marriage

Mar 3, 2016 ∞

The perils of marriage equality

Professor Kimberly Mutcherson of Rutgers Law School writes at Concurring Opinions about Professor Katherine Franke’s recent book ‘Wedlocked: the Perils of Marriage Equality’:

We do not want to reinforce familial hierarchies by forcing people into specific family arrangements in order to warrant recognition (2 parents only), nor do we want to fetishize outsider families such that those who do not fit that model are denigrated for their choices (i.e., the adoptive parents who choose a closed adoption or the birth mother who opts for such an adoption thus perhaps not being queer enough in their choices). In thinking about the ways in which reproductive justice calls for us to respect the right to have a child, not have a child, or parent that child in a safe and healthy environment, the upshot for me is that the reproductive justice paradigm does not demand that outsider families conform to some particular form in order to help dismantle hierarchy.

I have thought about this concern since undergrad, where postcolonial literature, feminism and even semiotics courses touched on the nature of othering as an active verb, something done to a group of people. I was lucky enough to take a course in law school called Sexual Orientation, Gender Identity and the Law with Professor Leonore F. Carpenter which expanded my understanding and interest in the dynamics of queer identity, family and legal frameworks.

The specific concern with which I’ve been preoccupied since then is that there is a danger in radical acceptance or the success of various equality movements. The danger I see is in achieving a nominal or “seat at the table” equality that normalizes othered groups to the frameworks of the groups that have historically done the othering.

One infuriating example of how I think about this stuff is the so-called equality of separate-but-equal, which of course was not equality at all. In the case of race, equality is not allowing non-white people to do all the stuff white people are allowed to do, but allowing non-white people to do whatever it is non-white people want to do, which is really what has always been allowed to white Americans.

I see Professors Franke and Mutcherson making a similar point about the danger of seeing marriage equality as squeezing queer couples and families into 1) heteronormative cis-gendered and/or culturally/racially segregated family models or 2) altogether new models, sometimes developed by hand-wavingly obnoxious if well-intentioned hetero-cis folks. Maybe I’m mistaken, but the overall approach as I see it being explained by these two scholars is essentially to stop putting up new roads and signs for queer families and just get the hell out of the way.

Read Mutcherson’s entire post, it’s worth it. And I’ve added “Wedlocked' to my Kindle wishlist, which is growing faster than I can keep up.

Apr 29, 2015 ∞

“Super-cuts” from same-sex marriage arguments

SCOTUSBlog contributor Tejinder Singh posted 36 minutes of audio highlights from yesterday’s oral argument in Obergefell v. Hodges. The case is one of several on the Court’s docket this term focused on two specific constitutional questions:

Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

I’ve embedded the super-cut below but if you’re really interested in getting a first-hand sense of how the Justices feel you can find audio of the full oral argument (more than two hours, split into two files) at Oyez. I’ll have more to say about the arguments after I’ve had the chance to listen to them in their entirety.

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Public domain photograph of the Roberts Court via Wikipedia

Feb 9, 2015 ∞

Gay marriage begins in Alabama

Justices Thomas and Scalia were none too pleased that their colleagues refused to continue a stay on same-sex marriages in Alabama pending the Court’s resolution of the issue later this year:

Yet rather than treat like applicants alike, the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor [citation omitted]. This acquiescence may well be seen as a signal of the Court’s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities.

Sick burn. Anyway, Justices Thomas and Scalia aren’t the only robe-wearing opponents of the decision not to continue the stay. As the venerable SCOTUSBlog reported, Chief Justice Roy S. Moore of the Alabama Supreme Court said a in memo that if any Alabama probate judge issues marriage licenses to same-sex couples:

it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests “the supreme executive power of this state,”[citation omitted] to ensure the execution of the law.

In other words, nothing at all would happen.

I propose all of the gay couples getting married in Alabama in the wake of the stay’s denial mail a copy of their wedding portrait to Justice Moore, for good measure.

Documents mentioned in this post:

Jan 23, 2015 ∞

Federal judge strikes down gay-marriage ban in Alabama

I’ll just leave this right here…

Jan 14, 2015 ∞

South Dakota same-sex marriage ban falls

I’ve probably used this line before, but I can’t help myself… Another one bites the dust.

Feb 15, 2014 ∞

Sens. Cruz and Lee Introduce State Marriage Defense Act

At this point the anti-Constitutionalists are trolling themselves. A choice bit from this piece of garbage:

The bill will ensure the federal government gives the same deference to the 33 states that define marriage as the union between one man and one woman as it does to the 17 states that have chosen to recognize same-sex unions.

It doesn’t matter how a state wants to define marriage, whether it’s full of crazy conservatives or mushy liberals. It only matters what the Constitution requires, and that is equal protection under the laws.

All consenting adults with the capacity to validly enter a contract are allowed to marry. Legislating around that fundamental right violates the Constitution.

We’ve been over this.

Sep 26, 2013 ∞

Some oaths are apparently more oathy than others

This is a great article, but this bit is particularly rich. Tyler Bass of Vice’s Motherboard reports the now well-known Petraeus affair with an elegant juxtaposition of facts:

“Oaths do matter,” David H. Petraeus, then C.I.A. director, said at the time. “And there are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy.”

Just weeks later, Petraeus would fall from grace after FBI agents, conducting a separate investigation, discovered emails that revealed an extramarital affair.

Oaths indeed.

May 14, 2013 ∞

Minnesota governor signs same-sex marriage bill into law

Number twelve and counting; this looks to be a big year for marriage equality in the United States.

May 8, 2013 ∞

Delaware becomes eleventh state to approve same-sex marriage

And the steady march continues, as Delaware joins their ten predecessors in granting gay couples the basic American right to marry.

May 2, 2013 ∞

Rhode Island legalizes same-sex marriage

The inexorable march of time sees a tenth state grant gay and lesbian people the statutory right to marry.

Those states who have yet to get on board would do well to hurry: you’re quickly running out of time to look like you were ahead of the curve in the common sense of twenty-first century civil rights.

Nov 7, 2012 ∞

Marriage rights tide turns decisively against US bigots

I hope this is the beginning of an acceleration in the death of “traditional” marriage in the United States of America. Fear, ignorance, and religion are all equally insufficient and shameful excuses to deny universal marriage rights for one more moment.

Oct 18, 2012 ∞

2nd U.S. Circuit Court of Appeals: DOMA violates Equal Protection

Larry Neumeister, for AP:

The 2nd U.S. Circuit Court of Appeals issued its 2-to-1 ruling only weeks after hearing arguments on a lower court judge’s findings that the 1996 [“Defense of Marriage Act”] was unconstitutional.

This is good news. The holding was based on the intermediate scrutiny constitutional standard and declared DOMA violative of Equal Protection.

The dissent in the 2-1 decision came from Judge Chester Straub, who said “courts should not intervene where there is a robust political debate because doing so poisons the political well, imposing a destructive anti-majoritarian constitutional ruling on a vigorous debate.”

It is the duty of a court to intervene where legislation violates constitutional protections, and that is exactly what DOMA does with regard to same-sex marriage.

There is no valid argument to the contrary.

If the Supreme Court fails to strike this law down when it comes to them some time in the next year, and fails to confirm that our Constitution disallows discrimination with regard to who citizens love solely on the basis of a majoritarian religious belief, it will be the darkest legal day in my lifetime thus far.

May 9, 2012 ∞

Remember: 39% of North Carolinians are not fearful and ignorant

The North Carolina amendment alters the constitution to say that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized” in the state.

—CNN

I don’t often take a preachy tone, and this story has little to do with how the law and technology intersect, which is my usual topic on this website. However, I think people should be treated the same, and when they’re not, I get angry. When masses of people vote for something so clearly despicable that it can accurately be called evil, I have to get my thoughts about it out of my system.

And my thoughts about North Carolina’s ban on same-sex marriage are the following:

One day, the descendants of the 61% of North Carolinians who voted discrimination into their constitution today will look back on what their parents, grandparents, and great-grandparents did on Tuesday, May 8, 2012 with disgust, much the same way we do when we read the state’s nonchalant 1875 ban on interracial marriage.

To the 39% of folks in North Carolina who voted with morals, ethics, and plain old common sense:

I implore you, for the sake of your children, to leave your state. Seek refuge from those among your neighbors who would so blight the wonder of democracy.

You are the 39%, who refused to institutionalize hate, to legalize discrimination, to dress up ignorance in the guise of religion, or to use family as a pretext for subjugating a minority. Be proud.