Constitution Day and Other Upcoming Speaking Engagements

I am pleased to be giving a talk on Burwell v. Hobby Lobby tomorrow, September 17, at a Constitution Day event sponsored by the University of Denver Chaplain. More information about the event is available here.

I thought I’d also take this opportunity to mention a few other speaking engagements I have coming up this semester.

On October 2-4, I’ll be participating in a wonderful symposium at the UCLA School of Law to discuss the impact of Cheryl Harris‘ groundbreaking article “Whiteness as Property,” which the Harvard Law Review published in 1993. My panel will discuss the idea of entitlement and its intersection with the law. My copanelists include Tristan Green (USF), Camille Gear Rich (USC, visiting at Stanford), Osamudia James (Miami), and Leticia Saucedo (UC Davis).

On November 14-15, I’ll be participating in the seventh annual ClassCrits conference, which will be held at UC Davis. My panel, called “The Discourse of Inequality,” also includes Camille Gear Rich (USC, visiting at Stanford), Neil Gotanda (Western State), and Anthony Paul Farley (Albany, visiting at Kentucky).

On November 21-22, I’m presenting at the 2014 University of Wisconsin Discussion Group on Constitutionalism. The discussion group’s theme is “Judicial Supremacy and Its Critics.”

I’ll post more about each of these events as they approach.

The Other Marriage Discrimination, in Singular Magazine

Singular Magazine has published a slightly modified version of my piece on bias and discrimination against single people. (The original piece appeared on Huffington Post.) Speaking as a non-single person, I recommend Singular more generally as one perspective on issues that tend to affect single people.

“Gender Discrimination and Same-Sex Marriage”: forthcoming in Columbia Law Review Sidebar

I’ve coauthored a short essay with my University of Denver Sturm College of Law colleague Ian Farrell — “Gender Discrimination and Same-Sex Marriage” — and am now pleased to share that the piece will be forthcoming in the Columbia Law Review Sidebar. (For non-legal/non-academic folks, the Sidebar is the online companion to the traditional print format of the Columbia Law Review.) I’ll have more details about the timing of publication soon.

I’ve previously written about the gender diversity argument (or do I mean “argument”) against same-sex marriage here on nancyleong.com and on Prawfsblawg.

“Negative Identity”: Forthcoming in the Southern California Law Review

I’ve very pleased to announce that I have accepted an offer to publish my article “Negative Identity” in the Southern California Law Review. I look forward very much to working with the bright and dedicated students at USC.

A draft of the article is available here. Since the article is slated for publication in September 2015, I have time to edit the piece. I welcome comments on the piece, which is available on SSRN. Here is the abstract: Continue reading

Huffington Post: The Other Marriage Discrimination

My latest Huffington Post column is up! It discusses discrimination against single people, describes the uneven protection the law provides against such discrimination, and suggests some ways we can improve on the current legal regime. Just under half of all states have status prohibiting discrimination in employment and housing on the basis of marital status, and there is no protection at the federal level. This makes for an interesting comparison among different state statutory schemes, but more importantly, I argue that both state and federal law should protect against marital status discrimination in both employment and housing. This would be good for single people (the focus in my column), unmarried couples, and married couples, all of whom face different kinds of discrimination in different circumstances.

I discuss the specific forms of discrimination that single people face in more detail in one of my current research projects, “Negative Identity,” which is available on SSRN.

The Economic Benefit of Marriage Equality

Not that this is the best or only reason to support marriage equality, but it’s worth noting that legalizing same-sex marriage has substantial economic benefits. UCLA’s Williams Institute has this series of state-by state reports.

For example, over three years, legalizing same sex marriage would add $182.2M to Florida’s economy, $70.8M to Ohio’s economy, $181.6M to Texas’ economy, $103M to Illinois’ economy, and $53.2M to Michigan’s economy. This would result from “wedding arrangements and tourism by resident same-sex couples and their guests.”

The researchers project other specific benefits as well. In Florida, for example, the spending would result in $12.1M in state and local sales tax revenue, as well as up to 2,626 new full- and part-time jobs in the state.

Obviously rights shouldn’t be determined by whether they’re lucrative. Same-sex marriage should be legal even if it were economically costly. But the fact that legalizing same-sex marriage actually generates revenue makes governmental opposition to it even less defensible, and state arguments that decisions striking down same-sex marriage bans cause “irreparable harm” even more feeble.

Say that a state incurs administrative costs in performing same-sex marriages after the invalidation of a same-sex marriage ban when it’s uncertain whether the Supreme Court will eventually hold such bans permissible. In many instances those costs could be outweighed by other economic benefits, such as tax revenue.

Justice Ginsburg and Reproducing Racism

This interview with Justice Ginsburg is really worthwhile reading. The contrast she draws between the trajectory of LGBTQ equality and racial equality isn’t novel, but a Supreme Court justice understanding the difference is considerably more unusual:

“Once [gay] people began to say who they were, you found that it was your next-door neighbor or it could be your child, and we found people we admired. That understanding still doesn’t exist with race; you still have separation of neighborhoods, where the races are not mixed. It’s the familiarity with people who are gay that still doesn’t exist for race and will remain that way for a long time as long as where we live remains divided.”

Justice Ginsburg’s explanation of the lack of progress against race discrimination resonates with a recent book by Daria Roithmayr (USC) titled “Reproducing Racism.” The book is intricate and multidisciplinary, and deserves its own review. But the basic idea is that without intervention, existing racial disparities will continue to reinforce themselves over generations, even if no one today acts with malice or bad intent.

An example: Historically, racially restrictive covenants limited the places where non-white people could live. The covenants allowed white people to acquire and retain wealth by buying and owning houses in for desirable areas.  The covenants also resulted in de facto segregated neighborhoods, which in turn lead to better schools and to better educational opportunities for white people. Which means that today, people who live in all-white neighborhoods and attend near-all-white institutions will never gain the familiarity with racial minorities that — as Justice Ginsburg notes — the same people have already gained with LGBTQ people. The result is that many white people will remain indifferent to racial disadvantage because of lack of familiarity and interaction with people who aren’t white.

An excerpt from “Reproducing Racism” can be found here. I highly recommend the book.

Working Draft: Negative Identity

I’ve posted a draft of one of my current research projects on SSRN. The piece is called “Negative Identity.” Here’s the abstract:

This Article examines the social and legal status of “negative identity”—identity marked by indifference or antipathy to something that much of society considers fundamental. As examples of negative identity, the Article considers those who identify as atheist, asexual, single, or childfree.

The Article begins by giving content to negative identity. Atheist, asexual, single, and childfree identity consists of more than merely the respective lack of religion, sexual attraction, partnership, or children. Rather, these negative identities are meaningful to group members, add value to society, and thus deserve legitimacy and respect. Unfortunately, respect is not always forthcoming: negative identity group members experience significant animus, discrimination, and marginalization.

This state of affairs requires legal intervention. I demonstrate that under current law negative identity is under-protected relative to analogous positive identity categories. In many legal contexts, including employment, housing, public benefits, and taxation, members of negative identity groups are treated differently and worse than their positive identity counterparts. Consequently, the Article proposes a broad reevaluation of laws that implicate negative identity. Negative identity deserves the same protection as positive identity against direct discrimination, which I define as worse treatment based purely on hostility to the identity. When negative identity groups indirectly subsidize positive identity groups, legal actors should undertake a holistic inquiry into all relevant factors in order to determine whether the subsidy is justified.

I’d love to hear any comments, but as I note, it’s a working draft, so please don’t quote or cite without permission.

Fourth Circuit Refuses to Grant Same-Sex Marriage Stay

As I have been arguing for months, staying decisions in same sex marriage litigation causes substantial harm and is legally unsound. About an hour ago, the Fourth Circuit refused to stay its ruling holding Virginia’s same-sex marriage ban unconstitutional. Depending whether the Supreme Court grants an emergency stay, same-sex marriages could begin next week in Virginia.

I’m quoted in this Associated Press story that was published immediately after the ruling.