Martha Nussbaum, “Same-Sex Marriage and Constitutional Law”
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Martha Nussbaum, “Same-Sex Marriage and Constitutional Law”

October 10, 2019


GREG DARNELL: On behalf
of the University of Chicago, the University of
Chicago Alumni Association, and the newly-formed
LGBT alumni club, I’d like to welcome everyone
to our event tonight entitled Same Sex Marriage and
Constitutional Law. My name is Greg Darnell, PhD
’08 from the biological sciences division. And I’m co-chair of the LGBT
alumni club with my friend here, Vincenzo
Barbetta, MBA ’05. First off, I’d like
to thank everyone for the wonderful attendance
tonight at our inaugural event. We’re extremely excited to
have such a great turnout. And we would especially
like to thank the University of Chicago’s
Alumni Association for sponsoring this special
interest group, which we know will provide a
long-lasting and complementary addition to the existing
alumni clubs of the university. The goals of the
LGBT Alumni Club are to strengthen the bond
between the University of Chicago and its LGBT alumni. We also want to
create interest in, and support for, the university,
most specifically with regard to LGBT issues. And we want to provide
fellowship, support, and service to LGBT alumni. Finally, our goal
as an alumni club is to enrich the role played
by LGBT alumni in the life and leadership of the U of C. To accomplish these
goals, we will need your help and support. We have formed a national
steering committee that has been actively meeting
and formulating directives, events, and membership. We are also indebted to our
wonderful alumni office staff. Maureen [INAUDIBLE] and Eric
Rogers, could you please stand? [APPLAUSE] These individuals
have been a backbone of administrative support
for us during this genesis. The LGBT alumni club is looking
to offer a variety of events to our alumni and
the general public and would like to expand a
wide range of programming, both here in Chicago
and around the globe. We encourage you to check out
and sign up on our website at lgbtalumni.uchicago.edu
for more information, and we encourage you to share
this website with your friends. We also asked that you mark our
holiday party that we’re going to have on December the 2nd. The details will be
sent out soon via email if you sign up on the website. Again, thank you for coming
tonight and sharing with us in this special event. For many alumni, this has
been a long awaited group. And we’re excited to
bring it to fruition and become long-lasting
supporters of our alma mater. Thank you. [APPLAUSE] VINCENZO BARBETTA: Welcome,
once again, to everyone. We’re very, very excited
about the turnout that we have here tonight
for our kickoff event– kickoff event that
will be in three parts. We’ll begin with
our keynote speaker after some well deserved
introductory remarks. We’ll move on to the discussion
and Q&A part of the event. And then finally, the
reception outside afterwards. The Q&A discussion
portion will be led by Melanie Rowen, an alum
both of the college and the law school at the
University of Chicago. We’re very, very glad that
she’s with us tonight. During her stay
at the law school, Melanie was awarded the Anne
Watson Barber Outstanding Service Award. She was also the recipient
of the Stonewall scholarship, which is awarded to
the student most likely to further the cause of civil
rights for the LGBT community. After she graduated
from the law school, Melanie joined as
a staff attorney at the National Center
for Lesbian Rights in San Francisco. The NCLR was lead counsel for in
re marriage cases, the marriage equality case that
was judged favorably by the California Supreme
Court on May 15th, 2008. We’re very glad to have
her with us tonight. We’re leveraging the
assets of the alums, our esteemed faculty, and
also staff this evening. So to give the
introductory remarks, please let me introduce
the executive director of the Alumni Association
and associate vice president of Alumni and– excuse me– Constituent
Relations, Mr. Tim Child, also an alum of the college. [APPLAUSE] J TIMOTHY CHILD:
Thanks, Vincenzo. Thanks, Greg. Not an alum of the
college– of the humanities division in the business
school, but close enough. Thanks. I’m really thrilled to be here
for any number of reasons. I’d like to reference the
Stonewall scholarship that Vincenzo mentioned, which
was set up at the law school in the mid-eighties by a
group of alumni, one of whom– Jim Hormel– later became the
first openly-gay ambassador from the United States to
another country, to Luxembourg. And I think you’ll remember
the fight over that was led by another alum,
John Ashcroft, senator from– [LAUGHTER] I think this is
part of what makes Chicago such a great
place, is that you get these polar kind of
opposites going at each other. And it always makes for
an exciting conversation. I arrived at Chicago 25 years
ago as a graduate student in English, and
I was freshly out of 10 years in a Catholic
religious order and freshly out in other ways as well. I showed up at Chicago,
and one of the things that I valued most
about arriving on campus was that it was the first
time in my adult life I could just be myself, because
nobody cared that I was gay. And I had not actually
had that experience, because all anybody cared
about is if I could do the work and if I had anything
interesting to say. And as long as I could
fill those requirements, everything was OK. I had the privilege of
trying to set up an alumni association for lesbian and gay
alums back in the early ’90s, and some of the folks who
helped me with that are here. I was out in Los
Angeles at the time. And when I talked to
the alumni association about sponsoring
that group, I was told the university
really didn’t do that for special interest groups. So it did kind of peter out. But as fate would have it– I could paraphrase
Mel Brooks here and say it’s good to
be king, because now that I am executive
director, we do this now. [LAUGHTER] [APPLAUSE] And not only for
lesbian and gay alumni, but there is a Chicago
women’s business group that’s very active. Last week, we had
a sold out event with the University of Chicago
Association of Black Alumni, the first time we’ve had a
group of Black Alumni organized and getting together and
socializing and networking. And we all know this
is important stuff, so I’m really grateful
to Greg and Vincenzo and the steering
committee for helping put this together, for
Maureen and Eric on the staff for helping. And I’d like to actually
thank my colleagues, some of my colleagues who
are here today as well– Rose Martinelli, who’s the
dean of admissions at the Booth School. I don’t know where
you’re here, rose. There’s Rose back there. [APPLAUSE] David Fithian and his
partner Mike Rodriguez. David, where are you? There you are. The secretary of the board of
trustees of the university. David. [APPLAUSE] Bill Michel, his
partner Mark Botelho. Bill is the assistant
vice president, dean of students at the university. [APPLAUSE] Suzanne Baker, who
is my colleague, assistant vice president
in the development office. [APPLAUSE] I am pointing these folks
out because we really tried to rally the gay mafia
tonight for the whole thing. I’m going to stop
with the history there because it really
means a huge amount to me personally, as an alum of this
institute– oh, Bert Cohler. My god. Bert. I have to introduce
Bert on the faculty. Bert and I were on
the board of Horizons when they were talking about
building this building, and Bert has been a
tireless supporter of gay and lesbian
students for ever. Just thrilled that
you’re here too, Bert. Thank you. [APPLAUSE] And of course, the gang from
the Center for Gender Studies and the Gay and Lesbian
Studies project, Stuart Michaels, Gina Olson– are here as well. So we did get at least a good
chunk of the mafia organized. I’m really thrilled to
introduce Martha Nussbaum to you as our speaker tonight. When I was working in
the Divinity School at the university, my boss,
Clark Gilpin, came in, said he was very excited because
the law school and the Divinity School had figured out
a way to attract Martha Nussbaum to the university. And it was a huge sense of
excitement on her arrival. And I think you all know that
she is not only a prodigious scholar and one of the
most widely-published, widely-decorated– do they call it decorations
when you get honorary degrees? –widely-decorated
faculty members at the university who’s written
innumerous number of books. The one thing I wanted to point
out about Martha Nussbaum’s work which matters
so much to me is it the thread running
through all of her work is a consistent
attention to what matters about human
dignity and humanity. And she has been committed
to that in her work, both in her writing and the
work she’s done for women in India and elsewhere. She’s been just a tower
of liberal strength, a great voice for equality. And it’s just such a
privilege to have you here at this first event. And thank you for
wearing leather too, because that was just perfect. [LAUGHTER] So with that, Martha Nussbaum. [APPLAUSE] MARTHA NUSSBAUM: Well,
thank you all so much, and I’m just so
thrilled to be here. I think it’s such
a wonderful event, and I’m really just honored
and tickled to be here. So thank you for inviting me. I have a book that’s
coming out in February about sexual orientation
and constitutional law. And in the beginning of
that, I tell the story of how I first started
thinking about this issue of same-sex marriage. And I was a young
actress at the time. And I saw, suddenly, in
the theater community, people who were able to openly
acknowledge their relationships and live out in the open. And that certainly
had not been the case. In fact, I didn’t know,
at the age of 16– I didn’t know that such
relationships were really in existence. So it was like me coming
out of a certain closet of imposed ignorance
into something of curiosity and
knowledge, which I still value the theater for. So that was my first beginning
of thinking about this issue. And then much
later, just before I came to the University of
Chicago, as a young classicist, I was involved as an
expert witness in the bench trial of Evans versus Romer. And I won’t talk
about how it came to be that a classical
scholar was asked to testify in that gay rights case. In the question
period, you can ask me. But since it doesn’t have
anything to do with the topic, I won’t. But there, I mean, it was
very much of a sideshow. But in that trial, I not only
saw the urgent importance of the issues, but I also saw
the nature of the opposition up close. I was there in
the courtroom when Will Perkins, who was
testifying against and trying to articulate why Amendment
2 was a great thing– he was forced to read into
evidence some pamphlets that he had circulated during the
campaign for the referendum, and they were all filled with
horrible appeals to disgust and saying things
like gay people eat feces and drink
raw blood and so on. So I understood. And then I became curious
about the politics of this. And I understood
the extent to which this politics was a politics
of stigma and disgust. And since in later time and
writing about the emotions, I got really interested
in writing about disgust, I’ve actually framed my
book around that issue. And it’s from Disgust to
Humanity, Sexual Orientation and Constitutional Law. So now I’m just going
to talk about marriage. But I’d be happy
to talk about any of the other issues in the
book in the question period. So what I want to do, just
for these few minutes, is to focus on
the arguments that are often heard against
the legalization of same-sex marriage. And I think there are five. And I want to try to say why
I think that none of them is a good public argument. Now, in each case, I
think we have to ask, does the argument really
justify the conclusion that same-sex marriage should
not be legally available? Or does it justify some
quite different conclusion? And second, whether it’s a
public argument– by which I mean, is it something
that citizens in a pluralistic society
can decently put forward in the context of that
pluralism to citizens who don’t share their own
religious convictions? Or is it an argument
that works only within the confines of a
particular religious body? Observant Jews don’t think
it’s good to eat pork, but they typically do not
recommend making pork illegal for all citizens. It’s just well understood
that that’s a religious issue, and it’s not something
that we could decently trot out as a public argument. So that’s what I think we have
to ask about each of these. All right. So the first one– and it’s the
one that we hear all the time– says the purpose of
marriage is procreation. Now, of course, this
sidesteps the fact that lesbians and
gays do have children within that
relationship or children from a previous
relationship and so on. But let’s just put that
aside for one moment and ask, is it really true? Have we ever thought
that marriage is just for procreation? Well, I think it’s
really obvious that we have not thought that. For the whole history
of this country, we’ve married people
known to be sterile. We’ve married people known to be
much too old to have children. And almost more
important, we’ve married people who will
clearly never have any kind of sexual
intercourse with each other. Deathbed marriages
are permitted. And, in a very important
Supreme Court court case, prisoners serving life terms
without the possibility of parole were held to have
a fundamental constitutional right to contract a marriage. And the court explicitly
says, well, it might turn out that
some of these people may eventually be released
and get to actually meet this person that they marry. But we’re not going
to focus on that. We’re going to focus on the
emotional and expressive significance of the marriage. So clearly we don’t think that. And if we want to change
the whole institution, that’s not what these
opponents are recommending. Second, they say–
oh, well, of course– well, that may be true. But you know, marriage is about
the protection and rearing of children, and we all
know that children do best with a mother and a father. You hear that all
the time, and I’m sure Melanie will talk about
the propaganda in California. Well, actually, by
itself, of course, you’re just saying it’s about
the protection of children. Again, that wouldn’t do because
gays and lesbians are raising children all over the place. So they have to rely very
heavily on this empirical claim that children do best with
one mother and one father. Well, the problem with
that one is the facts. Again and again,
since the Hawaii court in Baehr versus Lewin, where a
lot of psychological testimony was heard, it’s quite clear that
when you frame child welfare neutrally so that
you don’t smuggle in any kind of religious notions
into the definition of welfare, actually, children do just as
well in same-sex relationships as in opposite-sex
relationships. So that one is just
factually unconvincing. The third one says
something like this– to allow people to get married
is to confer approval on them. So if we legalize same-sex
marriage, what we’re doing is legalizing the blessing or
sanctifying or the approval of same-sex marriage. And what that means
is that if I’m an opponent of
same-sex marriage, I’m being forced to approve
of or bless something that I actually don’t approve of. That’s an argument
that’s actually been made by a very
respectable, and I would say quite thoughtful, law
professor Charles Fried, who used to be Solicitor General
of the United States, in a book called Modern Liberty. So this is this
is a heavier one. But I think it’s very
hard to figure out what he means by this. And if we try to figure out what
he really does mean by this, I think it’s got to raise
establishment clause problems. Let’s think of Jews
and pork again. If a Jew tried to
say– well, you know, if you allow the sale
of pork to be legal, that forces me to bless
or approve of something that I find abhorrent. That would clearly raise an
establishment clause problem if this person wanted to
use that as a reason to ban the sale of pork for all people. And if you look at countries
where a religious norm is imposed on all people
through public law, you see that that’s a country
with a religious establishment. For example, the
prohibitions on driving on the Sabbath in Israel. And in India, the
prohibition on cow slaughter. These represent the fact
that a religious group has gotten sufficient political
power to constitute itself as either a de jure or
de facto establishment. And I think it’s clear
that our country has chosen not to go in that direction. So that may be an argument
that some people, some place, may want to go for, but not
not here and not for us. Fourth argument– traditional
marriage is in trouble. Marriages are falling
apart all the time. There’s a crisis in marriage. So we better just keep to
the traditional definition of marriage and
somehow save the future of that glorious institution. And this is the
kind of thing that was said in the Defense
of Marriage Act testimony all the time. And there were speeches
after speeches saying, this wonderful institution
is under threat, so we can’t change
the definition of it because that would
threaten it even more. Now first, I think
we have to ask, is traditional marriage
in unusual trouble? I think the problem is that the
traditional marriage was not such a blessed and
perfect institution. And in particular, it was
not perfect for women. Women originally, in
the 19th century– they had very few options. They couldn’t get divorces on
grounds of cruelty or neglect and so on. So now, women have exit options
that they didn’t have before. They also have
employment options they didn’t have before. So women are not sticking around
in a marriage that doesn’t meet certain standards of equality. And it may be that that
is the biggest explanation for the rising divorce rate. And a lot of
scholars think that. So they may not be a problem. But let’s just say, all
right, there may be a problem. What would we do
about it if we thought that heterosexual
marriage is in trouble? What would we sanely
and rationally want to do to protect it? Well, lots of sensible
things suggest themselves– marital counseling, paid
for by the state, employment counseling in this time
of economic hardship, drug and alcohol counseling. All of these things have a
clear and rational relationship to the preservation of
traditional marriage. Keeping other people
who want to get married from getting married has
no such clear and rational relationship. It’s just very hard to see even
what people are thinking when they think that somehow
stopping those people over there from getting married would
help me preserve my marriage. Now actually, we’re getting
empirical evidence that helps us because the divorce
rates in the states that have legalized same-sex marriage
are not, in fact, going up, and I would not have
expected them to. Now then, here’s the one that
really is doing the work, I think. And it’s a very sort of
indirect and nefarious one, and so we have to take it apart. Namely, the very approval
of same-sex marriage somehow sullies or taints
or demeans my marriage. Now here, we’re moving on to
the ground of disgust, I think, and so we want to try to
figure out what the argument is that’s being made. Now, I think what
people purport to be saying is something like this. Well, if the Metropolitan Opera
auditions started giving prizes to pop singers of the sort
who sing on American Idol, that would somehow
sully or taint or demean the winners of the
Metropolitan Opera auditions. If the Hall of Fame started
admitting those baseball players who are known to
have used steroids– well, once again, that
cheapens or sullies that honor of getting
into the Hall of Fame. So the point that they think
they’re making, I think, is that the recognition
of low-level or cheap or non-serious or
crooked contenders for an honor sullies that honor. So I think that’s
what they think they’re saying when
they talk about how same-sex marriage would file
traditional marriage, when they talk about a defense
of marriage and so on. So what should we
say about that? Well, of course, we
have to, first of all, just challenge it on the facts. Same-sex couples are not like
inferior singers or cheating athletes, or no more so than
our heterosexual couples. There are creeps
in all communities. [LAUGHTER] But people who
want to get married want to get married for reasons
that are very similar to those of heterosexuals. They want to express
love and commitment. They want, some of them, to
gain religious sanctification for their union. They want to get a
package of civil benefits. Some of them want to
have and raise children. So the existence
of some cheaters or bad people among the
group of heterosexuals has never stopped the state
from marrying heterosexuals. And people do not talk
or think this way. I’ve never heard one person
say that the fact that Britney Spears can get married somehow
taints my heterosexual marriage because she’s a cheap
contender for that. But somehow, without
knowing anything at all about the same-sex
couple next door, they do think that the fact
that they can get married cheapens or sullies
that marriage. Now, if the proposal
were that we should introduce character
tests for marriage or have background checks– at least then, there
would be something like a consistent proposal. But of course, no
one is supporting such an intrusive regime. What’s clear is that they
just do not fret over the way that inferior
heterosexuals might sully the institution of
marriage or lower its value. And given that they
don’t worry about this and given that they
certainly don’t want to allow marriage
for gays and lesbians who have passed
a character test, it’s really hard to take
this argument at face value. I think that, really,
we can’t understand what’s going on without
thinking about disgust and contamination. The only distinction between
unworthy heterosexuals and the class of
gays and lesbians that can possibly explain the
difference in people’s reaction here is that a lot
of people still find the sex acts of gays
and lesbians disgusting. And I’m afraid this even does
include Charles Fried, who says, well, if you’re going to
think with sympathy about this, you have to not think about sex. Because otherwise, it
would be too difficult. So nothing short of a primitive
idea of stigma and taint can explain the
wide spread feeling that same-sex marriage
is a contamination to straight marriage. So in the end, I
think the arguments all boil down to
something very primitive and something that’s in
the ballpark of disgust And if we’re looking for a
historical parallel to that, we can find it very
easily in the history of views about miscegenation. At the time of Loving
versus Virginia in 1967, when the laws against
interracial marriage were struck down, 16 states both
prohibited and punished– sometimes as a very
serious felony– marriage across racial lines. In Virginia, which
was a typical example, a marriage across
racial lines was a felony punishable by from
one to five years in prison. Well, like same-sex marriages,
cross-racial marriages were opposed with a
wide range of arguments. But in hindsight, I think
we all can see that it was disgust that was at work. It was the same
feeling that made people think they can’t swim
in the same swimming pool with a person of
a different race, they can’t drink from the
same drinking fountain as a person of a different race. I was actually
raised by a father from the deep south
who was a practicing lawyer and an
extremely educated man, but he actually did believe that
if an African-American person drank from a glass
in the kitchen, you couldn’t wash
that glass again. You would have to throw it away. So these deep feelings about
what contaminates the body were clearly at the bottom of
the ban against miscegenation. And in fact, that wasn’t
even hidden all the time. The Racial Integrity
Act of 1924 in Virginia positively proclaimed that
ideas of contamination were ubiquitous. Well, what did the
law think of that? The Supreme Court concluded
that ideas of racial stigma were the only ideas that really
supported those laws, whatever people said. They said, quote,
“There is patently no legitimate overriding
purpose independent of invidious racial
discrimination which justifies this
classification.” And I think we should draw
the very same conclusion about the prohibition
of same-sex marriage. Irrational ideas of
stigma and contamination, the very kind of animus that
the Supreme Court recognized in Romer versus Evans as
not giving the law even a weak rational basis,
is a very powerful force in the support of
this opposition. And that’s what the Supreme
Court of Connecticut very nicely said
in October 2008. What they said is, beyond
moral disapprobation, gay persons also face
virulent homophobia that rests on nothing
more than feelings of revulsion toward gay persons
and the intimate sexual conduct with which they’re associated. Such visceral
prejudice is reflected in the large number
of hate crimes that are perpetrated
against gay persons. The irrational nature of
the prejudice directed against gay persons who
are ostracized, despised, demonized, and condemned
merely for being who they are is entirely different in kind
than the prejudice suffered by other groups that have been
denied suspect or quasi-suspect class state. And so what they
were saying is it’s a very deep-seated prejudice. It’s deeply irrational. And it cannot be got rid of
without very strong legal work. So I think that that’s what
these arguments add up to. And we haven’t
seen any, I think, that could ever supply
government with anything like a compelling interest. And I don’t even
think any of them will even pass the weaker
rational basis test, given that they are based on animus. On the other hand– what do we have
on the other side? Well, I think the argument
in favor of same-sex marriage is very straightforward. If two people want to make a
commitment of the marital sort, they should be
permitted to do so. Because to exclude
one class of citizens from the benefits and
dignity of that commitment demeans them and insults
their human dignity. And I think it is that simple,
both as a matter of morality and as a matter of
constitutional law. [APPLAUSE] MELANIE ROWEN: All right. I’m going to stay down here. Thank you so much,
Professor Nussbaum. I have to say, as
a double alumni of the college and
the law school, it is extremely exciting
to me to be up here with Professor Nussbaum. And also, I feel so
gratified to have you be working in this area. And all the writing
and scholarship that you’ve done
on this, I think, is going to help those of us
who are advocates in the field really move forward
at a faster pace. And I really mean that,
specifically, about your work. And so I’m very grateful
to be here with you today and also to hear
you talk about this. And I’m looking forward
to your book as well. So let’s see. I would like to get to
questions, particularly because I think our time
is a little bit short. I think it might
be useful, though, for me to speak for
just a couple of minutes about what I do and what’s
happening in advocacy on behalf of lesbian, gay, bisexual,
and transgender people today just to give a
little bit of a framework for that, and then also
maybe to give people some ideas about what they
might ask questions about. I think everything that I
do as an advocate really relates closely to what
Professor Nussbaum is saying about human dignity. And that’s kind of why we’re all
here, why you’ve all shown up. And everything, all the
arguments that we make, and all the fights that
we have to have all boil down to that basic concept. And it seems fairly obvious,
I think, for most LGBT people. But it doesn’t seem that
obvious to many other people. So that’s sort of
a building block of advocacy on behalf of
LGBT people that many of us take for granted. But you need to make that
point over and over again. So my name is Melanie Rowen. I’m a staff attorney
at the National Center for Lesbian Rights. I’m going to explain a
little bit about what my organization does,
again to sort of widen the field of what’s going
on in advocacy on behalf of LGBT people and to give
some examples of what’s happening out there. So my organization, the National
Center for Lesbian Rights– we are a national
legal nonprofit. Our goal is to further the civil
and human rights of LGBT people through public policy advocacy,
public education, and impact litigation, particularly. Can I just get a show of hands? How many folks in
here are lawyers? Oh boy. [LAUGHTER] MARTHA NUSSBAUM: It’s a very– MELANIE ROWEN: Yeah, a lot
of lawyers in the house. But not too many. Not too many. [LAUGHTER] That’s my favorite kind of
audience, the mixed audience. [LAUGHTER] It’s true. So impact litigation for folks
who don’t follow legal issues as closely– that’s typically defined as
appellate-level litigation– meaning litigation at
higher level courts, not trial courts– that has some sort
of outcome that is going to actually
change a rule of law that will have an effect in cases
other than the one that you’re actually litigating. So we typically take cases
at the intermediate appellate level or at the state high court
level or federal high court level, as needed, to try to
get case law on the books or to strike down statutes that
are unconstitutional in order to make things better
for LGBT people. And that’s what I
get to do for my job, and it’s totally awesome. I recommend it to everyone. And I guess one other
thing that I want to explain about what I do– obviously, our most relevant
work for purposes of this event was the in re marriage
cases litigation. That was the California
Supreme Court case that was decided
in 2008, which led to the legalization of
marriage for same-sex couples for a brief and wonderful period
during the summer of 2008. It all came to an end
in November of 2008 with Proposition 8, and
we were also lead counsel on behalf of same
sex-couples and organizations representing LGBT people in
the ensuing Proposition 8 litigation, which
concluded this past May, with the result that
marriage for same-sex couples is still not happening in
California at this time. So in addition to the
marriage-related work, though– just, again, to give
you an idea of what’s going on out there– the work
that my organization does is divided in program areas. Some of the stuff that we do
is relationship recognition beyond marriage– so
domestic partnerships, civil unions, reciprocal
beneficiaries in Hawaii, and now designated
beneficiaries in Colorado, all of these different
ways of working out how do we allocate rights and
responsibilities to couples if we’re not going
to call it marriage? We also do a lot of parenting
and family law issues. That’s the backbone
of my organization. So we do a lot of
work on making sure that the relationships
of non-biological parents to their children are recognized
and remain recognized, even after the parents
maybe have broken up. We also do a lot
of work on behalf of transgender
people making sure that they can maintain
custody of their children and on behalf of the parents
of transgender children. We do a lot of immigration
work, asylum work, and also policy advocacy. The Uniting American
Families Act some of you may be familiar with–
we were involved in the drafting
of that bill that would recognize
domestic partners in same-sex relationships
for purposes of immigration. Although hopefully, if
we have a DOMA repeal, that could end up
not being necessary. We have a youth project. We represent youth
in out-of-home care and the foster system and
the juvenile justice system. An elder law project,
which is sort of my baby. We represent LGBT
elders and also try to just do advocacy within the
aging community for LGBT people and within the LGBT community
on behalf of those of us who are getting older, because
a lot of people in the community don’t remember that we have
older people amongst us. And just in case there’s
anybody here tonight who is interested in this, I
would like to give a shout out to the Center on Halsted, which
has actually a groundbreaking program for LGBT seniors
in the Chicago community and does amazing work on that. And if that’s something
you’re interested in, I would really encourage you
to get involved here with that. We also do employment work. We have a sports project. There’s homophobia in sports. I don’t know if any
of you knew that. [LAUGHTER] This just in–
homophobia in sports. And a project called
Proyecto Poderoso, which is a collaboration between
us and the California Rural Legal Assistance Organization. We represent farm workers in
California on LGBT issues. There’s a large number
of LGBT farm workers, and it’s a very sex-segregated
form of employment. And there’s a lot
of discrimination based on sexual
orientation and gender identity in that context. So we’re working on that. We have six attorneys. [LAUGHTER] Most of us are generalists. I’m a generalist. I do a lot of different
kinds of types of stuff. And I’m happy to talk to people
afterwards about all what that entails and what we do. I have a unjust
enrichment case out there for the business lawyers
that I’m doing right now. Its Title IX retaliation,
lesbian breakups. You name it, I got it. So that is what I do, generally. And if you are interested in
supporting our work or LGBT impact litigation,
generally, I’m happy to talk to
people about that. Please just come
up and talk to me and give me your
contact information and ask me questions, and I
will tell you all about it. I could talk about it all day. Back to some of the things
that Professor Nussbaum said. You packed so much content into
such a short period of time that it’s difficult to
know what to pull out, except to keep revolving
around this basic concept of human dignity. I think it might be helpful,
particularly because we have a lot of non-lawyers
in the audience, just to frame things
for question time. I’m going to really briefly
describe the legal framework that all of this is
being litigated in, because I don’t think that
the news actually explains it all that well a lot
of the time, at all. And it came up in some
of what you’re saying. And the basis of
your counterarguments are that these things
have no rational basis, that none of these
arguments provide the state with a rational
excuse for drawing a line based on sexual orientation in
the context of marriage. So the legal framework
that that comes out of, the rational basis context– for folks, again, who have
not attended law school– and why wouldn’t you do that? You should all go. Everyone. Everyone go today. So normally, when the law draws
a line of some kind, any law, it’s constitutional if there’s
a rational basis for it. If somebody can walk into a
room and say, you know what? That law would make sense
if they were thinking of this when they wrote it. That’s the end of the
story; it’s constitutional. When the law draws a line
based on a particular personal characteristic, such as race,
national origin, religion, sex, sort of, then if that
characteristic is a suspect classification like
those ones I just named, then the state has to show
that the law that it made is necessary to further a
compelling state interest. So they’ve got to
show they really had a good reason for doing this. And it’s a very
important reason, and they actually
needed to do this in order to accomplish
whatever that goal was. And it’s very clear– I think you lay it out without– you don’t even need to go
through why these arguments don’t meet that test. They’re just patently
not meeting that test. So for advocates, actually, a
lot of what we’re trying to do is just get courts to say
that sexual orientation is like race, like national
origin, like religion, and in some states
and places, like sex– say that sexual orientation is
one of these classifications that is suspect. So if you’re drawing a line
based on people being gay, you’ve got to really show
you had a good reason for it. The other piece here is
that when the law takes away a fundamental right from
anybody, not just based on a suspect classification,
but just in general– if the law takes if the law
takes away a fundamental right, again, you need to show that
it was necessary to further a compelling state interest. So the other moving piece
here is, is the right to marry a fundamental right? And what do we mean
by the right to marry? I thought in your article that
you published in Dissent– I really liked your discussion
of what is a marriage? What do we think of when
we talk about marriage? And in the California
marriage litigation, we spent an inordinate amount
of time briefing this issue because the court
actually asked us, what do you mean by
the right to marry? And we spent so many hours
thinking about how do we pack all of this content
into a legal argument and also answer the
court’s other questions and also get out
of here on time? And we spent a
lot of time on it. The California
Supreme Court kind of did it for us in the end. They came back with, we
think that the right to marry is the right to
form a recognized family with a person
of your choosing, which is a really concise and
content-full, I think, way to say it. Whatever it means to
you to form a family– which means a lot of
different things to people– and with the person
of your choosing, and then to have the
state recognize that. That’s what we’re seeking. On the other side, right
wing advocates typically say that what
we’re asking for is a right to same-sex marriage,
which then conveniently allows them to say, nobody has a
right to same-sex marriage. No one’s ever had that. That crazy. What’s a same-sex marriage? You don’t have a right to that. And that is specious,
very specious, because it’s the right to form– it’s an individual right. The California
Supreme Court said it’s also the couples right,
both the couple’s right and the person’s right
at the same time. So we spent a lot of time trying
to get the court to that place, that the right to marry was
a fundamental right that applied to same-sex couples as
well as different-sex couples. And that that wasn’t actually
a large hurdle in our case. But in some states, it has been. And some state courts
have not accepted that the right is the
right to marry, generally, for all of us, rather than this
right to same-sex marriage, which is the framing that the
right wing groups have tried to put on it. That framing is dying, I
think, particularly as marriage for same-sex couples
becomes a reality in many different states. It doesn’t seem so crazy
anymore to say the right to marry encompasses that. And the phrase right
to same-sex marriage sounds weirder and
weirder, which is good. So that’s the legal
framework here. The things that came out of the
California litigation that are important today were
that we actually– the California Supreme Court
was the first state high court to acknowledge unequivocally
that sexual orientation is, in fact, like race,
like religion, like national origin– a suspect classification. We’ve had other state courts who
sort of got around that issue. In Connecticut, for example,
the state high court found that it didn’t
meet the rational basis test to deny same-sex couples
the opportunity to marry. So they didn’t need to consider
whether sexual orientation– like race or religion– is
a suspect classification. But between the US
Supreme Court’s decisions in Romer versus Evans and
also Lawrence versus Texas and the California state high
court’s decision in re marriage cases, there’s now a growing
body of legal authority that sexual
orientation shouldn’t be– you shouldn’t
be expected to change your sexual orientation, and the
law shouldn’t be able to shut you out on that basis. So that’s sort of
what’s happening in the legal world on
this front in the larger constitutional litigation sense. In the political sense, we’re
seeing all of these arguments that Professor Nussbaum brings
up over and over and over again in our ballot fights, because
ballot initiatives are now really one of the big fronts
in this war on relationship recognition. But it’s also going
to be increasingly on nondiscrimination, generally. We’re going to see another
wave of attacks from right wing groups on LGBT people, using
transgender issues as a wedge to try to get rid of
nondiscrimination protections. And we’ll be seeing these sort
of disgust-focused messages over and over again. I think an interesting
thing that’s happened just in the last decade or so is that
right wing groups have gotten increasingly boxed in, just by
growing political acceptance of gay people, to having a much
more difficult– for example, the anecdote that you gave
about the Romer trial– nobody would show
up in court today and try to argue that gay
people eat feces or drink blood because they would
be laughed out of the room, and they probably wouldn’t
get to go to a court again. But people still want
to use that concept. They just have to sort of
slide it in under the radar. And the messaging gets more
and more sophisticated. And there are some very smart
people working on this issue. I think, fundamentally,
they’re going to lose, because it’s a loser, but– it is a loser. [LAUGHTER] But a good example– well, a lot of commercials– I’m sure if you’ve
seen them on YouTube or if you live in a
jurisdiction that’s faced one of these
ballot fights, a lot of the
commercials will relate to children in a way that seems
friendly on the commercial’s part, but insidious on
the part of the gay people that the commercial
is talking about. And it’s tricky
how this is done. A lot of it relates
to, what are they going to teach our
children in schools? My daughter came
home today and said, mommy I can marry a princess. That was a specific
incident that occurred in the California
campaign, a commercial about that. And then there’s
some stuff that’s a little bit more disturbing. There was a commercial
that aired in California for a while that didn’t
make the same headlines that the mommy, I can marry
a princess commercial did– where there was all-white
room and a baby in it, with sort of an
overtone of purity. Everything was very clean. Everything was very spare. There was the baby. And then they showed
not the baby, but just one man in the bed. And then it said every child
deserves a mother and a father. And that makes you think
who else is in the bed? And where’s the baby now? And it relates to these
concepts without actually coming out and saying– and they
eat feces and drink blood. But they want you
to remember that. And I think that when
we’re able to eradicate that type of messaging, the
whole thing will be over, because that’s pretty much
what it has boiled down to because the rational
arguments aren’t working for people anymore. So I actually am going to stop
talking now, although I had so much more written down. Oh, I have one more thing I
want to say before I do that. I think when you talk about
what these arguments boil down to– and particularly the
one that sticks the most, which is that children will– that accepting same-sex
couples into marriage devalues the institution itself. One point on that is the one the
Professor Nussbaum mentioned, which is that it defiles
the institution somehow. And that goes back to purity. But another point–
and this we see, again, in the ads, in particular, and
sometimes in briefs in courts. The other point is that children
won’t understand what marriage is if just anybody can be
getting into it all the time and we’re redefining that term. The redefinition point
comes up again and again, although it doesn’t
have a lot of content. So if you can redefine marriage,
or if anybody can get married, children aren’t going
to get what marriage is. And I think here, the
redefinition point, if you think about
what that means– it has to boil down to
gender essentialism, because there’s no other
difference in the definition of marriage from allowing
same-sex couples in, other than what is the sex
of the people involved? And that point, I think, has
not had such a high profile in the public debate
about this, but it’s worth thinking about because there’s
really nothing else that this is about, at the end of the day,
besides sex roles, if children are going to be so confused
by who can marry whom? So that was the last thing
that I wanted to say. And now I think we should
open it up to questions if people have any. You can go to the
mic if you want, but I can also
repeat your question. MARTHA NUSSBAUM: Why
don’t you go to the mic? Because it’s better
for everyone to hear. Maybe I’ll take the mic in here. AUDIENCE: Hi there. I wonder if– is this on? OK. I wonder if you could say a
little bit about what arguments you think are ultimately
going to result in reversing the Defense of
Marriage Act, and also how much difficulty you
think is caused by the fact that the president
of the United States currently objects to same-sex
marriage on religious grounds, and really how much
all of this comes down to Establishment Clause issues? MARTHA NUSSBAUM: Yeah. I must say, I’ve
been very distressed with my former
colleague when he says things like that,
because he as a professor of constitutional
law, he does know that that has no bearing
on the resolution of a constitutional question. And in fact, of course, it
isn’t even the official position of the church he belongs to. But that’s yet a further
complicating factor. [LAUGHTER] So I think that was
a campaign maneuver. But I think it is
distressing to hear him pull that kind of thing out. He does say he wants
the repeal of DOMA, and I think it
won’t get repealed if he doesn’t put the
machinery of the administration behind it. But right now, the
atmosphere is such that he’s getting leapt
on from all sides, and I think he’s just decided
he’s got his priorities and that’s not among
them right now. You saw what happened,
what, a week and a half ago, when he met with
the gay groups who had gathered in Washington. And he didn’t even
refer to the march which was taking place
right beside this more proper meeting. So he’s sidestepping
those issues. And I think, really, there are
a lot of good legal arguments that DOMA is unconstitutional. Andy Koppelman, for example,
has written very well on this. But I think none of that
will do any good politically unless the president really
puts his weight behind it. And at that point,
most people really would be glad to get rid of it. They just don’t want
to be the first person. And so there’s just got
to be a political tipping point at which point,
then, it becomes fine, and it’s the thing
you want to do. MELANIE ROWEN: I
have one small thing to add to that, which
is just to clarify that the president
actually took a very nuanced position during
the campaign, which is a tricky thing to do. And he did it on
a lot of issues. But on this one–
and we were really feeling this in California
because the nuance got lost politically. But what he was saying was,
I don’t support marriage for same-sex couples in my own
personal religious framework, but I also don’t think that laws
like the Defense of Marriage Act are appropriate, and I
think it should be repealed. And I liked that. But it was definitely
ignored on all the mailers that went out in the
Prop 8 campaign that were on the Yes on Prop 8 side
saying, President Obama doesn’t support same-sex marriage,
so neither should you. Yeah. AUDIENCE: –has come out. MARTHA NUSSBAUM: Well, I think
the first thing to be done is to really make it clear that
that’s what it is, and then oppose the very powerful legal
arguments that say that disgust is a sufficient condition
for making something illegal. Obviously, Lord Devlin said that
in the 1950s, Fitzjames Stephen going way back. And more recently,
our former colleague Leon Kass, when he was head
of the president’s Council on Bioethics said
that disgust is a sufficient condition for
making human cloning illegal. Well, that’s what he
was talking about. But if you read his little
manifesto, The Wisdom of Repugnance, it is a
perfectly general claim that pervasive disgust– Now, he’s different from Devlin. I think Devlin’s
argument is a kind of solidaristic conservative
Burkean argument that the fabric of society
can’t be too abruptly torn. And if it is torn, bad
things will happen. I think Kassism– it looks
like a theological argument. I think what he’s really saying
is God has implanted in us this response as a way of
steering us against evil. But in any case, whichever
version is out there, it’s definitely out there. It’s being made as a
respectable argument. And I think what was
great about Romer v Evans is that the
Supreme Court says, oh no, this doesn’t
give you even the weakest weak rational basis. So I think that’s
the legal side. How you get rid of it in people,
that’s a complicated matter. We can sort of see that it did– for the most part, it
has happened with race. I just don’t think there
are very many people exactly like my father
who are growing up now, and I think that’s great. Now how did that happen? I think a lot of it
is knowing people, going to school with them. So the enforced integration
was very important. And I can certainly see– and I’m sure
everyone in this room knows families where
when a child comes out, or some friend of
a child comes out, the attitudes really do change
because all of a sudden, it’s not a demon, but
it’s a human being that you already knew. So I guess
psychologically, I think that is the biggest thing. And the media play their role. I actually think Will and
Grace probably did more good than a lot of things. MELANIE ROWEN: I
love Will and Grace. The only thing I
was going to say, I sort of assumed
that your question was about looking at it from
a legal political perspective. The most important
question is how do we get voters to change
their minds just to lessen that reaction
enough, or to purposely put a governor on
themselves to say, you know, I still
feel grossed out, but I’m not so sure
that it’s right for me to vote this way anymore. And a practical anecdotal
backup of the foundation of your question– we had a
terrible time in California because a lot of our messaging
was these logical arguments. And part of that is because
it’s difficult to nail down, what is the culture
of California? Because it’s such
a diverse state. So an appeal to logic was one
of the more general messages that could be created. And it did OK with focus
groups, but it really didn’t get the voters
there, to just be like, this is about fairness. We all believe in fairness. This is why this is unfair– didn’t get us there. If you look at what’s
happening in Maine right now, the Maine campaign is being
run on a very different basis. And their response is,
Mainers don’t discriminate. We all know people
who are different. And it’s not a logical thing. It’s– are you with us? Then you don’t discriminate. It’s in the same ballpark, but
it’s really not the same thing. And I’m hopeful for
them with that message. MARTHA NUSSBAUM: Well, and it’s
like what the Iowa court did was something like that when
they wrote their opinion. That is, they used all the
traditional fairness arguments. But then there’s a lot of
stuff about how Iowa has always been in the vanguard of the
movement to be different and to protect right– Yeah, it was really,
really great, I thought. MELANIE ROWEN: It was awesome. MARTHA NUSSBAUM: Yeah. MELANIE ROWEN: It was all about
sex equality in Iowa, which was exciting. MARTHA NUSSBAUM: And it
was quite interesting that they were actually willing
to allow women to practice law, while Illinois was
still making it illegal. So it was all this
stuff they pulled out. MELANIE ROWEN: So you
guys shouldn’t feel bad about the marriage thing. AUDIENCE: I was
actually going to ask you to comment
about Iowa because I had occasion to experience
Iowa, and it was amazing. It was so positive,
and everybody there was so cooperative,
and everything just went so beautifully. And the ceremony was lovely. And it was grand. And I said to the gentleman
who performed the ceremony who was an appellate court
judge, I said, how did this happen in Iowa? And he said, well,
it’s a very long story, and I really don’t have
time to tell it to you now. But he said I’d be happy
to give you the references. Because it was a very
interesting trip that we got here. And I would like your comments– you made a few, but
why Iowa of all places? MARTHA NUSSBAUM:
Well, I think they knew that they had a democratic
majority in both houses of the state legislature,
democratic governor, and the court was
the right court. So the litigators were
well-primed for who they were dealing with, and they thought
this is not going to be a case like California, where you’re
going to have this backlash because of the heavily– well, and the rules,
their process. So to get something before
the voters requires, what, a very large supermajority? MELANIE ROWEN: Yeah, and twice
over the course of two years. So there’s breaks. MARTHA NUSSBAUM: Yeah. But as to the population,
I think probably there is something to this
idea that there’s a bunch of stiff-necked,
independent people who think differently. I guess the
interesting thing would be to comment on the difference
between Illinois and Iowa. And I don’t think I’ll
try to comment on this. My former student and glorious
campaign person, Jim Madigan, who’s running for state senate. Where are you, Jim? Is that you? And if elected as
a state senator, will be the first openly gay
person in the Illinois state senate. So we must all work
for Jim’s campaign. [APPLAUSE] And he was the head of the
LGBT group at the law school when he was a law student. So I know Jim has
interesting views on that. I don’t know if you want
to comment at this point or in this setting about
what the reasons are for some of the opposition
to the Illinois– JIM MADIGAN: Well, sure. I can say that here
in Illinois, we do have severe
religious opposition. It is the case that the
Catholic Conference of Bishops, which is run by our cardinal,
sends lobbyists to Springfield and are among the most powerful
lobbyists railing against not even a marriage equality piece
of legislation, but civil union legislation. So even an attempt to find
compromise and common ground by ceding the word marriage
and its potential religious components by trying
to set that to the side is not enough for our opponents. But I actually now just do have
a question for the two of you. One of the things we
see in all the polling is that all of the younger
folks, with increasing numbers, support marriage equality. So if we did nothing
judicially and waited on the democratic process,
we’re probably going to win. One of the things that
I think is a fear– I think Justice Ginsburg
has talked about the fact that at the time
of Roe versus Wade, states, cities, majority
of the population was coming to accept
reproductive freedom, and that Roe versus
Wade galvanized and energized an anti-choice
movement in a way that became destructive,
and to this day, I think, is still quite
pernicious and very divisive in our society. And so I guess my
question to Martha is, given that possibility, why
should the gay community take a chance on a
constitutional resolution at the federal level? Or should we? Or should we wait to do that? And I think it’s
an open question. It’s a difficult question. MARTHA NUSSBAUM: I think it is. I think it would be unfortunate
that it would reached the Supreme Court, because this
particular Supreme Court would not, I think, deal
with it very well, and I think it would
produce a backlash. But as to individual
states, should they take the legislative
route, or should they take the judicial route? I think it depends on the state
and what their structure is, like Iowa, and what’s
likely to transpire if the judicial resolution. Sometimes, it’s easier. If there are legislators
who are intimidated by the lobbyists from the
church as you portray, and so on, they may
actually be quite happy if the courts do it. And then they might be quite
delighted to have it taken off their shoulders that way. Whereas, to have to
do it themselves means they have to be accountable
for it next election. So I think in some
cases like that, where you think there’s
powerful opposition from a certain hierarchy,
but on the whole, the poll numbers
show you there’s a lot of support for
it– well, that might be a good case for
judicial action. MELANIE ROWEN: Yeah,
this has been– you know this
better than anybody. But this is, I think,
such a fascinating look at this sort of push and
pull between these three different fronts of what’s
happening in legislatures, what’s happening in
courts, and what’s happening in popular opinion? And in some states,
California, where you could sneeze and
amend the Constitution, you could wake up in
the morning and be like, I’d like to amend the
Constitution today, and you will. These things are out of
balance, but they all kind of pull each other forward
in different ways. And there’s a lot of scholars– especially associated
with U of C, actually, who have written on this
specific topic of how civil rights moves
forward in this way. And we’re seeing it in action. I don’t even have a
specific opinion in response to your question, because I just
think what happens will happen. MARTHA NUSSBAUM:
But I think it does look like it’s a
one-direction shift, not like things having to
do with the control of women and their bodies. And maybe it’s because it’s
really only about disgust. And the other
thing, sex equality, is about very
powerful, financial, and other power interests
and men’s control over women. I think perhaps more
tenacious, in the sense that it’s less likely to
just go out of existence in the next generation. I don’t see that happening. I don’t know. MELANIE ROWEN: One
other last thing that this makes me
think of is this is why, actually, the schools
is such a touchstone thing for both advocates like me
and also right wing groups. This is why a lot of their
commercials are about, what are they going
to teach in schools? Because everybody knows
that kids, increasingly, do not care if you’re
gay or not, and that’s very upsetting to some
people, and very much a relief to the rest of us. And schools are battlegrounds. And individual schools
in individual communities are battlegrounds. And whether a GSA
gets established at a particular school will have
an effect on hundreds of kids. And so all of this type
of work comes together to create this process
that is eventually going to result in the right
outcome, however long it takes. AUDIENCE: Hi. Hello. I’m Salim, and I
have two questions, one dealing with the
disgust issue and one dealing with litigation issue. Now, given our current
composition of our Supreme Court, I recently read in
the Wall Street Journal, many scholars claim that
Justice Kennedy doesn’t have a judicial philosophy. But recently in The
Wall Street Journal, it said that if you
couched arguments in libertarianism in
international law, you could sway him. So I want to know
your thoughts on being able to sway Justice
Kennedy to the more liberal side of this issue. And on the disgust
issue, to what extent do you think some of
the advocacy campaign ads, commercials that they
ran in California, such as one with two gay males
holding hands and reciting a love poem to each other. To what extent do you think
that actually dismantled their efforts to turn
over Proposition 8? Because I’m thinking
that the same issue and– MARTHA NUSSBAUM: Right. No, I think they did
later do a lot of study of the different
images and what worked. And as I understand it,
came to the conclusion that the most effective
images if you wanted to undo people’s resistance
to same-sex marriage were images that show parents
talking about how they wanted their children to be treated. So that the parents, of
course, were not themselves gay and lesbian. And so to show these
heterosexual parents who care about their
children was more effective than showing the gay
and lesbian people directly because of this disgust factor. Justice Kennedy– of course
he is a puzzle to many people because he doesn’t make
very tight arguments. [LAUGHTER] But on this issue,
for whatever reason– in both Lawrence
and Romer, he’s been the one who’s been
the deciding– not just the deciding vote, but the
writer of the majority opinion. And he has a very strong
and quite passionate view about individual
liberty in this regard. Now, unfortunately,
he writes so unclearly that how far it extends
is extremely unclear. So Lawrence, as
you probably know, whether it’s the
right to intimate sexual choice in a relationship
in somebody’s home, or is it something much broader? So there are all these– so it’s been interpreted
different ways by lower courts because cases like,
do you have a right to use a sex toy have
come out different ways in different circuits,
both citing his opinion, because his opinion is so
unclear as to whether it’s the right of the
individual to manage that individual sexuality
however that individual wants, or whether it’s
something much narrower, limited to intimate
relationships, perhaps, in somebody’s home. So it would be nice
if it were spelled out a little more clearly. But as to women’s
issues, he’s quite obtuse because he can be gotten at by
the most ridiculous propaganda. If you look at the partial-birth
abortion opinion that he wrote, he just says, oh,
it’s been shown that women regret
abortions, and so we must protect them
from the consequences of their irrationality. And so all this
paternalism that’s not backed up by any
serious evidence– somebody fed him that line,
and he bought it. But I think for whatever
reason on the gay issue, he really has some very sane
and consistent sympathy. MELANIE ROWEN: I don’t have
anything to add to that. [LAUGHTER] AUDIENCE: Melanie, I
wanted to thank you for the tremendous work
that you and your colleagues did in California and that
you’ve continued to do. On that front,
though, I’m curious what your reaction and what
your colleagues reactions have been to a federal
lawsuit filed in California. And I notice that that
hasn’t been mentioned, and I think it’s
a difficult issue. So for someone like you who
can actually speak to that, that would be great. And Professor Nussbaum,
is there any chance that you can talk
your colleague Judge Posner into writing a new
article about this issue, since he hasn’t written
on it since ’96, retracting that issue of
it being a different right, as Melanie mentioned earlier,
and perhaps just doing an economic analysis, as he
does so well, more so than he does any other legal analysis? MELANIE ROWEN: Yeah,
that would be great. MARTHA NUSSBAUM: You
talk about the federal– MELANIE ROWEN: Yeah. I assume that you’re referring
to Perry versus Schwarzenegger, which is the
federal lawsuit that was filed in California shortly
after we got the Proposition 8 decision. I also didn’t mention that the
Proposition 8 decision held that it was OK for the
voters of California to strip a constitutional right
from a particular subgroup of Californians,
despite the fact that the basis of
the court’s opinion would mean that
Californians could also strip any rights from
African-Americans or from Jewish people. There’s no distinction in
their opinion between Prop 8 and that kind of decision. Back to Perry. So from my perspective, as
an advocate at this point, the best thing about
the Perry lawsuit is that it was filed by
Ted Olson and David Boies. And for folks who are
not familiar with Ted Olson in this room, he
is an unlikely champion, from the perspective of
LGBT people, certainly. On a personal level,
obviously, there’s no reason to think that he
ever didn’t like gay people. But I don’t think that
anybody was expecting a former Solicitor General
for the Bush administration or the attorney for George
W Bush in Bush versus Gore to come forward and say
that he was outraged by the discrimination that
is visited upon gay people by prohibitions on
same-sex marriage and that he was ready
to fight for it. But that’s what he’s done. Just the fact that he has
impeccable conservative credentials. There’s nobody on paper who
is more conservative than Ted Olson, I would say. Yeah. And then among
conservatives, he’s one of the most
respected conservative legal scholars and
advocates in the country. For him to come forward
and make this his issue and devote this much of
his time to this issue is really heartening
because it really shifts the expectation for
who should care about this, and what is this really about? And it it sort of brings in
a whole new family of people, intellectually, and
then culturally, who are supposed to
be angry about this. And maybe now they will be. So that’s great. I hope that it comes out
well, is the other thing that I can say about it. The timeline on it is
going to be very long. Judge Vaughn Walker, who’s the
northern district of California judge who has been
assigned the case, is known for being
an excellent judge. He’s extremely smart. He has signaled at every
turn so far in this case that he’s really
interested in building a strong factual record
that will show whether there is a reason to exclude
same-sex couples from marriage. And the kind of evidence
that you’re talking about– the procreation
evidence, and so forth– that’s all going to come in. Or he’s not going to
let it in, because he’s going to say it’s not relevant. And regardless, he’s going to
build a record that is really, I think– because it will be truthful,
and because it will be accurate, and because it will be
detailed and complete, can only be good for our side. So that’s another thing to
look forward to with that case. And then again, the timeline
is going to be really long. So not much else to say
about that right now. MARTHA NUSSBAUM: About Posner– well, I co-teach with him often,
and I can never influence him in any way at all. [LAUGHTER] But actually, right now
he’s taken a new strategy of turning down a
lot more invitations because he thinks you ought to
focus on one project at a time, and he’s focusing very much
on this economic writing about the economic
collapse, which I think is some of his
best work in recent years. So I wouldn’t want to deflect
him from that, really. But I just find that it’s
more difficult to get him to participate in a
conference on some topic that usually he would have
enjoyed doing five or six different things. But he’s just in a
different frame of mind now, and so I think
probably not, actually. AUDIENCE: Thank you. GREG DARNELL: So I think we
have time for one more question. AUDIENCE: In the political
debate on this issue, it seems that there’s
constantly sort of blending of the issue
of religious marriage and civil marriage. And there’s sort
of an assumption that the two are the same. It seems that everyone
seems to always talk about religious clerics
marrying people and the fear that they will be
forced to do that. And I never really hear
a distinction in the fact that marriage is, in
fact, a civil issue, that there is such a
thing as civil marriage, and religious clerics are
given that power by the state. Can you just talk
about that to clarify? MARTHA NUSSBAUM: Yeah,
this is something I could have brought up
in my list of arguments, but I think it’s so
patently silly, these fear, that I didn’t bother
with that one. After all, you’re quite
right, that our country, unlike some of the
European countries, allows clerics in any church
to perform state marriages. But that’s always
been, as you say, quite distinct from performing
a religious marriage. And of course, we
know that there are many religious denominations
that allow and encourage same-sex marriage, including
my own, Reform Judaism. And that doesn’t mean that it
counts as a state marriage. It’s just that if you are a
minister, then that pretty much automatically
gives you the right to perform a state marriage. And you can even join
an online church. What is it, the
Unification Church? That conveys already
the right, that if you pay a certain amount and become
a minister of that church you can perform
marriages in many states. So it’s that kind
of dispensation. But of course, those
religious people have never been
forced to marry people who don’t meet the criteria
of their own religion. Rabbis are not forced
to marry non-Jews. Catholics or priests
are not forced to marry people who’ve
been divorced, and so on. My daughter married a
non-Jew, and our rabbi, who was not a particularly
liberal Reform rabbi, refused to marry them. We don’t have any
case against him. We just have to
go around and find somebody who will marry them. And luckily, the cantor agreed. So it’s just going
to be like that, that the religious
personnel will have the same latitude
they always had, to do things by the lights
of their own denomination or even their own
particular, as in the case of my daughter, their
own particular religious preferences. MELANIE ROWEN: Yeah. It’s such a common sense point. And I feel like
it’s a thing that really bugs people who are aware
of it, because it’s so obvious. MARTHA NUSSBAUM: Yeah, it is. MELANIE ROWEN: But it really
does make a difference to a lot of people who
aren’t familiar with it. And it is one of the
last remaining ways– one of the last remaining
buttons that can really be pushed to convince people
to vote no on marriage equality issues, because they
are worried that that would be a step
backwards for freedom that they cherish in some way. But they shouldn’t
be worried about it, because it’s actually not. That’s not the law. So the solution that
we have actually been employing to deal
with this in states where we have this
opportunity is to write in religious exceptions
to laws that establish marriage equality, even though those
exceptions are already part of the law. But we just we just write them
in there just to make everybody feel better and know
that they’re there. And that’s actually
been a successful tactic in a couple places. And it also works
in ballot fights. If the supporters
of marriage equality have the opportunity to
create the language that is going to be voted on
by the voting public, you can put these
exceptions in there, and people feel
more comfortable. And you can work that
into the messaging, then. And it’s a solution that
really works for everybody. It’s not some
disingenuous tactic. We’re actually
assuaging people’s fears and also following the law,
but establishing equality. But we do see it
over and over again. The other thing I wanted to
say about this point is– something that I don’t
talk about too much about the California
litigation because it often seems like a side point– is that we marshalled all of
these front of the court briefs from all of these
different groups for all kinds of purposes,
making all kinds of arguments. One of my favorites was
a brief by a huge number of religious groups
and a huge range, from every major
religion, and then many denominations
within those religions, making the argument
that it was actually an infringement of
their religious freedom to deny them the
opportunity to perform state-sanctioned marriages for
a subset of their congregants, their same-sex couples
who wanted to get married. So here, they were saying,
we’re people of faith, and we actually want to
get our people married, and you are not allowing us
to do that in the same way that we can do it for
our other congregants, and that is offensive– which is one of my
favorite arguments out there because it’s great. Oh, excuse me Sorry. [APPLAUSE] MELANIE ROWEN: [INAUDIBLE] MARTHA NUSSBAUM: Yeah. That was awesome. Great questions. [CROWD CHATTER]

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  1. What a shameless parade of strawmen and flagrant disregard for the principle of charity. It is a sad day for the world when someone so highly regarded as a lover of wisdom bases her support for federal intrusion into civil matters with literally no engagement with the utterly rational opposition. Compare: https://www.youtube.com/watch?v=I7AwGxqjPWg

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