With Ian Farrell: “Gender Diversity and Same-Sex Marriage”

I am delighted to share a short essay criticizing the “gender diversity” argument (or do I mean “argument”?) against same-sex marriage that I coauthored with my fantastic University of Denver colleague Ian Farrell.  You can download the whole essay here, or for those short on time, here’s the abstract:

Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow same-sex marriage while banning opposite-sex marriage—even if the ban triggers heightened scrutiny under equal protection or due process—because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah’s same-sex marriage ban in the Tenth Circuit and Kentucky’s same-sex marriage ban in the Sixth Circuit.

Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.


Chen & Marceau: More on the Continuing Problems with Lethal Injection

My colleagues Alan Chen and Justin Marceau have another piece, this time in Huffington Post, about the horribly botched Arizona execution and the broader problems with lethal injection: poor training of executioners; unavailability of the drugs previously used; lack of transparency that makes it very difficult for defense attorneys to challenge death sentences. This piece is written for a generalist, as opposed to legally trained audience. I highly recommend it.

Chen & Marceau: The Continuing Problems with Lethal Injection

For those as horrified as I am by the latest botched execution by lethal injection — this time in Arizona — my colleagues Alan Chen and Justin Marceau have an important post on the American Constitution Society blog analyzing the events leading up to the attempted lethal injection. Alan and Justin are, respectively, a former litigator with the ACLU and a former Assistant Federal Public Defender in the District of Arizona. Their piece is a must-read for anyone wishing to understand what happened in Arizona or to understand the legal and factual debate surrounding lethal injection.

A Few Memories

By now everyone has heard the heartbreaking news of Dan Markel’s untimely passing. Others have written eloquently about Dan’s intellectual gifts, his ability as a teacher, his scholarly contributions, and his commitment to mentorship. It is striking to me that the reaction is not only “this is a horrible tragedy” — which of course it is — but also “this simply cannot be.” Maybe one reason is that — particularly for those of us who entered legal academia in the past decade or so — there’s simply no such thing as legal academia without Prawfsblawg, without Dan’s larger-than-life presence in the blogosphere, without his generous feedback on papers, and without his ceaseless efforts to improve the legal academic community.

I didn’t know Dan anywhere near as long or as well as many of his colleagues did, and this post will be a small drop in the river of memories from people whose lives Dan touched. But for whatever it’s worth, I thought I would add a few of my own. Continue reading

Huffington Post: Constitutional Rights in the Digital Age

My new Huffington Post piece argues that the Supreme Court’s decision in Riley v. California reveals a willingness to think about technology as both quantitatively and qualitatively different, with implications for the scope of Fourth Amendment protection. I consider how emerging technology might affect the way that courts construe other constitutional rights, too. Here, I focus on the First Amendment.

More Same-Sex Marriage Developments

I enjoyed talking to Dave Young for Fox News’ report on the Tenth Circuit’s decision to invalidate Oklahoma’s same-sex marriage ban. Meanwhile, I’m also quoted in this Associated Press story summarizing recent developments in the Colorado same-sex marriage cases. Clerks in Denver and Adams County will stop issuing marriage licenses following a state court order — hopefully a short-lived development.

Fox Oklahoma2

Federalist Society Review of 2013-2014 Supreme Court Term

I’ll be speaking today at an event sponsored by the the Colorado chapter of the Federalist Society, which reviews the Supreme Court’s 2013-2014 term. My co-panelists will be Judge Tim Tymkovich of the Tenth Circuit, Colorado Solicitor General Dan Domenico, Richard Westfall, and Rob Natelson. It should be a really interesting conversation. I’m particularly looking forward to discussing United States v. Riley, in which I was pleased to sign the law professors’ amicus brief that the Supreme Court ultimately cited in its unanimous opinion holding that  that police cannot perform a warrantless search of a cell phone as a search incident to arrest absent some other exception to the warrant requirement.

More information about the event, which takes place over lunch today, is available here.

Thoughts on Gender Diversity and Same-Sex Marriage

I have written previously about the a curious new argument adopted by opponents of same-sex marriage. The argument goes something like this: The Supreme Court has held that diversity is a compelling state interest in upholding certain kinds of affirmative action programs in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow same-sex marriage while banning opposite-sex marriage, because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The argument has found its way into some of the amicus briefs in United States v. Windsor as well as party and amicus briefs in several disputes pending around the country. In Windsor, for example, one amicus arguing the validity of DOMA stated:

Without bothering to cite the copious literature showing the benefits of having a mother and father: common sense tells us that more diversity exists when a child can learn from a female parent and a male parent, than with two male or two female parents. With two fathers, how can a child be breast-fed by a parent? And with two mothers, a child may have no close male role model from whom to learn.

Landmark affirmative-action case Grutter v. Bollinger tells us of the compelling state interest of diversity served by affirmative action at universities. But that is only maybe for four years, at a college. By contrast, for the eighteen years of pre-adult growing up (including the vital first few years of life), for a child to have diverse, different-sex parenting, could be considered a far more compelling interest.

The argument reemerged in the litigation of Utah’s same-sex marriage ban. In an emergency petition asking the Supreme Court to stay the district court’s decision invalidating Utah’s same-sex marriage ban, for example, Utah argued that “society has long recognized that diversity in education brings a host of benefits to students,” and “[i]f that is true in education, why not in parenting?” As Utah puts it: “the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children” (emphasis theirs). Continue reading