Intersectionality: African Americans, Religion and Marriage Rights for the LCBT Community in California

Intersectionality analysis serves as a reminder of complexity in even the most seemingly straightforward issues. This is particularly the case among communities that share a sense of oppression or subordination but perhaps little else. It is also a complicating factor when the issue involves communities that share some of the characteristics of subordinated and some of the characteristics of subordinated communities. That appears to be the case with respect to same sex marriage in California. A recent New York Times article highlighted the tension within two politically progressive communities joined in the struggle against subordination but separated by a difference in understanding of what ought to be privileged and what not in the greater struggle. See Jesse McKinley, Same Sex Marriage Ban is Tied to Obama Factor, New York Times, September 21, 2008, at A-18.. But the issue is complicated. While the African American community appears to be partial to a particular perspective in California, some leaders of the African American community in Georgia have seen things differently. See Andrew Jacobs, Black Legislators Stall Marriage Amendment in Georgia, New York Times, March 3, 2004. The politics of inrtersecitonality will find a valuable laboratory in the coming weeks in California.

Michigan Supreme Court Decision on Domestic Partnership Benefits

In a 5-2 decision, the Michigan Supreme Court has held that the state's constitutional amendment providing that "the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose" prohibits public employers in Michigan from providing health-insurance benefits to their employees' same-sex domestic partners.

Read the decision here:

http://courts.michigan.gov/supremecourt/Clerk/11-07/133429/133429-Opinion.pdf

Mildred Loving has died

Mildred Loving, who along with her husband fought Virginia's anti-miscegenation statute all the way to the U.S. Supreme Court in Loving v. Virginia, has died.

The following statement, released by Mrs. Loving last year, on the 40th anniversary of Loving v. Virginia, tells you all you need to know about this remarkable woman:

Loving for All

By Mildred Loving

Prepared for Delivery on June 12, 2007,The 40th Anniversary of the Loving vs. Virginia Announcement

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married.

We didn’t get married in Washington because we wanted to marry there. We did it there because the government wouldn’t allow us to marry back home in Virginia where we grew up, where we met, where we fell in love, and where we wanted to be together and build our family. You see, I am a woman of color and Richard was white, and at that time people believed it was okay to keep us from marrying because of their ideas of who should marry whom.

When Richard and I came back to our home in Virginia, happily married, we had no intention of battling over the law. We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?

Not long after our wedding, we were awakened in the middle of the night in our own bedroom by deputy sheriffs and actually arrested for the “crime” of marrying the wrong kind of person. Our marriage certificate was hanging on the wall above the bed. The state prosecuted Richard and me, and after we were found guilty, the judge declared: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.” He sentenced us to a year in prison, but offered to suspend the sentence if we left our home in Virginia for 25 years exile.

We left, and got a lawyer. Richard and I had to fight, but still were not fighting for a cause. We were fighting for our love.

Though it turned out we had to fight, happily Richard and I didn’t have to fight alone. Thanks to groups like the ACLU and the NAACP Legal Defense & Education Fund, and so many good people around the country willing to speak up, we took our case for the freedom to marry all the way to the U.S. Supreme Court. And on June 12, 1967, the Supreme Court ruled unanimously that, “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” a “basic civil right.”

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God’s plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation’s fears and prejudices have given way, and today’s young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

How to Take Things Out of Context

The New York Times Magazine had a wonderful article about young gay men getting married to one another in Massachusetts. You can read the article here:

http://www.nytimes.com/2008/04/27/magazine/27young-t.html?ei=5087&em=&en=9e7defb1e57bd2db&ex=1209528000&pagewanted=all

And here is the Christian Post's analysis of the article, using it as proof that same-sex marriage will change heterosexual marriage...for the worse:

http://www.christianpost.com/article/20080428/32146_The_New_Face_of_Gay_Marriage.htm

Oklahoma and its "Homosexual" Problem

Americans have a lot to worry about. Not since the 1950s ave Americans been assaulted by so many threats at home an abroad. There is danger in every space available for such things. Even the insides of our heads are not safe.

Fortunately, there are any number of people ready to watch and warn of new dangers--meteorologists, newscasters, pundits, soothsayers, and now an esteemed member of the Oklahoma legislature. lA state legislator from Oklahoma has finally focused the nation's priorities correctly. It is not terrorism, nor religion (that is, religion not her own), nor even the economy or the desperate position of native peoples in Oklahoma. No, the critical issue facing the people of Oklahoma is the threat of homosexuality. From Wikipedia:

Sally Kern (born 27 November 1946, Jonesboro, Arkansas) is an Oklahoma state legislator from Oklahoma City. Kern, a member of the Republican party, represents House District 84. A former teacher, she graduated from the University of Texas and East Texas State University. She is married to Steve Kern, pastor of Olivet Baptist Church. . . . . , Kern made national headlines when she stated "I honestly think [homosexuality is] the biggest threat our nation has, even more so than terrorism or Islam - which I think is a big threat, OK? Cause what's happening now is they are going after, in schools, two-year olds...And this stuff is deadly, and it’s spreading, and it will destroy our young people, it will destroy this nation." After receiving attention for the remarks, Kern said "I said nothing that was not true" and refused to apologize.

Wikepedia, Sally Kern. For the video of the comments, see Anti-gay stance hits YouTube: An Oklahoma lawmaker's anti-gay comments are attracting national attention.
For discussion of the lawmaker's reactions to exposure and her refusal to apologize for her remarks, see, e.g., Kern vows not to apologize for remarks against homosexuals; Oklahoma State Rep.: Gays “Biggest Threat” to U.S.; PlanetOut online news; JMBzine: Rep. Sally Kern responds to anti-gay hate speech.

It is refreshing, I suppose, to experience "old timey" queer baiting in one of its more pristine forms. The old nostrums about gay predators have been a long time dying. Now it seems that idea is making a come back. For a discussion, see Larry Catá Backer, Inventing a ‘Homosexual’ for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, 71 Tul. L. Rev. 529 (1996). In the old days, the idea of sexual non conformists as pied pipers was quite current. And the idea that teaching tolerance would open the door to greater acceptance of the blandishments of these Swengalis commonly accepted as part of the so called homosexual agenda. Now the old days are back again--at least in Oklahoma. Of course Representative Kern has no reason to apologize. She means every word she said. And she believes them, too. And that is the tragedy, and the threat. While many in the LGBT community have been focusing on second and third generation issues--marriage, social acceptance, etc.--the first generation issues remain quite potent. In that context, the threat of violence remains high, and the use of the state to enforce sectarian norms even higher. As Representative Kern's spouse might agree, the likely language of the contest for influence will be religious, rather than political, scientific or secular. See Larry Catá Backer, Religion and the Discursive Language of Same Sex Marriage, 30 Capital University Law Review 221 (2002).

An Interesting Blog Post By Jose Gabilondo

Our colleague at Florida International University, José Gabilondo, has just published some interesting thoughts on his new blog, appropriately titled, Professor Gabilondo's Blog. The title of this essay is Gay Babies? Donn'e Moi a Break.

Professor Gabilondo raises a question made possible only by technology--the consequences of being able to choose the sexual reorientation of a baby. In a world in which choices are already being made about the sex of infants to be conceived and brought to term, the question has a number of interesting eddies and ramifications.

Marriage Symposium

Last fall, the Rutgers Law Review held a symposium, "Same-Sex Couples and the Exclusive Commitment," inspired by the New Jersey Supreme Court's decision, Lewis v. Harris, 908 A.2d 196, Rutgers website (N.J. 2006), which held that New Jersey must provide same sex couples with marriage or a legal equivalent. If you're keen to read about marriage issues, the symposium articles are available here.

The articles present a range of opinion, but first one I looked at (George W. Dent, Jr., How Does Same-Sex Marriage Threaten You?, 59 Rutgers L. Rev. 233) got my dander up. It took the position that same-sex marriage is a threat to society because heterosexual marriage is important for reproduction and child-rearing and, ultimately, social stability. Well, it was my bad luck for choosing that article: I'd thought it would finally explain to me how same-sex marriage threatens heterosexual marriages (the author didn't really mean to include me in the "you" of his title), but it didn't.

I suppose we all choose what to believe based on our existing beliefs and assumptions. I believe the studies that say that kids do pretty well with gay or lesbian parents. On the other hand, Prof. Dent believes the people who say that those studies are flawed. He believes that "Children conceived by artificial reproductive technologies and reared apart from one or both biological parents 'hunger for an abiding paternal presence.'" (59 Rutgers L. Rev. 233, 242)

In this instance, I have a lot of social scientists on my side. The American Psychological Association filed an amicus brief in Lewis v. Harris (as it has done in many cases, including the marriage equity cases here in Washington). The APA summarizes:

APA's brief provides the Court with the scientific and professional literature pertinent to the issues before the Court. * * * The brief addresses the extensive psychological literature that has found no difference between same-sex and heterosexual couples on characteristics such as levels of intimacy, feelings of commitment and desire for relationships * * * .

Additionally, the brief addresses the large number of children raised by lesbians and gay men, both in same-sex couples and as single parents. APA takes the position that ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents.

Unlike past APA briefs supporting same-sex couples, this brief also addresses the social and psychological benefits – to both gay and heterosexual people – of marriage as an institution. The brief states that allowing same-sex couples to marry would give them access to the legal, social, and economic support that already facilitate and strengthen heterosexual marriages as well as end the antigay stigma imposed by the State through its same-sex marriage ban. Also addressed are invalidities in the research presented by opponents of same-sex marriage.

In summary, the APA brief states that there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage.

The full brief is available here.

This raises issues of cognitive authority. Why do I believe "my" experts while he believes his? He did have footnotes to support his statements, after all -- it's not that he made it all up. I'm not inclined to believe his experts because I'm committed to believing that I'm OK, my relationship is OK, and my relationship doesn't really jeopardize society. For his part, he's not likely to believe the experts cited in the APA's brief. Before believing them, he would probably counter that the APA (or at any rate the APA's leadership that agrees to amicus filings) has been taken over by benighted fools who can't judge research, or mischaracterize results to suit the GLBT community.

What does it take to change one's beliefs, to be open to the long string of studies the APA cites rather than the books and articles Prof. Dent cites?

The mayor of San Diego changed his mind, apparently because was able to generalize from his lesbian daughter to all the people excluded from the straights-only marriage law. Sanders changes mind on gay marriage: Mayor supports effort to overturn state ban, Union-Tribune, Sept. 20, 2007.

Not everyone will have an LGB or T family member -- but more and more people know that they know, respect, and like bent folks, and that makes them more open to changing their beliefs about social science, policy, and law.

Speaking of developing public awareness:

Thanks to Outlaws for today's activities in celebration of National Coming Out Day! It was great to see people around the law school wearing badges proclaiming their support of LGBT rights. I didn't get a chance to pick up my sticker until late in the day, but I have it now: "I DO Support Marriage Equality."

The Same-Sex Marriage Debate and Indian Country

I came across the law review title "Same-Sex Marriage, Indian Tribes, and the Constitution," and couldn't resist skimming it (Matthew L.M. Fletcher, 61 U. Miami L. Rev. 53 (2006), on Westlaw here).

The author begins with a 19th century state case recognizing a polygamous marriage among Chippewa Indians because the tribe at that time recognized such marriages. He uses that as a springboard into the same-sex marriage debate and what it could possibly mean for tribal sovereignty. Pieces of the puzzle:

• After Goodridge two lesbians applied for (and were denied) a marriage license on the Cherokee reservation. Their appeal was dismissed on procedural grounds.
• The Navajo Nation passed a Defense of Marriage Act.
The federal DOMA explicitly mentions Indian tribes as sovereigns that don't have to recognize marriages recognized by other states and tribes.
• Drafts of the proposed constitutional amendment to preserve marriage as heterosexual only do not mention Indian tribes.

Much of the article is speculative -- what if a constitutional amendment DOMA passes? what if there were a federal law requiring recognition of same-sex marriages, what if some tribes recognized such marriages? -- so speculative that I had a "so what?" reaction. But it is a good reminder that we're looking at a lot more sovereigns than 50 states, DC, and the federal government.

If someone registered as a domestic partner in Washington State is hurt on the Yakama Nation reservation and taken to a clinic there, does the partner get to visit and make decisions?

Legal Challenge to Seattle Executive Order Recognizing Same-Sex Marriages

In 2004, Seattle's Mayor signed an executive order directing all City departments to recognize same-sex marriages entered into by its employees in other states or countries for the purpose of granting employee benefits. The executive order can be found here:

http://seattle.gov/mayor/executive_orders/cityrecognitionofvalidmarriagelicenses.pdf

In response, the California-based Pacific Justice Institute (http://www.pacificjustice.org/) filed suit, claiming that the Mayor's actions violated Washington's Defense of Marriage Act. In pertinent part, the act (R.C.W. 26.04.010) provides as follows:

"Marriage is a civil contract between a male and a female who have each attained the age of eighteen years, and who are otherwise capable."

The trial court rejected the challenge. PJI filed an appeal, but then put their appeal on hold pending the Washington Supreme Court's ruling on the constitutionality of Washington's Defense of Marriage Act. After the Washington Supreme Court upheld the constitutionality of the Act, PJI revived its appeal, which was recently argued before the Washington Court of Appeals.

You can find the Mayor's public defense of the executive order's constitutionality here: http://www.seattle.gov/mayor/issues/gay_qa.htm. The first part of his defense--that the Defense of Marriage Act is unconstitutional--has been rejected by the Washington Supreme Court (although the Washington Supreme Court did not reach its constitutionality under the Federal constitution, only the state one). But the second part of his defense would still seem to hold: that nothing in the Act purports to preempt a city law such as the executive order.

It seems like a no-brainer of a case, but I have not been able to get my hands on any briefs in the case. Any thoughts on the issue?