Report from “future of marriage law” panel at Lavender Law conference

by on August 30, 2010  •  In Constitutional law, Marriage

I didn't make it to the Lavender Law/LGBT Bar Association conference this year, held this past weekend in Miami. Many thanks to Jillian Weiss, who posted the following summary of a plenary panel on marriage, which included Bill Eskridge (Yale), Shannon Minter (NCLR), Jenny Pizer (Lambda), Therese Stewart (Chief Deputy City Attorney for San Francisco) and Tobias Barrington Wolff (University of Pennsylvania):

One of the most interesting points made was the importance of transgender marriage issues to this area of law, and by extension, to marriage equality generally…. Shannon Minter, Prof. Wolff and Prof. Eskridge [stated] that the current rules become very hard to interpret when the issue of one (or both) partner's gender comes into play. The rules for determining gender are so variable from state to state, and agency to agency, that the arbitrariness of the marriage rules become much more apparent.

This of course raises the concern of many trans people that this colonizes trans experience and utilizes it for the purpose of LGB liberation, while leaving trans people to their shadowy netherworld of discrimination. On the other hand, the interpretation that I favor is that it demonstrates the interconnectedness of the LGB and T community, and rebuts the separatist arguments on both sides of the quadratic equation. Besides, trans advocates don't exactly have clean hands when it comes to the charge of colonizing the experience of intersex people for trans liberation.

There was also an interesting dispute between Professors Wolff and Eskridge regarding the standing issue in Perry. [Background here.] Professor Wolff thought that the Ninth Circuit (and, I assume, the Supreme Court) would find that [the Prop 8 proponents] do not have standing to appeal Judge Walker's verdict. Prof. Eskridge, on the other hand, thought that the courts would find a way to create standing. They didn't give a detailed explanation of their opinions, as it was raised as a bit of a side issue….

Therese Stewart … noted that in another ballot initiative in California, the initiative specifically created an independent commission whose task it is to defend the initiative if it be challenged in the courts. I believe she might have said that the commission would have had to appeal. By contrast, no such commission was created by Prop 8, and so the Governor has a clear right not to appeal further.

Prof. Wolff also differed with David Boies' assertion that marriage equality would be in no worse position if the Perry plaintiffs lose in the Supreme Court. Boies suggested that the situation now is that there is no marriage equality, and a Supreme Court decision would simply affirm that this is status quo and that it would simply be a declaration by the Supreme Court that Perry is not an appropriate case to change that. A later decision by the Supreme Court could overturn that at the appropriate time, or in a more appropriate case. The Court could also provide guidance to litigators as to what an appropriate case might be. Professor Wolff said that he felt that Mr. Boies underestimated the chilling effect of a Supreme Court decision, enshrining a precedent against marriage equality that the Court could be reluctant to overturn in a short period of time. Prof. Eskridge concurred with this point…

The point was also made that the decision in Perry is likely to be made on fairly narrow grounds. It would likely not proclaim marriage equality throughout the land, but be more narrowly tailored to the specific circumstances of the situation in California. [Nan: I concur; so does Jillian.]

During one answer, Prof. Eskridge said that Justice Sotomayor "gets it." I wanted to hear more on this, so I asked why he said that, and how he feels Justices Sotomayor and Kagan will rule on Perry. As I explained in my post on this issue, I think it comes down to them as to which way the Court will go.

Prof. Eskridge noted that he has known Justice Sotomayor for thirty years, and related some anecdotes about her and Justice Kagan to illustrate their gay friendliness, talking about Justice Sotomayor's sympathetic assistance to a gay friend and Justice Kagan's propensity to hire gay law clerks. He said that Justice Sotomayor is likely to be attracted to the standing issue, and that she takes the issue seriously. She also regards the issue of the Court's legitimacy seriously, and will probably not be interested in issuing a broad opinion that imposes the issue on North Carolina and Alabama. At the same time, she will pay attention carefully to the issues and he felt that she would get it right.

Prof. Eskridge also handed out a very interesting sheet discussing, among other things, "theories about the road to marriage equality." He divided these into three:

  • Brown v. Board Triumphalist Theories (e.g., Ted Olson in Perry). Courts will do the right thing.
  • Roe v. Wade Backlash Theories (e.g., Gerald Rosenberg). Court victories create backlash.
  • Loving v. Virginia Equality Practice Theories (e.g. Mary Bonauto in Gill). Step by step.

He agreed with the third one, and made a very dry joke about the fact that the Supreme Court had several opportunities over thirty years to reverse the Virginia miscegenation statute, but declined to do so until the Loving case in the Sixties. "So, yeah, the court will do the right thing." The audience roared, as did I, made all the more funny by the fact that Prof. Eskridge's very serious demeanor hides a wicked sense of humor.

He also said that there are three institutional lessons about court rulings:

1. Public opinion matters (a lot)

2. Inevitability and productivity of interactive politics

3. Role of courts = reverse the burden of inertia

As I understood his points, he was saying that public opinion is important in the sense that courts don't want to get too far ahead of public opinion. It's not that judges look at public opinion polls, but they have a general sense of it, and they want to use law-like decision-making and also write decisions that they (and the government and the public) can live with. On the second point, I think he meant that the exchange of views in different types of political venues, like various courts and legislatures and media, create a more productive politics that moves the ball forward. On the third point, he said that when courts make decisions on specific issues, like marriage equality, even if the decisions are later changed or reversed, that puts the issue on the public agenda, again moving the ball forward.


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