NGTF v. Oklahoma and Early LGBT Rights

With the Supreme Court potentially ready to take on another same-sex marriage case, we see many of the top lawyers in the country clamoring to be involved in whatever case reaches the Court. And not only the lawyers at the LGBT legal organizations that have been doing this work for decades. We see some of the top lawyers at premier law firms involved in these cases now. We see news shows with the plaintiffs discussing their lives and why these cases are important to them.

So it becomes difficult to imagine a time when things weren’t like this. But just 30 years ago the landscape was very different. Before the case of National Gay Task Force v. Board of Education of Oklahoma reached the Supreme Court in its 1984 term, advocates involved had a hard time finding lawyers to take the case and finding individuals who would serve as plaintiffs.

We tend to remember the 1980s as a very hostile time for LGBT rights under the law. Bowers v. Hardwick, where the Supreme Court said that any claim to LGBT rights was at best “facetious” and allowed a state sodomy statute to stand, seems to represent the whole era. Moreover, this was the time when the AIDS epidemic started and the gay community was alternately ignored and demonized. Invisible when they asked for help. Demonized when AIDS threatened non-gay communities. NGTF v. Oklahoma casts a different light on the era. If not a friendlier light, at least one that makes us reconsider our preconceived notions.

In 1977, soon after Anita Bryant succeeded in her campaign to get Dade County to repeal its gay rights ordinance, legislators in Oklahoma began to discuss a bill to restrict gay rights there. In 1978, the Helm Bill passed the Oklahoma legislature and was signed into law by the governor. The bill allowed public schools to fire or refuse to hire anyone for advocating “homosexual activity.” Despite agreeing that the law was unconstitutional, attorneys affiliated with the local ACLU were hesitant to initiate any legal proceedings out of fear that they would not be successful.

Things changed when the Briggs Initiative failed at the ballot in California in November, 1978. The Helm Bill was actually modeled off of the Briggs Initiative, even though the Helm Bill passed first. Gay Rights Advocates, a young gay rights firm in San Francisco, had prepared a court challenge to the Initiative, ready to file if and when it passed. GRA now had the legal framework ready but no case in California. So after an invitation from activists in Oklahoma, GRA agreed to help organize a challenge to the Helm Bill there.

But one of the biggest challenges was finding teachers who would agree to act as plaintiffs. In order to challenge a law in court, you need to show that the law injures you in some way. So GRA could not just walk into a federal court in Oklahoma to argue that the law was unconstitutional. They needed teachers who were actually threatened by the law. But all the lesbian and gay teachers that they could find were not willing to attach their names to a lawsuit. The risk was too great. If the lawsuit failed, the teacher would surely be fired under the new law. Even if the lawsuit succeeded, the teacher might still be fired.

Eventually, the National Gay Task Force took on the role of plaintiff in the case. NGTF provided affidavits in court, certifying that it had members who were teachers in Oklahoma, afraid of persecution under the law. The courts rejected Oklahoma’s arguments that NGTF should not be allowed to proceed on behalf of these anonymous teachers, and so the lawsuit could continue.

The big break for the case came in March 1984, when the 10th Circuit held that the core of Oklahoma’s law was unconstitutional. The 10th Circuit held that the law was too vague when it came to defining “advocating” homosexuality. Did mere mention of homosexuality under any circumstances qualify? Moreover, while the state had substantial flexibility to define the curriculum, this went way too far in regulating teachers’ speech directly. However, the 10th Circuit agreed that Oklahoma could fire teachers for engaging in “public homosexual activity.” The court noted, at least to the extent this was actually only enforced when such acts were in public, there was no question of privacy rights.

In late 1984, the Supreme Court agreed to review the case. Oral argument took place on January 14, 1985. And on March 26, 1985, the Supreme Court affirmed the 10th Circuit by an equally divided vote, 4-4. Because Justice Powell did not take part in the case, there was no binding precedent set. Laurence Tribe, a famous constitutional law scholar who would later argue Bowers v. Hardwick at the Supreme Court, argued the case. And the National Education Association, American Association of University Professors, and Center for Constitutional Rights all filed amicus briefs, showing growing interest in and support of gay rights from a broader public.

Did this partial judicial victory matter? In hindsight, it’s maybe too easy for us to say no. The Supreme Court split, so there was at best a partial signal of its acceptance of LGBT rights. And that was quickly overshadowed by Hardwick, two years later. Some might even argue that NGTF gave gay rights advocates too much confidence going into Hardwick. But along with the defeat of the Briggs Initiative at the ballot box, this did stop an incipient wave of outright witch-hunting. It did send a signal that there were at least limits to what anti gay groups could do. And even as it held that there was no right to homosexual sodomy in Hardwick, the Supreme Court never questioned the conclusion that it was unconstitutional to fire a teacher merely for discussing homosexuality.

I think this case is particularly important as a reminder of how important visibility is. With a potential win on same-sex marriage from the Supreme Court in the coming months, some people want to say “we’ve won, sexuality doesn’t really matter anymore, we’re all the same, time to pack up shop.” But I think that’s the wrong conclusion. If sexuality doesn’t matter and we’re all the same, then we’re invisible as queer people. And if we’re invisible, then we’re easier to repress. And as we should also learn from this case and its juxtaposition with Hardwick, change is uneven and races ahead on some issues while stalling and reversing on others. Any potential win on same-sex marriage does not guarantee other rights.

Fundamental right to choose whom to marry

A federal judge in Alaska struck down the state’s ban on same-sex marriage on Sunday — clearly an urgent matter, for the court to issue an opinion on a Sunday! In a sense, this is the same-sex marriage movement coming full-circle. Alaska had one of the first same-sex marriage cases in the modern wave, post-Hawaii (Brause v. Bureau of Vital Statistics, Alaska Super. Ct. Feb. 27, 1998). And as a result, one of the first state constitutional amendments to ban same-sex marriage. This ruling was not at all surprising, after the Ninth Circuit struck down same-sex marriage bans in Idaho and Nevada last week. Alaska sits in the Ninth Circuit and is bound by that court’s opinions, efforts of the Alaska governor to continue enforcing their law notwithstanding.

But what struck me as I read the opinion was how it described the fundamental right to marriage. I’ve written before about how, as a policy matter, I find equal protection to be a much better basis for protecting same-sex marriage than the fundamental right to marriage (as a doctrinal matter, I think both are sound). My concern is that discussions of the fundamental right to marry often privilege marriage at the expense of other family forms. Marriage is protected because it is the cornerstone of our society, something that everyone should aspire to, and something that we as a nation should value above all else. Yes, of course, if marriage is something that we think everyone should aspire to, I agree that it should be available to everyone. But I worried that the classic description of the fundamental right to marry reified this idea of marriage.

So what struck me about the Alaska court’s opinion was its repeated reference to the “fundamental right to choose whom to marry” (emphasis added). Later in the opinion, it explains “the choice of whom to marry is an associational right” (citations omitted). Most importantly, it discussed Lawrence at length for the proposition that the constitution protects the right to make decisions on personal matters. While it does not explicitly cite the language of “equal liberty” from Lawrence, this citation implicitly links this idea of equal liberty to the fundamental right to marry. The tone of this opinion is much less about the need to preserve marriage as an institution, and more about choice and equality.

I’ve unfortunately been barely able to keep up with the same-sex marriage opinions as they come down, so I can’t say much about how this one compares to other recent opinions. I did check the Ninth Circuit opinion to verify though that the majority there relied on equal protection rather than due process. The Ninth Circuit explained that bans on same-sex marriage fail the test of heightened scrutiny, applicable to laws that discriminate based on sexual orientation (at least in the Ninth Circuit, thanks to SmithKline).

Controversial Events and the Role of Faculty

On Monday afternoon, the Federalist Society at Northwestern Law sent an email to the student listserv, announcing an event titled “Marriage: What it is, Why it Matters, and the Consequences of Redefining it.” The lunch event featured a speaker from The Heritage Foundation and was catered by Chick-fil-A. (Chick-fil-A has a long history of donating to anti-gay causes.) Still, my first instinct was to ignore it. “Delete.” Maybe that’s just a product of being deep in dissertation-land. The only way you survive is by focusing on what really matters and tuning out the rest.

But the listserv quickly exploded in response (If it made Above the Law, you know it had to be juicy). OUTLaw and several other student groups organized a response that included: encouraging law students to attend this lunch event wearing purple, providing food from Chipotle as an alternative to the Chick-fil-A, and organizing a discussion safe space later in the afternoon for people to come together and process their feelings and reactions to the event.

For better or for worse, my schedule prevented me from attending the event myself. But the email explosion got me thinking. I’m expecting to be a professor next year. And given my research, I will likely be invited to speak at events like this (this particular event included commentary from Andy Koppelman). So how would I respond?

The easy part is to actually speak at the event. This is what I do. It’s what I research, it’s what my teaching is on. I’m no stranger to speaking on controversial topics (whether this should still be considered a “controversial topic” is a question for another post), and I’m well seasoned at handling the questions and comments that come with it. It’s important to me to be involved in these sorts of campus events. I’m more than ready for the day when we’re done debating LGBT rights. But as long as we’re debating them, it’s a role I’m willing to fill.

But I think my more important role in an event like this comes after the event itself. It comes as a mentor and a resource for the students–LGBTQ or allies–who are hurt, upset, or just want to talk about the event. It comes in the form of being an out role model for these students. It comes in recommending career paths, internships, volunteer opportunities, and research paths that students might pursue if they are interested. It comes in recommending speakers and events that students might organize in response, and in supervising papers and research that they might take up. It comes in simply having an open office where students can talk.

I particularly like the idea of organizing a discussion safe-space for interested students. This time, student organizations took on this project. But as a faculty member, this is something I could suggest. I think it’s important that faculty not try to restrict the sort of speakers that student groups invite to campus, even if we might personally disagree with them and be tired of a debate. But I also think it’s important that we are willing to provide resources and support to students that want to respond when controversial issues do come up.

Freedom of Speech as the Freedom to Harass?

Freedom of speech has long been important to progressive movements in this country, protecting their right to political voice. I believe a robust freedom of speech plays a key role in our society. But speech also comes up against other rights. In particular, what happens when speech becomes harassment, intimidation, or a threat? How we conceptualize the underlying values behind freedom of speech plays a key role in how we think about this balance. I address this as it comes up in the current case of McCullen v. Coakley and then consider how this matters to LGBT rights.

On January 15, 2014, the Supreme Court heard oral arguments in McCullen v. Coakley. While it is always difficult to predict outcomes based on oral arguments, it seems likely that they will narrow or overturn the Massachusetts law requiring a 35 foot buffer zone around abortion clinics.

The case was brought by Eleanor McCullen, a 77 year old women who spends a substantial amount of her own money traveling to counsel women who seek then decide not to get abortions. McCullen explains that she wants to approach women who are entering Planned Parenthood clinics to provide them with literature and speak with them about abortion. She describes this as engaging with the women directly and compassionately, rather than protesting. McCullen argues that the Massachusetts law inhibits her ability to speak calmly with women entering the abortion clinics. She could only be heard from 35 feet away if she yelled and held signs. According to McCullen, the Massachusetts law thus violates her freedom of speech because it prevents her from speaking with these women in the way that she wants.

Massachusetts passed the law after reviewing extensive evidence of violence and intimidation aimed at women seeking to enter abortion clinics. Massachusetts originally passed a law creating a smaller buffer zone, but amended the law to its current form after complaints from in-state abortion providers that the smaller buffer zone did not provide adequate protection. In particular, providers complained that women seeking clinic access still faced excessive crowds and traffic that blocked clinic entrances. The amended Massachusetts law prevents anyone from remaining within 35 feet of a driveway or entrance to an abortion clinic with exceptions for clinic staff, patients, and anyone using the public sidewalk who just passes through the 35 foot zone. Massachusetts argues that this law protects anti-abortion protesters’ right to protest while also ensuring patient safety.

In oral arguments, lawyers for Massachusetts faced several skeptical questions from the Justices. Justice Scalia’s comments were particularly revealing. Scalia described McCullen’s actions as “counseling” not “protest.” According to Scalia, the 35 foot zone might be justified as applied to typical protestors who hold signs and chant. These protestors can still be readily heard and seen from the 35 foot line and the statute, as applied to these typical protestors, acts to ensure access to abortion clinics. But, Scalia was concerned, the 35 foot line prevents someone like McCullen from engaging in the sort of intimate counseling she wants to engage in. It limits here ability to speak to those who enter the clinics.

Anti-abortion speech is at the heart of freedom of speech. Freedom of speech protects speech even, and especially, when it is controversial and others want to shut the speech out. If Massachusetts tried to completely restrict the speech of anti-abortion activists, that would clearly violate the First Amendment. But does restricting the ability of protestors to speak to particular individuals in a particular place also violate the First Amendment?

Answering this requires thinking about what values we seek to protect through freedom of speech. I argue that freedom of speech (1) protects a robust public dialogue, and (2) protects individual autonomy and self-expression against undue government interference. Starting from these values, I believe freedom of speech means being skeptical of government regulation of speech. Any regulations must meet a high bar. However, these values do not mean that freedom of speech is an absolute. Government regulations might be appropriate when they promote these underlying values. This approach means taking a hard look at how speech is embedded in power relations on the ground.

In upholding the Massachusetts law, the First Circuit addressed these values: “First Amendment rights do not guarantee to the plaintiffs (or anyone else, for that matter) an interested, attentive, and receptive audience, available at close-range.” The Massachusetts law does not limit the public dialogue on abortion and does not infringe on McCullen’s, or anyone else’s, ability to express their beliefs. Scalia was concerned that the law might allow McCullen to protest but prevented her ability to “counsel.” To me, it’s not clear that “counseling” falls within these values of the First Amendment the same way that protest does. Confronting individuals seeking an abortion with pamphlets and “counseling” does not contribute to public dialogue the same way as protest and other speech does. Even if it takes place on a public sidewalk, the type of counseling that McCullen wants to engage in is private communication with individuals seeking an abortion.

In general, we should be highly skeptical of any regulations of speech on public sidewalks. The government should not be able to freely limit where protest can take place. The location of protest is often critical to whether that protest can be heard. If the purpose of the First Amendment is protecting public dialogue, than dissenting speech must be allowed where the relevant public will hear it. However, in this case, Massachusetts had clear evidence that protesters in front of abortion clinics were restricting the ability of clients to reach the clinics. Further, the 35 foot buffer zone does not restrict the ability of protestors to reach the public (the ACLU supports the law in general but recommends remanding to the trial court to consider whether there is sufficient space to protest outside specific clinics in Massachusetts). The purpose of the First Amendment is not to protect all forms of private speech. It is to promote robust public dialogue.

How does this apply to LGBT rights? As states increasingly pass laws on bullying of LGBT students in public schools, we see some freedom of speech challenges to these laws. In addition to physical bullying, these laws often also address verbal and other forms of harassment and threats to LGBT students. Challengers to these laws claim that they unduly restrict their ability to share their anti-LGBT beliefs. As with anti-abortion speech, these beliefs are surely at the core of what freedom of speech should protect. But as with anti-abortion speech, this speech can also be targeted at public dialogue or at individual harassment. Prohibiting a narrow range of speech to protect LGBT students is consistent with the broader values of freedom of speech.

Freedom of speech means protecting the value of public dialogue. It does not mean protecting the ability to speak to an individual. When the state has a compelling interest (in protecting the right of women to an abortion or protecting the safety of LGBT students) it should be able to adopt appropriately narrow restrictions on private speech that are consistent with the broader value of robust public dialogue. This compelling interest test is critical. Labor unions raise the concern in McCullen that a ruling in support of the Massachusetts law could also be used to support a law restricting the right of unions to protest in front of businesses and retail stores. But as the ACLU makes clear, Massachusetts had more than enough evidence of the state’s compelling interest in protecting women seeking abortions. Such evidence might also be found in protecting LGBT students but would not be found in restricting the ability of unions to picket. I argue that this sort of inquiry into how speech fits in broader power dynamics on the ground is entirely consistent with the purpose of the First Amendment and is a proper way to balance the needs of robust freedom of speech with protecting individuals against harassment.

Using an in Class Poll to Generate Discussion

Earlier this week in class, we discussed Gay Rights Coalition of Georgetown University v. Georgetown University (1987). This case started after Georgetown denied recognition to gay student groups at the undergraduate and law campuses. The student groups sued the university, arguing that the university violated the Human Rights Act of D.C. by discriminating based on sexual orientation. The university admitted to the discrimination, but argued that freedom of speech protected its right to not recognize the student groups. As a Catholic University, Georgetown argued, it could not be compelled to recognize student groups that did not fit with its religious beliefs.

We were using this case in relation to studying the history of the ACLU. When it filed the case, the gay student group asked for support from the  ACLU of the National Capital Area (NCA). The board disagreed over whether to support the students or the university and decided to stay out of the case. On appeal, both sides asked the ACLU NCA for support again. Again the board disagreed and stayed out. However, the ACLU national office decided to file a brief in the case on behalf of the gay student group. The executive director of the ACLU NCA also decided to file a brief in the case on behalf of Georgetown, acting on his own behalf and not as an ACLU lawyer. This history provides rich material for understanding how various actors have struggled with the meaning of lesbian and gay rights generally and in the specific context of religious issues. LGBT politics is rife with internal debates and this is one prime example. But to make our discussion productive, we had to avoid getting stuck on personal opinions related to the case.

I started our discussion of the case by passing out notecards to all the students. I told them I was going to read a list of six statements, and I wanted them to write “yes” if they agreed with each statement and “no” if they did not agree. After I read the statements, I would collect all their notecards, shuffle them, and redistribute them randomly. I would then re-read the statements and ask students to stand up if their new card said “yes”. This would give us an instant in-class anonymous poll. (I adapted this exercise from a presentation on a similar exercise used for abortion rights that I heard at the SSSP conference, 2013).

The six questions I used, along with how many students of 17 in class agreed with each. Georgetown should: (1) have full discretion in what student groups it recognizes (8 agree); (2) have to treat all student groups exactly the same (11 agree); (3) have to treat an atheist student group exactly the same as all others (12 agree); (4) give full recognition, funding, and access to university resources to a gay student group (15 agree); (5) give access to university rooms and resources but not have to recognize a gay student group (2 agree); and (6) have to recognize in name only but not give any resources to a gay student group (0 agree).

This activity worked really well to open discussion on the topic. We could physically see the different opinions in the room, which legitimated everyone’s voice. It diffused the need of anyone to share their personal opinion, letting us focus on how the lawyers and courts grappled with balancing freedom of speech against lesbian and gay rights. I think this activity also reduced the chance that any students would feel excluded by the discussion. In particular, I wanted to make sure that more religious students felt included in the discussion. By validating the potential religious/freedom of speech claims, I made clear that this discussion was not about saying which side was “right.”

We built a really productive discussion from this. In particular, students engaged with the first question: should Georgetown have discretion in what student groups it recognizes. Students disagreed as to whether Georgetown should be forced to recognize a gay student group, but most agreed as a moral matter that it should. But they probed how far that would reach. Should Georgetown also have to recognize a white supremacist group? If not, where and how do we draw the line? Is it okay for Georgetown to simply assert that a student group conflicts with its religious beliefs, or should a court at least be able to interrogate if those beliefs are actually sincerely held? Students also grappled with why some people might have answered “yes” to both one and two: Georgetown should have full discretion in what student groups it recognizes, but Georgetown should have to treat all student groups the same.

I think the key to this activity was making clear up front that we would be sharing the answers, but that we would be doing so in a way that was anonymous. It also required that in leading the post-activity discussion, I made sure to frame discussion by using evidence of different opinions as the starting point for discussing the relationship between freedom of speech and lesbian and gay rights. I steered us away from explaining our personal opinions and instead kept us focused on understanding this conflict. I would definitely use this activity again when the goal is to use different opinions to frame a discussion but not actually debate the “merits” of the opinions themselves.

Windsor, Oklahoma, and States’ Rights

One of the major questions in understanding the Supreme Court’s decision in Windsor (which invalidated section three of the Defense of Marriage Act) is what rationale Justice Kennedy was using. Some language in the opinion suggests that Windsor was decided purely as a matter of states rights. Marriage has traditionally been a state issue to define, and within limited exceptions, the federal government has recognized marriages performed by states (one of those limited exceptions being for immigration purposes, where the federal government still interrogates a valid state marriage, but that is not applicable here). In Windsor, Kennedy explained that the Court should be suspicious of a federal law that changed this long history of federal deference to state law on matters of marriage.

However, there is also a strong strand in the opinion of recognizing the dignity of same-sex couples. Read this way, the states rights language is less central. Windsor is more about the ongoing changes in federal equal protection jurisprudence as applied to lesbians and gays than it is about states rights.

I already believed the dignity reading was the much stronger reading of Windsor, but the recent trial court opinion in Oklahoma points out another wrinkle of the Windsor opinion that further strengthens that. In Bishop v. U.S., the federal trial court in Oklahoma held that Oklahoma’s exclusion of same-sex couples from marriage violates the U.S. constitution. Bishop explains that Windsor technically does not rule on whether states can ban same-sex couples from marrying. However, Bishop considers Windsor to be highly persuasive on whether such state exclusions violate federal constitutional rights. An extensive block quote is helpful:

Again, however, the… argument has its limitations. In discussing this traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer “subject to constitutional guarantees.” (Citation to Loving v. Virginia). A citation to Loving is a disclaimer of enormous proportion. Arguably, the “state rights” portion of the Windsor  decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional rights. (emphasis added)

Loving v. Virginia is the 1967 Supreme Court decision striking down state anti-miscegenation laws (laws that prevent interracial marriage). Loving thus explicitly overruled state authority to regulate marriage when state laws violate federal equal protection principles. The state can define marriage, but it cannot define marriage in a way that discriminates based on race. Similarly, Windsor strongly suggests–although it does not explicitly hold–that the state can define marriage, but it cannot define marriage in a way that discriminates based on sexuality.

The Windsor opinion only cites Loving once: “State laws defining and regulating marriage, of course, must respect the the constitutional rights of persons, see, e.g., Loving v. Virginia…” (Windsor at 2691). When I first read Windsor, I missed the significance of this citation. But the Oklahoma case rightly points it out. The Windsor opinion could have just as easily cited Supreme Court precedent upholding a state marriage law for the proposition that state marriage laws are still subject to federal constitutional protections. Such a citation would have placed stronger emphasis on states rights. In a case where the Supreme Court upholds a state marriage law, the note that state marriage laws are still subject to the U.S. constitution serves more as a perfunctory reminder. But by citing LovingWindsor underlines and emphasizes the statement that state laws “must respect the constitutional rights of persons.” Thus, this citation to Loving reinforces reading Windsor  as being more about dignity and equal protection rather than being about state rights.

Fascinating 1946 California Judicial Opinion on Sodomy

My cousin just pointed me towards a 1946 opinion by the California Court of Appeals, reversing an earlier sodomy conviction of my great-great uncle: The opinion is fascinating, both rhetorically and historically. I want to highlight some elements of it and use them to think about the uneven nature of “judicial progress.”

Most striking is the fact that the opinion never mentions sodomy (or other terms such as the “infamous crime against nature”). Instead, we just learn that “The appellant was convicted by a jury of a violation of section 286, Penal Code and of section 702 of the Welfare and Institutions Code.” From there, the whole opinion is about the sufficiency of the testimony of an “accomplice” to support a conviction. Yes, an “accomplice.” The court overturned the conviction because the judge failed to explicitly instruct the jury that the witness was also an accomplice. Accomplice testimony must be corroborated in order to support a conviction. And in fact, the opinion is cited by 14 later opinions according to Westlaw, with the most recent citation being in 2005. These later citations are for various crimes, including theft, assault, and bribery. The later citations are not about sodomy or sexuality.

There is all sorts of rhetorical tension in the opinion over how to describe the “accomplice.” He is also described as the “prosecuting witness” and as a “mere victim.” Let’s be clear about what we know about the facts of the case, from the opinion: Dobkin had sex with a 16 year old man. The 16 year old “accomplice” testified in court that they had sex. Dobkin was convicted on the basis of that testimony. The judge gave the jury general instructions about accomplice testimony (that it must be corroborated) but did not tell the jury that the 16 year old was an accomplice.

By repeatedly focusing on the term accomplice, the court downplays the idea of sexual deviance. Accomplice surely still rings of criminal deviance, but it also suggests consent, and as applied to sexuality even normality. We do see some hints of sexual deviance in the use of “prosecuting witness” and “mere victim.” The victim label is particularly interesting here. The opinion explains that because the witness was 16 years old, the jury might not have know that he could also be convicted of sodomy, and therefore the jury might have assumed he was a victim. So we see a hint of the stock narrative of gay men as predators. But that narrative is only introduced as a concern over how the jury might have interpreted the case. The court focuses on the idea that the witness was an accomplice, an equal, a consenting partner.

What do we make of this? In 1946, we see an appellate court reversing a conviction for sodomy without ever mentioning the crime by name, based on the fact that the “victim” was really an “accomplice.” Surely there are potential concerns with accomplice testimony in this case, but it is in some senses shocking to see a court stressing them in 1946. Our standard narratives of judicial progress tell us of a path from repression to liberation. In this linear narrative, we would not expect to see this pro-gay opinion in 1946. Police abuse and entrapment of gay men continued to be common well into the 1970s and 1980s (and even continues today). Most of these arrests went unchallenged, despite far greater civil liberties violations than jury instructions. And when they were challenged, courts were not always concerned with the use of evidence.

Yet, despite this seemingly shocking nature of the opinion in 1946, it is in other senses entirely consistent with what we know about LGBT history and the nature of judicial progress. First, the history question. It’s only post WWII that we really begin to see consistent persecution of lesbians, gays, and bisexuals. Before that, they were tolerated in many quarters, ignored in others. Occasional persecutions of lesbians and gay men made clear that they were not fully accepted, but they were not singled out for harassment the way they later were. So it is actually historically consistent to see a more lenient treatment of sodomy in 1946 than we see in later decades. Second, the judicial progress question. “Progress” is not linear, either historically or across states. Progress occurs as multiple courts in multiple jurisdictions consider multiple questions. Every court considers myriad factors, including legal doctrine, but also other political and cultural factors. By the time a state supreme court issues a constitutional opinion on an issue like sodomy, lower state courts have probably issued numerous opinions on multiple different grounds.

This conviction is also entirely consistent with what we do know about the historical use of sodomy laws. They were typically not used against consenting adults in private. Instead, they were often used as a sort of “catch all” sex crime law when police could not otherwise prove a sex crime occurred. I don’t know enough about how this case got to court to say definitively, but it appears that underage sex was part of it (again, fascinating that the opinion never mentions age of consent). If this had been two adults, it may have never reached court. But even with an underage partner, the court of appeals threw the case out, treating it as a case of “accomplices.” Fascinating.

Using Google Docs as a Teaching Tool

I’ve been meaning to write a post about a really successful activity I used in discussion sections a few weeks ago. Like all instructors, I sometimes struggle to get discussion going. Ironically, sometimes I struggle with this more with texts that students are initially most excited about. They have all sorts of things to say about what was interesting, unusual, unexpected, etc. in a text. But as soon as I ask a theoretical question, crickets.

I used google docs as part of an in-class exercise a few weeks ago that really got the kind of discussion I hope for going. We were talking about the first seven chapters of D’Emilio and Freedman’s Intimate Matters. These chapters cover pre-20th century sexuality in the United States. A friend who had taught this material before warned me that students read this as a bunch of interesting anecdotes, but had a hard time making sense of the broader arguments running through it.

I started discussion sections with the kind of questions I would typically use: “what was most interesting or compelling?” “What kinds of evidence do D’Emilio and Freedman use?” “Why did they use that evidence?” There are lots of interesting examples in these chapters, so students were eager to jump in with these questions. These questions warmed us up, so we were thinking about what it meant to do history.

Then I asked students to break up into four groups and take out their laptops (I had emailed them the day before to ask them to bring laptops and books to discussion section). I explained that each group was going to focus on only one or two chapters. I would email them a link to a google doc I had already prepared. The google doc had pages for each of the four groups. Each page had headings for “Main Argument”, “Periodization”, “Sources and Use of Evidence”, “Definitions of Sex and Sexuality”, and “Other Interesting or Surprising Notes”. The goal of the activity was (1) to work through the process of making sense of a text like this, and (2) to produce a shared resource that everyone could refer back to later.

I gave them about 15 minutes to do this. As they worked, I floated around the room to answer questions and listen in. But I could also go back to my own laptop and look at the developing google doc. This proved remarkably helpful. I could see when groups were struggling with a section and go ask questions or give suggestions to help them. In particular, a lot of groups struggled with identifying the main arguments. I asked questions about how different chapters were grouping evidence together to show patterns in how the meaning of sexuality was changing. Groups also struggled with the periodization heading. I could see on the google doc that most correctly identified what years their chapters covered. But we wanted to also think about why the authors grouped those years together. What made one group of years into a period, as distinct from the next, and how did this matter to how we understood the overall story of changes in meanings of sexuality?

It wasn’t until after the fact that I realized students could also learn from each other doing this activity. Everyone had access to the same google doc. Just like I could look at what they were writing from my laptop, they could look at what each other were writing. If a group was struggling with how to identify the main argument of their chapter or how to talk about the evidence in it, they could look at what other groups had written. This could give them insight into how to answer the questions for their own chapters.

When we regrouped as a class, I told everyone that we weren’t going to cover everything they talked about in their groups. They could refer back to the google doc for that. Instead, we were going to use the exercise to help us get to questions about how the D’Emilio and Freedman text fit into our class. We started with the question of what their main argument was. Not just individual chapters, but the book as a whole. Students talked about how they were trying to show changes in sexuality, sex, and gender over time. They were hesitant to say this was D’Emilio and Freedman’s main argument, but as we talked about it more, they grew more confident that this was actually an important argument to make.

Then we moved on to questions about what D’Emilio and Freedman were doing that was different from other authors we read. How were they asking new questions? How were they giving us new angles to think about sexuality? How did the authors try to show variation? What purpose did it serve? Students were really engaged in this discussion. The google doc activity gave them concrete data at their fingertips they could draw on.

This is something I will continue to experiment with as one of my teaching tools. Besides generating productive discussion, students seemed to really enjoy this activity. Several commented about it. It gave them ownership over the learning process. Everyone was engaged in this discussion in a way that they are not always.

The Multivocality of Changing State Laws on Marriage

A Gawker headline yesterday announces, “California Children Can Now Legally Have Three Parents“. And indeed, they can. But this headline obscures as much as it reveals. The law it reports, SB 274, recently signed by California Governor Jerry Brown, has all sorts of internal tensions around what parenting means. I want to offer some quick reflections on the law itself and also ask what this means for how we think about changing social and legal norms.

SB 274, as the text of the bill explains, is explicitly aimed at overturning a California court decision. The case, In re M.C., held that the court could only recognize parentage claims of two parents, despite valid claims of three individuals. During a separation from her partner, Melissa became pregnant with M.C. Jesus, the biological father, was supportive. However, Melissa reconciled with Irene and married her before M.C. was born. Jesus remained supportive of the child and occasionally sent child support. Because Melissa and Irene were considered parents, the court denied Jesus’s otherwise valid claim. In re M.C. notes the important roles played by all three individuals and explains that the court would prefer to recognize all three, but the court felt bound by California law.

SB 274 does important work in changing California law to address this situation. But the law is fascinating for how it simultaneously extends the meaning of parent and limits the reach of that change. There are two competing discourses running through the body of this law. The first is the centrality of the dyadic couple as parents (but with same-sex couples now firmly included in this normal). The second is the limited recognition of other arrangements, and in particular, the importance of the best interests of the child.

Despite explicitly recognizing the possibility of three or more valid parents under the law, the whole tone of SB 274 is still based on a presumption of the normality of two parents in a couple as parents. It leaves in place parts of the law that refer to “either parent” or “one or the other parent”, only tacking on additional sections that note that in “rare” instances there might be more than just two parents. But the text stresses that these should be understood as rare. In addition to the instance noted above, the law seems aimed at cases where adoptive parents (same-sex or not) want to recognize the continued role of biological parents, or where artificial insemination is used and the individuals involved want to recognize the role of the biological father.

This is where we see a real tension in the text of the law. The text shifts from explaining how rare these exceptions are to explaining that family law should properly support families as they exist in society. In this second discourse, the purpose of the law is to recognize and support the real and actual parent-child relationships that people create, regardless of how the state might judge those relationships. In particular, the law notes that children suffer real harms when the state fails to recognize these important relationships. In a few places, the law stresses the importance of not using state interests to impose these harms on children. When the state attempts to limit what families it recognizes, it hurts families as they exist.

Despite this second discourse, emphasizing families as they exist in society, SB 274 remains fixed on the idea of the two parent family. It defines the parent child relationship based on a clear legal or natural relationship. It does not address cases where the individuals involved do not have clear legal or biological parenting claims. It does not address cases where parenting relationships change over time. So what happens when future cases come before the California courts involving competing parenting claims of three or more people? If the courts emphasize the “two-parent normality” discourse in this law, they might strictly limit when a third person can qualify as a parent. On the other hand, if the courts emphasize the “recognize families as they exist” discourse, they might expand when a third person can qualify as a parent.

What does this multivocality mean for how we think about changing legal and social norms? It means we cannot think of the state as a unified actor. Even in a single law, we see competing norms of what “parent” means. We see a legislature struggling to respond to social change in different ways. We don’t see a unified debate over what parent means, but instead mobilization of competing sets of definitions and competing norms. Indeed, many people in the legislature probably did not see these discourses as in tension. Explaining change then is not simply a matter of explaining change in a single set of legal norms. Instead, explaining change requires careful attention to the shifting relationships between competing legal norms.

Why do we believe the deadbeat dad narrative so quickly?

I’m teaching Law and Society for the first time this summer. When we talked about what it means to do law and society scholarship on the first day of class, one of the themes we discussed was media and public perception of the law and courts. I used the case of Adoptive Couple v. Baby Girl to illustrate some of my points. This made for a fascinating discussion that is worth some reflection.

At best, the widespread media version of this case has been incomplete. At worst, it has been wildly misleading. I started by telling my class just this skewed media version of the case, not telling them that there was more to the case: the case involves an adoption dispute over a child of a Cherokee father and non-Indian mother. The father of the child was not married to the mother and did not live with her when the child was born. The mother judged that it was in the best interests of the child to put it up for adoption and began adoption proceedings with a couple in South Carolina. The father did not do anything until the adoption was nearly finalized, at which point he challenged the adoption. The father could challenge the adoption, despite never having been involved in the child’s life, because of the Indian Child Welfare Act (ICWA). ICWA gives additional protections to Indian parents and was designed to prevent state agencies from taking Indian children away from their parents / tribes.

I presented this version of the facts to my class and they filled in their assumptions about the rest: the father did not care about the child; he would not be a good father; he was disengaged and had his own priorities; he seems to have been only interested in the publicity this case would bring for himself or his tribe; we should trust the mother’s judgment on adoption being best. The class was sympathetic to the goals of the ICWA, but did not think it should rule in this case. Essentially, the class judged the dad to be a deadbeat dad who was not going to raise the child properly.

The problem is that this story is wildly misleading. After our initial discussion of the case, I filled in more details for my class. Before the child’s birth, the mother represented the child’s race as Hispanic, not Indian, on the adoption form. She also misspelled the father’s name and provided an incorrect birth date, so the Cherokee tribe failed to identify him as a member or notify him. Once the child was born and adoption proceedings began, the father was finally notified days before he was to be deployed to Iraq (he is in the military). When he learned about the adoption proceedings, the father immediately objected, but could not respond further for a year while he was deployed over seas. And in fact, the South Carolina courts had already determined that the father would make a good, caring father and that it was in the child’s best interests to be raised with him. (See the National Indian Child Welfare Association’s webpage on the case for more details.)

Even as I began to fill in these other details, students continued to resist: Okay, so the father was not informed about the adoption the way he should have been, but did he really care about the child? Maybe the mother knew he would be a deadbeat dad? Maybe the father’s military deployment is a valid explanation for why he wasn’t involved in the child’s life for a year, but what was he going to do now? How would he raise the child if he was in the military? Even though the mother planned to put the child up for adoption, and the father wanted to raise the child himself, the class’s sympathies initially remained with the mother. She must know something that we don’t.

As we discussed the full details of the case more, the class’s sympathies shifted. By the end of our discussion, everyone agreed that the father should retain custody of the child. Giving the father custody would protect the original goals of the ICWA: to maintain the integrity of Indian families and Indian tribes. This was really effective for making the point of how media skews public perception of the Supreme Court and the law. One student had read about the case in the New York Times and verified that my initial description of the case jived with what he had read before. I admitted that I had also accepted the mainstream media depiction of the case until recently. The class realized that this wasn’t just a case of the media leaving out some minor details. The choice of facts completely skewed the public narrative of the case.

Partially this speaks to the power of the media. Even though only one student in the class had actually read about the case before I discussed it in class, everyone wanted to believe that the media reporting on it would be generally accurate. The class quickly accepted the general principle that the media might present inaccurate stories, but they still raised lots of questions about this particular case before they accepted that the narrative of this case was inaccurate.

But this also speaks to the power of the deadbeat dad trope. I think it wasn’t simply that the class wanted to believe the media in general. More specifically, it was a lot easier to believe that the mother would know what was best for the child than that the father would. The incomplete facts easily fit into a trope of the father as not caring and disengaged. Overall, it was a great classroom discussion that brought to life for my students the complex ways culture matters to how people think about the law.