Legally Gay: A Symposium

by: the LJSJ blog team. Special thanks to Bobby Lundberg for photographing the event

On Friday, March 9, 2012, the Law Journal for Social Justice hosted its second annual symposium at the ASU Sandra Day O’Connor College of Law. Over a dozen speakers provided an engaging full day of presentations and discussions that were both informative and a call-to-action.

What follows are several short articles written by various members of the LJSJ blog team to summarize or react to the excellent speakers who presented on Friday.

The day began with some moving, personal comments from Professor Charles Calleros. He set the tone for the day by noting that there are some rights that it is easy for everyone to acknowledge that everyone is entitled to. Few debate that everyone is entitled to the right to be free from emotional or physical persecution due simply to one’s sexual orientation. There are other rights that it should be easy for everyone to acknowledge, but for some reason many do not. It is confounding why some people think that one’s sexual orientation should have an effect on that person’s ability to find work or basic legal recognition for their relationship through a marriage.

Professor Calleros concluded by noting the irony that exists in many states today under the guise of protecting “traditional marriage.” In many states today, two men who love each other could never get married regardless of the depth of their love or the amount of time they spend together. However, one of those same men in those same states could simply pay a $35 fee for an internet certification and be fully qualified to preside over a wedding where the bride and groom have passed no time or commitment tests aside from having differing sets of genitals.

Act I: Love and Marriage

by: Mat Wadsworth

Clifford Rosky advocated that it is time to end “fear of the queer child.” Homophobia is an idea that is at least thousands of years old, but it is slowly being brought to an end. Around the turn of the millennium, anti-gay rhetoric began to shift, making it apparent that “it’s no longer open season on gay kids.” One of the new, subtler anti-gay tactics being used is to question the ability of gay parents to be proper role models for their children. The sometimes not-so-subtle implication is that gay parents will be more likely to raise gay children, and there is something wrong with that.

Historically, the gay-rights response has been to point out the obvious absurdity of the conclusion that gay parents will be more likely to raise gay kids. Most gay people today were raised by straight parents. Mr. Rosky calls this the “empirical challenge.” The gist of the response from gay-rights activists is “we’re queer, but don’t worry, we’re not contagious.”

Mr. Rosky advocates a shift to a “normative challenge.” Rather than challenging anti-gay rhetoric as provably incorrect, gay-rights activists need to question the validity of the question itself. Who cares if gay parents are more likely to raise gay children because what is wrong with gay children? It is not the government’s job to promote either heterosexual or homosexual conduct.

Richard Storrow advocated for stronger anti-discrimination laws to ensure that potential gay parents are provided the opportunity to have children. He pointed out that in general US law is very permissive and puts few restrictions on the ability of gay parents to use Assisted Reproduction Technology (ART). A couple of states have meaningful restrictions on the rights of gay parents to use ART, but such restrictions are not commonplace in the US. Instead, the problem is the ease with which clinics reject potential gay parents through discriminatory internal policies. He advocates for stronger anti-discrimination laws to limit the ability of clinics to use internal screening methods to reject potential parents on the basis of their sexual orientation.

Regina Jeffries discussed the immigration consequences of the Defense of Marriage Act (DOMA). The Immigration and Nationality Act (INA) does not define marriage, yet because of the limitations in DOMA, gay couples are refused the same recognition as straight couples, even if they are legally married. In general, the INA recognizes a couple as married if the marriage was valid in the jurisdiction where it was performed unless the marriage would be illegal in the US. For example, a polygamous marriage is not recognized under the INA because it would be illegal in all fifty states, but a man with several wives could still use his first marriage for immigration purposes. This leads to situations where a US man who married his fifteen-year-old cousin in Iraq may sponsor her for citizenship as his wife, but a US woman who legally marries her non-citizen wife in Massachusetts may not sponsor her for citizenship.

DOMA is in the process of being challenged in the courts on equal protection grounds. However, Ms. Jeffries also advocates challenging DOMA as beyond the scope of the federal government’s power. Nothing in the Constitution gives the federal government the power to regulate marriage, and the definition has traditionally been determined by the states. The federal government overstepped its traditional and Constitutional bounds by defining marriage in DOMA. The equal protection challenge can still be used against state laws that discriminate in marriage, but the more appropriate solution at the federal level is to allow the INA to treat gay marriage like every other form of marriage: it is valid for immigration purposes if it was valid in the jurisdiction where it was performed.

Our thanks to panelists Clifford Rosky, Richard Storrow, and Regina Jeffries

Our thank to moderator Judy Stinson

 

Act II: A Revolution in the Workplace

by: Jack Escobar

Jenn Johnson’s slim frame takes up little of the wide floor of the Great Hall, but her warm, clear voice fills the auditorium. Far from being the  usual dry academic exercise in legal theory and empirical data, Ms. Johnson’s presentation is as vivid and sharp as a storm warning. Her topic: hate crimes. Against a blood-red background, she projects photos of fiery crosses, riot-stricken cities, and a row of nooses hanging from a tree in Jena, Louisiana. These images, she observes, show that prejudice-driven violence is alive and burning in America—and, ironically, directed against a broad cross-section of the populace. Her words are not intended to inform so much as activate. She points out that hate crimes, particularly in Southern states, often go unreported—and that only our collective, active choice to break up the American conspiracy of silence can offer us the hope of peace in our time.

Afterwards, Madelaine Adelman takes the lectern to discuss how this corrosive, silent hatred bleeds into American schools. Gay children, when they are acknowledged to exist, are often crushed by the gears of the eight-hour-a-day total institution that is public education. They are “recruited” into straighthood by the authorities, harassed by their peers, and are worn down by their own search for identity. And, as a perennial political football, the gay student’s school experience is constantly being upset by new policy initiatives, most of them decidedly queer-unfriendly. Under the aegis of cute euphemisms like “Safe Schools” laws, the public schools are made ever more conformist, in the hopes that we will eventually be able to death-march the gayness out of our kids. A possible solution is privatization. If we take education out of the hands of the elected troglodytes, “queer” children might finally have a chance to grow up normal.

Finally, Zachary Kramer delivers a passionate, often funny talk on how the law might begin to place gay Americans on equal footing with their fellow citizens. With true stories of gender-nonconformity suits by butch lesbians and the current work that Congress is doing on new discrimination legislation, he unveils a simple, yet compelling thesis: the law as it stands today is painfully confused and tragically unfair, but it need not be that way tomorrow.

Professor Zachary Kramer noted during Act II that the civil rights movement has made incredible strides in the last fifty years. The equality and basic human rights that have been achieved for traditionally oppressed groups of people in the last fifty years have been truly staggering. There are no more “white” and “colored” water fountains or lunch counters. No employers today would think about posting job ads for which “women need not apply.”

However, just because incredible strides have been made does not mean that the fight is finished. Battles have been won, but the war is not over. Past generations have left us with the responsibility not only to entrench past victories against discrimination, but to continue the fight and continue to advance the fight for equality and basic human decency for all.

Our thanks to panelists Zachary Kramer, Jennifer Johnson, and Madeline Adelman

Our thanks to moderator Zachary Kramer

Guest Lecturer: David Lopez, General Counsel of the EEOC

by: Kevin Heade

P. David Lopez, General Counsel of the U.S. Equal Employment Opportunity Commission (“EEOC”) presented the lunch lecture at the Law Journal for Social Justice’s Spring 2012 Symposium, Legally Gay: The Symposium. Mr. Lopez opened his discussion by talking about going to United Farm Workers’ demonstrations with his father and mother as a young child. As a child, Mr. Lopez had trouble understanding why his father spent so much time organizing with the United Farm Workers Movement.  Mr. Lopez remembers his father telling him that every person has a responsibility for making the world a better place.  Years later, as an undergraduate on a conservative campus at Arizona State University, Mr. Lopez remembers realizing that he had benefited from the struggles of his parents. He realized that he was “standing on the shoulders” of his parents, and that his parents had been “standing on the shoulders” of those that came before them.

Mr. Lopez proceeded to explain how the Civil Rights Movement has accomplished incremental reforms over the last six decades. To illustrate the point, Mr. Lopez noticed how the pictures of the signings of the Civil Rights Act of 1964  contain no women while the pictures of the Lilly Ledbetter Fair Pay Act of 2009 demonstrate a measurable achievements in the movement for sexual equality.

While Mr. Lopez supported the passage of the Employment Non-Discrimination Act (“ENDA”) as a means for strengthening protections against discrimination for the LGBTQ community, Mr. Lopez noted that the failure to pass ENDA does not mean that victims of discrimination in the workplace are left without legal recourse.  Mr. Lopez noted that Title VII of the Civil Rights Act, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act may be utilized to litigate sexual orientation and gender identity discrimination claims until ENDA may be passed.

The EEOC, Mr. Lopez argued, is a major player in the movement for civil rights.  He explained that the EEOC has the largest Amicus Brief program in the federal government.  Mr. Lopez provided examples of EEOC litigation promoting an expanded reading of Title VII sexual discrimination lawsuits to include protections based on sexual identity. Materials from three cases involving the EEOC as litigants or amicae are available on the Law Journal for Social Justice symposium website.

Mr. Lopez concluded his remarks by noting how far the movement for sexual and gender equality has come.  As guideposts signaling achievements directed toward equality, Mr. Lopez brought attention to a 1950 Senate subcommittee report entitled “Employment of Homosexuals and Other Sex Perverts in Government” and a 1953 Executive Order identifying “sexual perversion”  as grounds for investigation and possible dismissal of government employees. Mr. Lopez compared this reprehensible government policy from the 1950s to the current U.S. Office of Policy Management’s Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace.

 Mr. Lopez ended his discussion by referring to Martin Luther King’s Letter from the Birmingham Jail. Martin Luther King’s “hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear-drenched communities and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty” continues to inspire Mr. Lopez’s work. Bi-partisan efforts to promote equality is essential to furthering the LGBTQ civil-rights movement, asserts Mr. Lopez.  He argued that every civil-rights achievement was the product of bi-partisan support.  Pointing to the joining of Former U.S. Solicitor General Theodore B. Olson who represented George H.W. Bush, and David Boies, who represented then-Vice President Al Gore in Bush v. Gore in challenging California’s Prop. 8 in federal court as an example of bi-partisan support for the LGBTQ civil-rights movement.  Mr. Lopez maintains that the future of sexual and gender equality in the United States is bright.

Act III: The Modern Family Finale – sponsored by OUTlaw

Keynote Speaker: Dr. Robert N. Minor

by Ben Helford

Bob Minor’s keynote address spoke of the need to rethink our notions of marriage, in the same sex context and otherwise.  He advised that the notion of “traditional marriage” now used to oppose same sex couples really stems from the idealized notion of marriage from the 1950s: one woman, one man, and children at home.  This is problematic.  Not only is a sixty-year-old ideal of marriage hardly traditional, but this notion of marriage and family was one where people “huddle together” and family becomes something where one does not engage with the greater society.  Going forward, he argued, family should be a base where we engage society, whatever form that family takes.

The respondees took the theories of Dr. Minor’s speech and showed how it works in practice.  Jesse Arieta spoke of how she and her partner have managed in raising three children in El Paso, Texas.  They contend with local right-wing activists led by “ex-gay” pastor Tom Brown, and the context of her own Chicana heritage and extended family.

Peter Coffey spoke of his experience, both as a therapist helping people in all sorts of relationships, and having lived with his own significant other for more than twenty-four years. Despite this, he is prevented from attaining the legal rights that are associated with marriage.

Finally Michael Tucker, speaking as a lawyer, felt that the immediate need for the LGBT community was passing a non-discrimination law, rather than focusing on marriage.  With no law in the state of Arizona addressing this, and the Employment Non-Discrimination Act still not passed through Congress, a member of the LGBT community in Arizona has little recourse when she is fired from her job because of her orientation.

Marriage is what YOU Make It: A Reply to Dr. Robert Minor

by: Sally Johnson

While I agreed with Dr. Minor’s idea that we should expand our view of what a traditional family is, I was concerned with the cynical perspective of what marriage and family currently are: failing institutions, government subsidized ideals, fear-induced roles…

Let me first start by explaining that I do have an extremely high expectation of marriage and family – and yes, *gasp*, it is influenced very strongly by my religion. Also, I am happily married. While no marriage is automatically perfect, I believe that marriage is still amazing – it is full of selflessness, sacrifice, love, trust, and is an infinite growing experience. While I believe that everyone is fallible, I believe marriage has the potential to make us the best people we can be, and I will always hold it on a pedestal. I also hold the idea of a family on an equally high pedestal.

My problem with today’s “traditional” views of “marriage” and “family” is the idea that the government gets to tell us what it is. I am pretty sure the Constitution did not give the government the right to assign our families, and if I somehow missed it and it actually does, what were the Founders thinking?

If the government is going to recognize certain groups of people as families that get certain benefits, then they should grant all groups of people that define themselves as families the same benefits. I know – I am a complete radical – but it should be our personal beliefs that tell us how we define our families, not the government.

Our thanks to panelists Jesse S. Arrieta, Peter Chip Coffey and Michael J. Tucker

Our thanks to moderator Tim Koch

****A VERY Special Thanks to LJSJ’s Executive Symposium Editor, Leah Schacher for her tireless efforts to put on a fantastic Symposium.  Thank you, Leah.

One thought on “Legally Gay: A Symposium

  1. I disagree with Mr. Minor’s characterization of traditional marriage supporters’ definition of “marriage” stemming from the idealization of a 1950’s institution. As a traditional marriage supporter myself, this is not the way I see it.

    It is well known that Charles Montesquieu’s The Spirit of Laws, which he wrote in 1752, was in many ways the inspiration of America’s Founding Fathers for the Constitution. It is one of the most cited documents in the Federalist Papers. Montesquieu was not himself a religious man. Book XXIII of The Spirit of Laws deals entirely with marriage laws, and it nicely sums up both the definition and purpose of “traditional marriage.”

    According to Montesquieu: “The natural obligation of the father to provide for his children has established marriage, which makes known the person who ought to fulfil this obligation.” This is what traditional marriage supporters today believe is the purpose of marriage: to legally attach fathers to their children and their children’s mother.

    Montesquieu goes on to explain: “Illicit conjunctions contribute but little to the propagation of the species. The father, who is under a natural obligation to nourish and educate his children, is not then fixed; and the mother, with whom the obligation remains, finds a thousand obstacles from shame, remorse, the constraint of her sex, and the rigour of laws; and besides, she generally wants the means.” It is true today that the legal and social status of women is different than it was in 1752. However, it remains true today that it is generally more difficult for a single mother to raise her child than it is for a mother to raise a child with the child’s father.

    Montesquieu reasons: “It follows from all this that public continence is naturally connected with the propagation of the species.” Traditional marriage supporters today agree that the government necessarily has an interest in regulating the propagation of the species, and the method that the government uses to do so is called “marriage.”

    Generally speaking, traditional marriage supporters feel that society is better off if people are encouraged to behave in a way that children tend to be born in marriages as opposed to being born outside of marriages. There are many ways the government could encourage men to “buy the cow” instead of trying to “get the milk for free,” and the proper way to do so is definitely up for debate.

    However, I wanted to point out that the concept of “traditional marriage” goes back much further than 1950, or even 1752. In Book XXIII, Montesquieu surveys and compares the marriage laws of many different cultures. Montesquieu speaks of “ancient” Rome, where the obligations and privileges of marriage were in many ways very similar to those in America:

    “[The ancient Roman marriage] privileges were very extensive. The married men who had the most children were always preferred, whether in the pursuit or in the exercise of honours, The consul who had the most numerous offspring was the first who received the fasces; he had his choice of the provinces: the senator who had most children had his name written first in the catalogue of senators, and was the first in giving his opinion in the senate. They might even stand sooner than ordinary for an office, because every child gave a dispensation of a year. If an inhabitant of Rome had three children, he was exempted from all troublesome offices. The freeborn women who had three children, and the freedwomen who had four, passed out of that perpetual tutelage in which they had been held by the ancient laws of Rome.

    “As they had rewards, they had also penalties. Those who were not married could receive no advantage from the will of any person that was not a relative; and those who, being married, had no children, could receive only half. The Romans, says Plutarch, marry only to be heirs, and not to have them.

    “The advantages which a man and his wife might receive from each other by will were limited by law. If they had children of each other, they might receive the whole; if not, they could receive only a tenth part of the succession on the account of marriage; and if they had any children by a former venter, as many tenths as they had children.”

    Unfortunately, I was unable to attend the symposium on Friday. In light of that, I don’t know what – if anything – this adds to the discussion, but it is simply not true that “traditional marriage” is an idea that is only 60 years old.

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