Dropping the Other Shoe:Obergefelland the Inevitability of the Constitutional Right to Equal Marriage
TL;DR: The U.S. Supreme Court "dropped the other shoe" in Obergefell v. Hodges by declaring the exclusion of same-sex couples from marriage at the state level unconstitutional as discussed by the authors.
Abstract: After having invalidated the federal Defense of Marriage Act (DOMA), the U.S. Supreme Court “dropped the other shoe” in Obergefell v. Hodges by declaring the exclusion of same-sex couples from marriage at the state level unconstitutional. Written by Justice Kennedy, the majority opinion heavily relied on the dignity-bestowing character of marriage to show why this exclusion is so harmful. But this strategy comes with a cost: it inflicts a stigma even as it conveys recognition—a drawback that an equality analysis can avoid. Respondents had argued that opening marriage dangerously disconnected marriage from procreation, both the historical reason for and the essence of marriage. In finding that they had failed to provide evidence for the harmful outcomes they described, the majority not only provided the rational basis test with a new kind of “bite.” It also asserted that tradition or religious beliefs were not enough to justify exclusion. Once secular purposes define marriage and rational reasons are required to regulate access, the road to marriage equality opens wide. As the line of cases leading up to Obergefell suggests, and developments in Germany, Austria, and other jurisdictions confirm, equality works as a one-way ratchet—albeit without necessarily including polygamy and incest. Crucially, equality changes the focus: From an equality perspective, the harm lies not in the exclusion from a dignity-conferring institution, but in the suggestion that the excluded group is not worthy of participating in it and does not deserve the recognition and benefits associated with it. Instead of aspiring to achieve dignity through marriage, in this view same-sex couples claim recognition as free and equal citizens. Discrimination on the basis of race, gender, or sexual orientation subsumes an individual under a group category whose purported characteristics are systematically devalued, thus refusing to appreciate a person as an individual. It is this denial of recognition that conveys harm to the dignity of the individual above and beyond the respective disadvantage suffered. Thus taken with equality, dignity does not have the exclusive effect it has in isolation, as struggling against degrading exclusion stresses common traits.
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TL;DR: In this article, the Court of Justice of the EU (CJEU) is criticised for focusing on direct discrimination and the comparator paradigm, and for tolerating a situation of de facto discrimination and limited advancement of same-sex rights.
Abstract: The article analyses possibilities for the Court of Justice of the EU to go beyond its current narrow approach towards same-sex couples’ rights within the EU non-discrimination law framework, considering a comparative treatment of dignity-based arguments. It critically reviews the CJEU’s current approach exclusively focusing on direct discrimination and the comparator paradigm. By doing so, the Court has tolerated a situation of de facto discrimination and limited advancement of same-sex rights. The question is then whether the situation could be overcome if the CJEU would follow other courts and develop reasoning based on dignity to underpin the EU non-discrimination analysis with substantive meaning. The article rejects this proposition. Dignity is not suitable because it is both too wide and to narrow to ensure certainty and substantive protection within EU non-discrimination law. While the concept of dignity protects a minimum standard and can provide a floor of rights, non-discrimination law ...
9 citations
Cites background from "Dropping the Other Shoe:Obergefella..."
...Same-sex couples do not seek dignity by marriage, they challenge the assault on their dignity, as the law denies them equal access (Markard, 2016, p. 537)....
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...The judgment has rightly been criticised for uncritically elevating marriage and suggesting that non-married people live a less dignified lifestyle (Markard, 2016, pp. 515–516; Tribe, 2015, p. 31)....
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Posted Content•
TL;DR: Goldfarb as discussed by the authors examines the construction of gender roles in the discourse on intimate violence and argues that this discourse assumes that male violence against female intimates represents the problems of battering in its entirety.
Abstract: In this Article, Professor Goldfarb examines the construction of gender roles in the discourse on intimate violence. The Article argues that this discourse assumes that male violence against female intimates represents the problems of battering in its entirety. In doing so, the discourse renders invisible the battering that occurs outside this discourse, most notably battering within same-sex relationships. The Article focuses on how the gender assumptions in the domestic violence discourse affected the representation of the Framingham Eight, a group of women who killed their batterers and were incarcerated in the women's prison in Framingham, Massachusetts. These women petitioned as a group for the commutation of their sentences. Seven of the women had killed their male partners; one had killed her female partner. Professor Goldfarb discusses why the lesbian petitioner faced the longest odds in her struggle to be seen and heard. First, the Article describes the phenomenon of intimate violence in same-sex relationships. Next, the Article explores how and why the contemporary discourse of intimate violence is gender-specific. After identifying a need for the expansion of the conversation on intimate violence, the Article suggests enumerating parallel discourses that are tied to their particular and varied contexts. Last, the Article discusses the professional responsibility issues implicated when an attorney represents a client who conforms to gender stereotypes that inflict harm on others.
9 citations
TL;DR: In this paper, the authors discuss the recent judgment of the German Constitutional Court (1 BvR 2019/16) requiring either the legal recognition of sex categories beyond male or female, or the aboltion of sex registration requirements.
Abstract: This Case Note discusses the recent judgment of the German Constitutional Court (1 BvR 2019/16) requiring either the legal recognition of sex categories beyond male or female, or the aboltion of sex registration requirements. The Note considers the Court's decision within the broader constitutional case law on gender identity, and explores both the progressive potential, and the future—perhaps unforeseen—consequences, of the ruling. The Case Note proceeds in three sections. Section A introduces the facts of the constitutional challenge, and sets out both the submissions of the complainant, as well as the reasoning of the Constitutional Court. In Section B, the Case Note explores the domestic law novelty of the decision, placing particular emphasis on the application of a constitutional equality framework to persons who experience intersex variance. Finally, in Section C, the Case Note contextualizes the judgment, situating the reasoning of the Constitutional Court within wider movements for transgender—otherwise known as trans—and intersex rights.
9 citations
TL;DR: In this paper, a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation is presented, and the authors draw lessons about how and why arguments become risky in social justice cases and whether they should be made nonetheless.
Abstract: This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument’s evanescence in contemporary marriage litigation, I draw lessons about how and why arguments become risky in social justice cases and whether they should be made nonetheless. This context is particularly fruitful because some judges, advocates and scholars find it “obviously correct” that laws excluding same-sex couples from marriage discriminate facially based on sex or impose sex stereotypes. Yet advocates have tended to minimize these arguments and most judges either sidestep or go out of their way to reject them.Certain kinds of arguments, including the sex discrimination argument in marriage cases, turn out to pose greater risks than others because they ask decisionmakers to confront long-settled social hierarchies and norms, such as those associated with gender roles. As a result, they risk inciting Burkean anxieties about the dangers of non-incremental change. Arguments that ask less of decisionmakers, such as those about animus associated with a particular enactment – or that have a more limited reach, such as heightened scrutiny for sexual orientation at a time when few explicitly antigay laws remain – are less likely to provoke that discomfort. Moreover, a win on these narrower arguments can effectively erode stereotypes and norms underlying a challenged law or social policy. In marriage cases, for example, a pro-equality ruling helps call longstanding marital gender roles into question even if the court’s decision never mentions sex discrimination. Still, risky arguments add value within litigation by powerfully calling attention to deep problems that underlie a challenged law. Through close study of these costs and benefits, the risky argument frame advanced here aims to illuminate the complex dynamics of argumentation in the litigation and adjudication of social justice cases.
8 citations
TL;DR: In this paper, the authors provide a detailed critical analysis of the case of Coman, where the Court of Justice clarified that the meaning of the term "spouse" in Directive 2004/38 was gender-neutral.
Abstract: This paper provides a detailed critical analysis of the case of Coman, where the Court of Justice clarified that the meaning of the term ‘spouse’ in Directive 2004/38 was gender-neutral, opening up...
6 citations
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TL;DR: This paper used the National Longitudinal Study of Adolescent Health to assess the well-being of adolescents in cohabiting parent step-families (N= 13,231) and found that adolescents living with co-habiting stepparents often fare worse than teenagers living with two biological married parents.
Abstract: Cohabitation is a family form that increasingly includes children. We use the National Longitudinal Study of Adolescent Health to assess the well-being of adolescents in cohabiting parent stepfamilies (N= 13,231). Teens living with cohabiting stepparents often fare worse than teens living with two biological married parents. Adolescents living in cohabiting stepfamilies experience greater disadvantage than teens living in married stepfamilies. Most of these differences, however, are explained by socioeconomic circumstances. Teenagers living with single unmarried mothers are similar to teens living with cohabiting stepparents; exceptions include greater delinquency and lower grade point averages experienced by teens living with cohabiting stepparents. Yet mother's marital history explains these differences. Our results contribute to our understanding of cohabitation and debates about the importance of marriage for children.
347 citations
TL;DR: The results show that children of same-sex couples are as likely to make normal progress through school as the children of most other family structures, and heterosexual married couples are the family type whose children have the lowest rates of grade retention.
Abstract: I use U.S. census data to perform the first large-sample, nationally representative tests of outcomes for children raised by same-sex couples. The results show that children of same-sex couples are as likely to make normal progress through school as the children of most other family structures. Heterosexual married couples are the family type whose children have the lowest rates of grade retention, but the advantage of heterosexual married couples is mostly due to their higher socioeconomic status. Children of all family types (including children of same-sex couples) are far more likely to make normal progress through school than are children living in group quarters (such as orphanages and shelters).
162 citations
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Journal Article•
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