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.
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.
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.
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.
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.
One of my former classmates at Stanford Law School has started a new Tumblr — Not Your Fucking Sweetheart — that documents the ongoing problem of street harassment. Her immediate goal is to document a month of street harassment in her life in a major metropolitan area (in this case, Washington DC, which is notorious for street harassment). I highly encourage everyone to take a look, and to check back in over the next thirty days.
The project is important for a number of reasons. First, it highlights that the harm of street harassment is not just an occasional one-off encounter, although that can be disturbing in and of itself. For many women, street harassment is a near-everyday occurrence. And it’s this cumulative effect that’s the greatest problem. Dealing with street harassment a few times a year would still be worthy of discussion. But dealing with street harassment nearly every day is a distraction from women’s lives that affects success at school and at work, relationships, and personal well-being. Speaking from personal experience, having someone call you a “fucking whore” on your way to work, or throw Gatorade on you from a car while you’re out for a run, or grope you on your morning subway commute, is a disturbing and frightening experience not immediately shaken off. To my knowledge no one has attempted to measure empirically the effect of street harassment on women’s workplace and educational attainment, but I suspect that it is significant. Continue reading →
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.
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.
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.