.

Much of the paper is a data dump. It’s useful as a starting point, but drawing conclusions is challenging. There’s a few oddities. For example, only 61% of children with a lesbian mother identify as heterosexual and 71% of children with a gay father. Only 82% of children of non-IBF or non-GLB parents identify as entirely heterosexual. [Note: this is adoptive, step, single parent or other.] Those are far higher numbers than generally accepted (probably 3% – 5%). Are we talking bi-curious? Having had a same sex encounter at some point? I’m a little suspicious. I don’t know if there’s some sample bias (the author worked very hard to get a large sample size, by the way) or something else is operative. If truly a random sample, a tenfold increase suggests a biological connection or there may be issues with the sample. I’d be interested in seeing how those numbers compare for children in which the parent with custody is homosexual.

Another number. 23% of respondents with a lesbian mother report having been sexually touched by a parent or other adult. This compares with 2% for children of IBFs. Contrast this with the overall estimation for the population of 10% or more. I’d like to see how this particular study compares with other studies, independent of the sexuality of the parent. Heck, 69% of children of lesbian mothers report having been on welfare. There’s some really surprising data there, but no follow through. I don’t think the author performed adequate control checks on his sample. That’s probably an issue of resources.

I’m not questioning the accuracy of Regnerus’s reporting, but rather the depth of the study. Overall, this is interesting work, but far from conclusive. The author makes a strong point that studies need to be performed with larger sample sizes. It does open the prospect to me that there may be statistically different outcomes between a planned GLB family and an IBF.

There are also some strong points for proponents of gay marriage in the study. Regnerus cites previous research that outcomes are better for children of a married, heterosexual couple than for cohabiting couples. I quote from the introduction:

“Social scientists of family transitions have until recently commonly noted the elevated stability and social benefits of the two-parent (heterosexual) married household, when contrasted to single mothers, cohabiting couples, adoptive parents, and ex-spouses sharing custody (Brown, 2004; Manning et al., 2004; McLanahan and Sandefur, 1994).”

Those opposing same sex marriage should consider this point. Opposing it apparently condemns children of those relationships to inferior outcomes, to the detriment of society. I suspect there will be interesting research in the decades to come, particularly when it comes to the outcomes of children of married gay or lesbian parents as opposed to those who can only cohabit due to the laws of their state.

BB

Gay Marriage Strawman 2 – Man on Dog

Second part of a four-part series. Thanks to everyone wishing my cousin well. She has changed her Facebook status, implying that they got married in DC today.

In the first post of this series I mentioned that one of the arguments marshaled by opponents of marriage equality is that it will lead to open practicing of pedophilia. Another frequent slippery slope case made famous by none other than erstwhile presidential candidate Rick Santorum. In the famous interview he said:

In every society, the definition of marriage has not ever to my knowledge included homosexuality. That’s not to pick on homosexuality. It’s not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality —

It was this equating homosexuality with pedophilia and bestiality which prompted Dan Savage to redefine ‘santorum’ in a way that muddied his name forever. But he isn’t even the only presidential candidate to make the connection. Here is Michele Bachmann and Glen Beck making the direct comparison.

This is not to say that there are not proponents and advocates of bestiality. Here is a British documentary on zoophiles. As you might imagine, it’s rough stuff. But they are hardly mainstream and usually much reviled, ridiculed, or pitied. In addition to the general rubric of ‘unnatural acts’ (the same broad blanket which covers homosexuality and non-reproductive heterosexual acts), bestiality invokes the ire of animal rights activists, proving that opposition to the practice is not the sole providence of one end of the political spectrum.

But by equating bestiality with homosexuality, anti-gay rights advocates are literally dehumanizing gays and lesbians. It defines all homosexuality as a perversion of the highest order. This is thankfully now a minority view.

The mere engaging in homosexual acts has been protected since at least Lawrence vs. Texas. The primary reason gay rights advocates want gay marriage for the legal protection it entails. It is the legal benefits of the 1138 legal rights and responsibilities which marriage confers. They include:

Property inheritance without probate
Military and veteran benefits
Medical visitation and decision rights
Legal status in adoption and step-parenthood

If it were only about sex, there would never be an issue. Nobody can prevent you from teaching your dog to lick peanut butter off your genitals, but that is no reason to need to get married. Marriage is about forming legal and permanent and loving bonds. And that is something you can’t do with a dog, cat, horse, sheep, chicken, or gerbil. You can will a pet your entire fortune but you cannot give it a medical power of attorney.

Marriage creates a relationship that cannot be easily duplicated by other means. When one creates a life-bond with a partner it should supersede other previous relationships. The cases where estranged parents make life or death decisions for their gay adult children just because the person’s life partner has no legal standing are heartbreaking. To deny these rights to any couple just because of the gender of who they choose to love just doesn’t make sense.

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