Date: Mon, 19 Jun 1995 21:27:54 -0400 From: listserv@gibbs.oit.unc.edu X-Lines: 9982 Archive GAYLAW, file journal.2. Part 1/1, total size 485110 bytes: ------------------------------ Cut here ------------------------------ Becoming Visible by Mary Becker "I have come to believe over and over again that what is most important to me must be spoken, made verbal and shared, even at the risk of having it bruised or misunderstood. That the speaking profits me, beyond any other effect. ... And of course I am afraid, because the transformation of silence into language and action is an act of self-revelation, and that always seems fraught with danger."1 In this, the second issue of the National Journal of Sexual Orientation Law, teachers and students discuss the increasing visibility and continuing invisibility of lesbian and gay people and issues in law schools. Francisco Valdez presents data on the increasing substantive coverage of lesbian and gay issues in law school courses. Between 1990, when Gene Schultz concluded his study,2 and 1994, when Francisco Valdes considered the question, the number of law schools offering courses or seminars primarily focused on lesbian and gay issues increased dramatically: from 13 schools offering 14 primary courses to 44 schools offering 48 primary courses.3 The Valdes study is important both as a progress report and for use in pushing for further progress, giving students and faculty data on how coverage of our issues is becoming part of the curriculum in American law schools. Steven Hartwell's study shows a correlation between the presence of out teachers on a faculty and lesbian and gay courses, student groups, anti-discrimination policies, and promotional literature welcoming to lesbian and gay applicants. These findings too can be used in pushing for change, highlighting the need for out faculty members so that straight as well as lesbian and gay students have the opportunity to learn from a diverse faculty in an environment likely to be more lesbian and gay tolerant or friendly. The final two articles are first person accounts of students who were gay and out in the Harvard Law School class of 1995. Last fall, I taught a seminar on Critical Race and Lesbian-Gay Legal Theory at Harvard. For our last session, I wanted the seminar to read first person accounts of law school experience by a diverse set of students, but was unable to find any essays by lesbian and gay students. At the start of the semester, I therefore suggested to students that they consider writing such pieces as one of their seminar papers. A number of students did so, and we were able to read their work for our last session. Kevin Reuther and Brad Sears were two of the students in that (wonderful) seminar. Their essays describe being out and gay at a large elite law school without a single "out" person on the regular faculty and where, during the first year, few teachers cover lesbian and gay issues at all or present lesbian and gay people other than as criminal defendants. Reuther and Sears describe the pain and necessity of making points and raising issues from a lesbian and gay perspective time after time in class after class. Although neither Reuther nor Sears stress this point, one cannot read their accounts without being impressed by their courage and dignity in navigating so hostile a region. The system rewards those who stay in the closet, and both of these men deliberately faced overt and covert hostility or indifference together with the loss of benefits that could have been theirs had they remained silent. In reading these autobiographical essays, I was struck by how similar are the experiences of students and faculty. Standing at the front of the room does not eliminate either the necessity or pain of being "out" in an environment in which "reasonable" people agree that "reasonable" people can disagree about whether you are entitled to basic human dignity and respect, whether your speech should be suppressed, whether your most intimate relationships should be criminalized. Being a member of the faculty does not eliminate the discomfort and hurt one feels when discussing whether government can legitimately and reasonably discriminate against you. Sometimes this happens with colleagues who, even if supportive of lesbian and gay rights, may regard the discussion as one delectable course in the wonderful "intellectual feast" ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 147--------------------------------- that is the law. Straight participants engage in such discussions without any apparent appreciation of how it feels to have your right to be an equal citizen regarded as an intellectual delicacy and a matter of debate on which reasonable people might differ. Even many lesbian and gay-friendly colleagues are likely to react differently to overt racism or sexism and homophobia, regarding racist and sexist beliefs as immoral but homophobia as legitimately based on moral convictions. Just writing this makes me feel tense and inarticulate. Similar feelings have overwhelmed me in interactions with students, Last fall, I sat as a moot court judge while a student argued that lesbian sexuality was "essentially criminal," thus justifying the firing of an out lesbian on a police force in the state of Aimes. This argument was made in all earnestness, though the Aimes sodomy statute covered (incredibly) not just all heterosexual and homosexual anal and oral sex but also all heterosexual and homosexual contact between the genitals of one person and the fingers of another person (so-called "digital sex" in Aimes, if I remember correctly). Thus, in Aimes, all but the most inhibited of heterosexual and same-sex couples violated the criminal code when sexually intimate, but lesbian sexuality - not sexuality in general - was "essentially criminal." The student making this argument had, of course, no idea what lesbians "do" or (apparently) of what most heterosexuals "do." In such a situation, one is forced either by silence to agree with the speaker that lesbian sexuality is essentially criminal or by speaking reveal intimate details which properly should not be mentioned in a moot courtroom. I compromised. I remember, for example, mentioning that tribadism would be a legal form of lesbian in sexuality in Aimes without defining it. I wonder if the student ever figured out what I was talking about. The student arguing that lesbian sexuality was "essentially criminal" in Aimes was, of course, right in reality. Sodomy statutes, no matter how broad, are understood as prohibiting all same-sex erotic contact and no consensual adult heterosexual erotic contact.4 Such statutes -- regardless of wording or actual coverage -- criminalize only and all our sexuality, no matter how loving. Last week, I judged a moot court on the Colorado case.5 Counsel for the state of Colorado justified the statute as necessary to prevent the devaluation of anti-discrimination laws (though in Colorado, anti-discrimination laws covered tobacco smokers); to avoid burdening religious exercise, and to promote family values, and to save money by avoiding enforcement actions. I had to sit there and accept these rationales as superficially plausible, statements that could be made by a reasonable person with a straight6 face. This is a shell game in which we lose. Bias is transformed into neutral reasons, and no one says out loud that the emperor has no clothes. Imagine how law schools would treat similar arguments that state discrimination against women -- for example, a statute prohibiting mothers from working in the wage-labor market -- is justified by the need to protect the "traditional" family or to prevent the state from burdening the free exercise of those whose religion teaches that mothers should not work outside the home. Such arguments would not be made, and if made, would not be seen as reasonable, because they simply restate bias in terms of tradition and religion, both of which have been important participants in the creation of patriarchy and many other evils. Yet such arguments seem something other than the restatement of bias when the question is the right of sexual minorities to the pursuit of happiness. Becoming visible means being forced into categories that do not fit, that are premised on the denial of our reality. This is true generally in American culture and particularly so in legal argument. In the culture, being out means being defined in terms of what one does in bed and as "essentially" sexual: a hyper sexual being whose core identity is sex, sex, sex. In law, arguing for lesbian and gay rights often requires accepting absurd, crazy-making categories and assumptions: that your sexuality is not chosen or at least would be extraordinarily difficult to change (in equal protection arguments for suspect-class protection of lesbian and gay people7); that homophobia is simply an aspect of sexism (in equal protection arguments for lesbian and gay discrimination as sex discrimination); that though your conduct (loving!) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 148--------------------------------- can be criminalized, your speech cannot (in free speech).8 For many of us, our sexual orientation is something courageously chosen.9 We want to make arguments that recognize sexual choice as legitimate. This should be possible. We live in a liberal society in which "choice" is a trump card justifying all sorts of very problematic heterosexual relationships (she chose to sign the surrogacy contract or to go to his apartment on their first date or to sign the prenuptual agreement waving all economic protection at divorce), but when we choose good relationships, choice undermines their legitimacy. Viewing lesbian and gay discrimination as only a manifestation of sexism (and therefore sex discrimination) suggests that the agenda for change must focus on the needs of (straight) women, thus shifting attention back to heterosexuals and their relationships and away from us. Further, although it is difficult to identify how homophobia is distinct from sexism in a culture in which the two are so intertwined, on a theoretical level we are likely to miss key aspects of heterosexual domination if we look at our oppression only through the lens of gender.10 Such a focus will surely miss the ways heterosexual women contribute to our second-class status by distancing themselves from "lesbians" and maximizing their own heterosexual privilege in countless other ways, while viewing us from a vantage so privileged they imagine themselves perfectly innocent. Accepting the speech-conduct distinction requires conceding that our speech and conduct are separable aspects of our experience and being.11 At most, this line of argument can justify only talk, talk, talk, as though being able to chat (about state-enforced celibacy?) were all justice requires since good, loving relationships can reasonably and legitimately be criminalized. Perhaps this is the crux of the difficulty in being out in our society and the law: neither the culture nor the legal system can perceive the ways in which same-sex relationships can be more intimate and fulfilling than heterosexual relationships, and not merely on an erotic level, though certainly there too. Yet, perhaps especially for women (I do not feel competent to speak for men), a relationship with another woman can provide a far richer and more supportive intimacy than that possible with most men. This aspect of our lives is reduced, in culture and in law, to sexual preference, as though the only advantages of a same-sex relationship were genital. Current constitutional categories and arguments do not recognize our reality as relevant.12 Yet until the goodness and worth of our relationships can be perceived, we will continue as second-class citizens. I have mentioned only a few of the ways in which participation in legal culture often leaves one feeling that success would be an oxymoron, that legal recognition of lesbian and gay rights is inconsistent with the basic terms of legal discourse so that being out leaves one operating under constraints that feel (almost) as confining as the closet. Yet visibility is better than the alternative. Each of the pieces in this symposium illustrates this point. Valdes and Hartwell show that out faculty create an environment in which our issues are more likely to be considered, a prerequisite for change. Reuther and Sears describe the advantages, even on emotional levels, of being out, despite the pain. The legal categories and doctrines that deny our reality and view bias as reasonable can change, but will not do so without criticism. True, the crux of homophobia and heterocentrism is not a failure to appreciate some fine intellectual point. I do not know what the crux is, but I know it functions by defining us entirely in sexual terms and then demonizing our sexuality while idealizing heterosexuality. Yet the value of any human relationship turns on particulars of the relationship, not whether it can be categorized as homosexual or heterosexual. The most important aspect of being out may therefore be the potential to change the perception of our relationships. The point is not to improve the thought processes of straight people, but to create an environment in which we, and our relationships, are visible in all dimensions, not ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 149--------------------------------- just the (demonized) sexual. Only in such an environment will we be allowed to flourish like other human beings. ENDNOTES 1. Audre Lorde, Sister Outsider 40,42 (1984). 2. See Gene P. Schultz, The Inclusion of Sexual Orientation in Non-Discrimination Policies: A Survey of American Law Schools, 2 L. & Sexuality 131, 136-137 (1992). 3. Francisco Valdes, Tracking and Assessing the (Non)Inclusion of Courses on Sexuality and/or Sexual Orientation in the American Law School curriculum A: Reports From the Field, __ Jr. Sexual Orientation & Law __ (1995). 4. See Janet E. Halley, Reasoning About Sodomy: Act and Identity in And After Bowers v. Hardwick, 79 Va. L. Rev. 1721 (1993); Janet E. Halley, Misreading Sodomy: A Critique of the Classification of "Homosexuals" in Federal Equal Protection Law in Body Guards at 351 (Julia Epstein & Kristina Straub, eds. 1991); Nan Hunter, Life After Hardwick, 27 Harv. C.R.-C.L. L. Re. 531 (1992). 5. Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (state supreme courts strikes state constitutional provision that provides that neither Colorado nor any part thereof can enact an ordinance or policy to prohibit discrimination against homosexuals, lesbians, or bisexuals). 6. Pun intended. 7. It is, of course, quite possible to make such arguments without insisting on immutability (or something close to it). See Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 46 Stan. L. Rev. 503 (1994). Such arguments are, however, often made. For example, respondents made the argument described in text in the moot court of the Colorado case I judged last week. 8. I first heard this point made by Bill Rubenstein. 9. Many others feel that their sexual orientation is genetic and not chosen, of course, and for them the argument described in text will be more comfortable. 10. See discussion of relationship in Eve Kosofsky Sedgwick, The Epistemology of the Closet 27-35 (1990). 11. Again, I first heard this point made by Bill Rubenstein. 12. For a discussion of the difficulty women have describing the pleasure and pain of their lives, see Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 3 Wis. Women's L. J. 81 (1987). Tracking and Assessing the (Non)Inclusion of Courses on Sexuality and/or Sexual Orientation in the American Law School Curriculum: Reports From the Field After a Decade of Effort Francisco Valdes1 [Copyright 1995, Francisco Valdes] INTRODUCTION The past ten years mark the first decade of proactive and (somewhat) organized efforts to include sexuality and sexual orientation in American legal education -- a decade that builds on the individuated efforts of even earlier pioneers. During this seminal decade a remarkable ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 150--------------------------------- increase in the inclusion of courses on sexuality and/or sexual orientation in the curriculum of American law schools has taken place. At the same time, as we prepare to enter a second decade of effort on behalf of sexuality and sexual orientation legal education, most law schools in this country still fail to provide an opportunity for their students to learn about the laws and the policies that regulate the expression of human sexualities. This mixed state of affairs is cause both for optimism and for disappointment;.2 it counsels for renewed and increased efforts in this regard as we bring the first decade to a close and turn to the opportunities and challenges of the second decade ahead of us. This mixed state of affairs is itself quite remarkable, given the universal relevance of this topic: compared to the extensive coverage of subjects such as corporations and securities -- which in everyday life affect directly only a relatively few players in our society -- it is remarkable that the coverage of a subject like sexuality, which directly affects every single member of society in everyday life, should receive such relatively silent treatment. To help bring some balance and, ideally, some progress, to this state of (mostly) silence, this article reports on the (non)inclusion of courses on sexuality and/or sexual orientation in the law schools of this country as of 1995. In doing so, this article pursues several objectives at once. First and foremost, the article sets out to track and assess the extent of course offerings devoted "primarily"3 to sexuality and/or sexual orientation in the law schools of the nation so that we may be aware of progress, or its lack, in recent years, and so that we thereby may inform our efforts on behalf of such courses in future years. A corollary to this first objective is to identify "related"4 courses that provide some significant or substantial coverage of these issues so that we can draw a broader and more complete sense of progress regarding this subject. However, the main focus and purpose of this article is to map the existence and operation of "primary" courses, which are a key gauge of a law school's coverage of and commitment to education on this subject. This article also attempts to advance the quality of legal education regarding sexuality and/or sexual orientation by noting similarities in the types of approaches, or sources of materials, that individual teachers in this area have adopted in the absence of standardized established course materials or structures.5 Similarly, this article sets out to facilitate communication between and among legal educators by identifying faculty members currently teaching in this area, helping in this way to promote dialogues or multilogues, and thus a more palpable sense of professional community, that could enhance the way(s) in which we teach our classes. Ultimately, and as a whole, this article endeavors to encourage the unfinished and continuing process of meaningful inclusion for courses on sexuality and/or sexual orientation in the American law school curriculum as we stand on the cusp of a second decade of work calculated to ensure the attainment precisely of this goal.6 Section I of the article outlines the history and the methodology of this project. Section II then summarizes the basic documentary results and findings of this project. Section III continues with a set of four tables that present the raw data gathered via this project in their entirety. Section IV closes the article by noting some concluding and forward-looking thoughts that may be drawn from the data. I. HISTORY AND METHODOLOGY This project began in the fall of 1994 when a questionnaire was sent to the dean of every law school belonging to the American Association of Law Schools (AALS).7 Of 176 schools, 93 responded to that first questionnaire. About six weeks later, a duplicate of that questionnaire was sent to all of the non-responding schools, again asking for the requested information. Of the 83 schools contacted in this follow-up mailing, 60 responded. About six weeks later, every school that still had not responded was contacted by telephone to obtain the requested information.8 At the conclusion of this process, fully 100% of all law schools belonging to the AALS had been documented. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 151--------------------------------- The documentation process included a request that each law school identify the faculty member(s), whether full-time or otherwise, who taught courses on sexuality and/or sexual orientation. The next step therefore was to contact each identified faculty member directly to obtain further information regarding the nature, contents, and design of these courses.9 In this way, a bank of syllabi was established.10 This bank forms the main source of supplemental information presented in this article to identify general approaches to, and materials used in, the teaching of these courses in American law schools today. Additionally, every faculty member identified by a law school as teaching in this area was invited to attend a luncheon meeting at the 1995 AALS Annual Meeting, held in New Orleans. The 47 attendees at that luncheon meeting were given copies of the tables and asked to modify or add to the information thus far compiled via the mailed questionnaires and the telephone inquiries.11 This new data then were incorporated into the tables of results set forth below. Finally, each law school reporting the existence of a "primary" course was contacted by telephone during the spring of 1995 to confirm the data and to learn more details about recent enrollment figures specifically for the "primary" courses. This final step completed the data-gathering phase of the project. These findings are streamlined and summarized below, and then presented in full in the tables of data that follow. II. SUMMARY OF FINDINGS AND RESULTS As mentioned at the outset, the findings and results gathered via this project present a mixed picture. Numerous law schools report some form of coverage of sexuality and/or sexual orientation legal issues in their curriculum: 44 schools reported offering 48 courses that are devoted "primarily" to sexuality and/or sexual orientation,12 while 40 schools reported offering 64 courses that are "related" to this subject in that they cover the subject in some significant or substantial fashion (for example, as in AIDS & the Law).13 These numbers (adjusted for overlaps) thus show that 66 of 176 American law schools -- over one third of the total -- have made room in their curriculum for course(s) that are primarily devoted, or substantially related, to this subject. Yet these numbers simultaneously show that most law schools -- 110 of 176 -- still fail to provide their students with any form of opportunity to engage in the formal study of these legal issues in the context of a course. These numbers thus show significant but qualified inclusion in absolute terms. Similarly, these numbers show a marked comparative increase -- approaching double - - in the number of schools offering these types of courses during the past five years. In a series of studies concluded in 1990, Gene Schultz found that 35 schools offered 48 courses14 that were either "primary" or "related" as those descriptors are used here.15 As indicated by course titles, it further seems that, of those, 13 schools offered 14 "primary" courses,16 and that 23 schools offered 34 "related" courses.17 By contrast, as just noted, the 66 schools identified in this study today offer a total of 112 "primary" and/or "related" courses.18 These comparative results thus show a dramatic increase both in schools and in course offerings in relative terms. These absolute and comparative findings also depict a two-track expansion of legal education on this subject in recent years. The results clearly show an expansion at the curricular level-- an expansion from 14 to 48 of "primary" courses within the collective American law curriculum, which represents a threefold-plus increase in the number of specialized courses on sexuality and/or sexual orientation being offered by American law schools as a whole. This increase expands the curriculum itself. However, these results also show an expansion of coverage at the course level-- an expansion of material and, presumably, time devoted to this subject within "related" fields, or ongoing studies, of law. These results thus show a dual expansion both along specialty and mainstream levels-- a simultaneous move towards specialization and mainstreaming that on the whole can help avoid even the appearance of ghettoization and that, as a practical matter, reaches more law students more often during their years of formal education. Yet a closer comparison of both sets of results shows that eight schools actually have ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 152--------------------------------- lost both "primary" and "related" courses that existed in 1990, such that they do not offer any course of either type today.19 Thus, while showing that significant overall progress in absolute and relative terms indeed has been made, these results also show that such progress may be contingent and precarious-- and that, in some instances, progress made in fact has been lost in the subsequent and few years. These net results thus caution against complacency in the wake of a generally successful decade. Additionally, the enrollment figures for "primary" courses show the average size of these classes range from three to 60 students per course offering. Moreover, the highest concentration of classes falls within a range of 10-25.20 Numerically, these courses therefore reach relatively few American law students even though, of course, these numbers are supplemented by those of students enrolled in "related" courses. These enrollment figures, in tandem with the overall results, provide, at best, grounds for cautious optimism: they depict a definite but limited availability, accessibility, and delivery of educational opportunity regarding sexuality and sexual orientation in formal American legal education. These results, in other words, depict a definite but limited penetration of the curriculum and activities of the American law school. These results also show a mixed, but not too surprising, geographic distribution for the current course offerings. By and large, the findings of this project indicate that progress is concentrated in schools located along the East and West coasts, or schools located in urban, metropolitan areas, or in schools that are relatively prominent and prestigious.21 Thus, progress is being made, but not across the board, nor consistently throughout the country. These results show pockets, rather than blankets, of progress. On a systemic level they similarly depict a definite but limited penetration of American legal education. This brief summary indicates how the findings regarding the numbers and types of courses and schools being offered as of 1995, and as we shift from the first to the second decade of this effort, present cause for cautious optimism and determined perseverance. In order to sort through these mixed findings, and to help guide the future direction of efforts in this regard, the data next are broken down into five sets of findings in the Summary Table depicted immediately below. The summary categories presented below, in order of presentation, are: Schools, Courses, Scheduling, Credits, and Faculty.22 This Summary Table then is supplemented with the four tables that report the raw data in their entirety. Summary Table I. SCHOOLS 66 Total number of schools offering either or both types of courses: "P" (Primary) "R" (Related) 26 Number of schools offering only "P" courses 44 Number of schools offering "P" courses (with or without "R" courses) 22 Number of schools offering only "R" courses ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 153--------------------------------- 40 Number of schools offering "R" courses (with or without "P" courses) 18 Number of schools offering both types of courses II. COURSES 112 Total number of both types of courses 48 Number of "P" courses 64 Number of "R" courses III. SCHEDULING Total number of courses offered: 3 twice every year 63 once every year 26 every other year 2 every three years 5 "Varies" 13 "New" Number of "P" courses offered: 1 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 154--------------------------------- twice every year 28 once every year 9 every other year 1 every three years 3 "Varies" 5 "New" Number of "R" courses offered: 2 twice every year 35 once every year 17 every other year 1 every three years 2 "Varies" 7 "New" IV. CREDITS Total number of courses offered for: ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 155--------------------------------- 2 1 credit 46 2 credits 53 3 credits 9 "2 or 3" credits 1 4 credits 1 "3 or 4" credits Number of "P" courses offered for: 0 1 credit 22 2 credits 22 3 credits 4 "2 or 3" credits 0 4 credits 0 "3 or 4" credits Number of "R" courses offered for: 2 1 credit ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 156--------------------------------- 24 2 credits 31 3 credits 5 "2 or 3" credits 1 4 credits 1 "3 or 4" credits V. FACULTY 110* Total number of faculty teaching either or both types of courses 57* Total number of faculty teaching "P" courses 35* Number of "P" teachers who are full-time 23* Number of "P" teachers who are adjunct or visiting 61* Total number of faculty teaching "R" courses 48* Number of "R" teachers who are full-time 13* Number of "R" teachers who are adjunct or visiting * See supra note 22 for explanation of numerical discrepancies. As the Summary Table and preceding discussion indicate, the courses devoted "primarily" to sexuality and/or sexual orientation are the specific focus of this project. These courses, as the findings show, generally are offered for two or three academic credits, and ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 157--------------------------------- generally are offered at least once every year: of 48 "primary" courses, over half are offered at least annually and all of them are offered for two or three academic credits. These figures thus indicate that these courses are being added to the law school curriculum with the same level(s) of weight and with the same cycle(s) of frequency that generally apply to upper-level elective law courses. The enrollment figures for "primary" courses additionally, and similarly, show that class sizes for these courses, which generally concentrate in the range of 10-25 students per course, also tend to reflect the usual or typical enrollment for "boutique" courses or seminars.23 Interestingly, the Summary Table also indicates that six of the 48 "primary" courses are "new" courses, meaning that they have been introduced into the curriculum during the past year. And, seven of the 64 "related" courses are "new" too. In combination, these figures show that 13 of the 112 courses -- or about 10% of the total -- were introduced in just the past year. These statistics are significant because they indicate a robust sense of continuing momentum regarding the inclusion of these courses and issues in the curricular menu of American law schools. This indication is corroborated by the comparative data as well. For instance, in his series of studies conducted between 1985 and 1990, Gene Schultz reported 13 schools offering 14 courses that here would be designated as "primary," whereas this article reports 44 schools offering 48 such courses, thus more than tripling both the number of schools and courses specifically under the "primary" category during the past five years. More generally, and at the institutional level, Schultz also found that the total number of schools reporting either "primary" or "related" courses offerings had quadrupled during the five years spanning his series of studies, ultimately reaching a total of 35 schools by 1990,24 whereas this project reports a total of 66 schools offering either or both types of courses by 1995. Thus, in the past five years the number of schools reporting either or both types of courses has nearly doubled, while in the immediately-preceding five years this number had quadrupled. The past ten years, both in absolute and relative terms, thus reflect exponential (though perhaps currently slowing) momentum at the institutional level.25 Another significant set of statistics reported above in the Summary Table is that both "primary" and "related" courses are usually taught by full-time, tenured or tenure-track faculty: over half of the 48 "primary" courses are taught by full-time faculty, and most of the 64 "related" courses are taught by full-time faculty.26 These findings are significant because they suggest that both types of courses are generally, slowly but surely, being embraced by the category of faculty members with the most power and influence in American legal education. Additionally, these findings indirectly suggest two other related developments: a general climate of increased acceptance for sexual minority issues, students, faculty, and staff in legal academia as well as a higher number of openly lesbian, bisexual, and gay students, faculty, and staff populating the corridors and classrooms of American law schools. These two points are suggested by the findings of this project because the increase in schools and in courses indicates a growing constituency for the study of these issues within legal culture, and a growing responsiveness to this constituency by dominant forces within legal education. To some extent, these findings consequentially (and indirectly) indicate both tangible and attitudinal progress regarding awareness of, and concern for, the presence and treatment of sexual minority persons and interests in American law schools.27 The data presented above in the discussion and Summary Table, on balance, suggest or depict a gradual and uneven but steady and continuing inclusion and mainstreaming of sexual minority issues and people in contemporary American legal education at the curricular level, at the administrative level, at the student level, and at the faculty level. This process of (non)inclusion, as noted, is measurable both in absolute and comparative terms. These findings, which are based on data provided directly by the schools, in turn can be supplemented with information provided by individual faculty members who submitted their syllabi specifically for "primary" courses. This supplemental information is especially helpful in providing a glimpse of the design and operation of the "primary" courses being offered today. The supplemental findings summarized below therefore are based on the 20 "primary" course syllabi provided directly by the 18 faculty members included in the Syllabi Table that ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 158--------------------------------- is presented immediately below.28 Syllabi Table Faculty Information Course Information School Information Jane Harris Aiken Gender, Sexuality & the Law (2 credits, every other year) [Enrollment: 49] The University of South Carolina Main & Green Streets Columbia, SC 29208 (803) 777-8295 jhaiken@univscvm.csd.scarolina.edu Mary Becker [with Nancy Eineshaeur Bigelow Writing Instructor] Critical Race Studies & Lesbian\Gay Legal Theory (3 credits, new course; frequency to be determined) [Enrollment: 7] University of Chicago Law School 1111 East 60th Street Chicago, IL 60637 (312) 702-9596 mary_becker@law.uchicago.edu Mary Anne Bobinski [with Christopher Bacon (Adjunct)] Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 10] University of Houston Law Center 4800 Calhoun ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 159--------------------------------- Houston, TX 77204 (713) 743-2108 mabob@uh.edu Craig W. Christensen Law & Sexual Orientation (2 credits, once every year) [Enrollment: 21] Southwestern University School of Law 675 South Westmoreland Avenue Los Angeles, CA 90005 (213) 738-6792 Barbara J. Cox Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 7] California Western School of Law 225 Cedar Street San Diego, CA 92101 (619) 525-1496 bcox@cwsl.edu Barbara J. Cox (Visiting Faculty) Sexual Orientation & the Law (2 credits, varies) [Enrollment: 6] University of San Diego School of Law 5998 Alcala Park San Diego 92110 (619) 525-1496 * bcox@cwsl.edu Dan Danielsen (Adjunct) Law, Sex & Identity (3 credits, once every other year) [Enrollment: 9] Harvard University Law School Cambridge, MA 02138 (617) 832-1192 Jon W. Davidson (Adjunct) Sexual Orientation & the Law (2 credits, every other year) [Enrollment: 18] ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 160--------------------------------- Loyola Law School 1441 W. Olympic Boulevard P.O. Box 15019 Los Angeles, CA 90015 (213) 977-9500 Ext. 225 * Jon W. Davidson (Adjunct) [with Christine Littleton] Sexual Orientation & the Law (3 credits, new course; frequency to be determined) [Enrollment: 16] University of California-Los Angeles 405 Hilgard Avenue School of Law Los Angeles, CA 90024 (213) 977-9500 Ext. 225 * Ruth Harlow (Adjunct) Sexuality & the Law (2 credits, once every year) [Enrollment: 60] Brooklyn Law School 250 Joralemon Street Brooklyn, NY 11201 (212) 944-9800 Ext. 545 * Arthur Leonard Sexuality & the Law (2 credits, twice a year) [Enrollment: 20] New York Law School 57 Worth Street New York, NY 10013 (212) 431-2156 asleonardaol.com (preferred) tyws43a@prodigy.com Christine Littleton [with Jon W. Davidson] Sexual Orientation & the Law (3 credits, new course; frequency to ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 161--------------------------------- be determined) [Enrollment: 16] University of California-Los Angeles School of Law 405 Hilgard Avenue Los Angeles, CA 90024 (310) 206-1245 littln@law.ucla.edu Stephanie Ridder Sexuality & the Law (2 credits, once every year) [Enrollment: 20] George Washington University National Law Center 2000 H Street Washington, DC 20052 (202) 994-6260 sridder@main.nlc.gwu.edu Ruthann Robson Sexuality & the Law (3 credits, varies) [Enrollment: unavailable] City University of New York (CUNY) School of Law Queens College 65-21 Main Street Flushing, NY 11367 (718) 575-4447 rr@maclaw.law.cuny.edu Vincent J. Samar (Adjunct) Sexual Orientation & the Law (2 credits, once every year) [Enrollment: 6] Chicago - Kent College of Law Illinois Institute of Technology 565 West Adams Street Chicago, IL 60661-3691 (312) 906-5000 Jane L. Scarborough Sexual Orientation & the Law (3 credits, once every year) [Enrollment: 12] Northeastern University ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 162--------------------------------- School of Law 400 Huntington Avenue Boston, MA 02115 (617) 373-5775 scarboro@neu.edu Jane Schacter Sexual Orientation & the Law (2 or 3 credits, once every year) [Enrollment: 10] University of Wisconsin Law School 975 Bascom Mall Madison, WI 53706 (608) 263-7408 schacter@facstaff.wisc.edu Francisco Valdes Law, Policy & Sexuality (3 credits, once every year) [Enrollment: 12] California Western School of Law 225 Cedar Street San Diego, CA 92101 (619) 525-7055 fvaldes@cwsl.edu Dominick Vetri Sexual Orientation & the Law (2 credits, once every year) [Enrollment: 8] University of Oregon School of Law 1101 Kincaid Street Eugene, OR 97403 (503) 346-3868 Michele A. Zavos (Adjunct) Sexual Orientation & the Law (3 credits, once every year) [Enrollment: 8] American University Washington College of Law 4400 Massachusetts Avenue, N.W. Washington, DC 20016 (202) 885-2600 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 163--------------------------------- * = Telephone numbers for the adjuncts refer to the school's number unless marked with an asterisk Though it was impracticable to "publish" the 20 syllabi gathered for this project, their contents readily reveal some remarkable similarities in approaches to, and structuring of, the courses devoted "primarily" to sexuality and/or sexual orientation.29 Perhaps most notably, all of these "primary" courses uniformly emphasize cross-disciplinary studies of sexuality and/or sexual orientation legal issues by bringing together a variety of sources from multiple disciplines for use as course materials. This cross-disciplinary approach in turn seems to engender expansive and nuanced treatments of the legal issues regarding sexuality and/or sexual orientation. For instance, most of the courses cover "identity" issues, including the status/conduct distinction, and also explore the relationship between gender and sexuality. In descending order of prevalence, these cross-disciplinary materials tend to emphasize law review articles, book excerpts, essays or articles from gay and lesbian cultural studies, reports and clips from newspapers or magazines, and, finally, primary sources such as statutes and court opinions. Additionally, of the 20 syllabi, 15 reported adopting "required" texts: ten courses reported using William Rubenstein's Lesbians, Gay Men and the Law,30 two courses reported using Arthur Leonard's Sexuality and the Law,31 two courses reported using a combination of Ruthann Robson's Lesbian (Out) Law, the Harvard Law Review's book on Sexual Orientation & the Law, and John D'Emilio's Sexual Politics, Sexual Communities,32 and one course reported using Estelle Freedman's and John D'Emilio's Intimate Matters.33 However, in each of these courses the required text books are supplemented with additional, cross-disciplinary materials. A few courses also include multi-media materials such as audio tapes and video tapes. Doctrinally, the syllabi indicate that these "primary" courses generally concentrate on a combination of constitutional law and family law. Under constitutional law, the courses focus on the Fourteenth Amendment (equal protection, discrimination, privacy) and on the First Amendment (expression and association). Under family law, the courses focus on "marriage" and the formation of recognized family units, including adoption, as well as dissolution issues, including child custody. Some coverage of criminal law also takes place in the treatment of sodomy laws. However, these courses sometimes also venture beyond doctrine to consider more theoretical matters, like the sameness/difference dilemma, post-modernism, and the relationship between Bi/Lesbian/Gay studies on the one hand and Feminism or Critical Race theory on the other. Thus, even on a substantive level, these "primary" courses reflect a greater faculty willingness -- or might it be need or liberty? -- to experiment with and expand on the traditional ways and means of selecting, organizing, and presenting the sources, contents, and boundaries of a law school course. As this summary indicates, the individuated efforts of various faculty across the country to conceptualize and assemble their sexuality/sexual orientation courses seem to be converging in ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 164--------------------------------- some key respects to yield some remarkable commonalities regarding approach, materials, and organization. Over the longer run, these commonalities perhaps may be seen as setting an example for progressive or innovative tendencies more generally in the legal Academy. In the meantime, perhaps new channels and opportunities for cross-communication can aid individual teachers to learn more and faster from each other about this still fresh, uncharted, and unfolding area of law teaching. To help motivate and facilitate increased discourse on the ongoing efforts of today's law teachers to educate American law students on the regulation of human sexualities and orientations, this article next turns to new and upcoming opportunities for cross- communication. As part of this project, the author recently established an Internet discussion list called "teachsex," which is devoted specifically to facilitating discussions regarding the teaching of courses on sexuality and/or sexual orientation in a law school setting. All of the faculty members listed in the Syllabi Table above provided their mailing addresses, telephone numbers, and, where available, their Internet/e-mail addresses to establish a base of subscribers/discussants for this list, and thereby to help establish lines and networks of communication between and among legal educators on pedagogical and other issues relating to these courses. Accordingly, all of the faculty listed in the Syllabi Table already have been notified by Internet e-mail that the list has been established, and they have been invited to self-subscribe to the list. The same courteousy message has been sent to every teacher (with an Internet address) of a "primary" course identified in Table 2 below. Anyone may subscribe by sending the following message to majordomo@cwsl.edu: subscribe teachsex end Subscribers will receive a message confirming the subscription to the "teachsex" list.34 Additionally, the author is helping to coordinate a program on "Teaching Sexual Orientation & the Law: Ways and Means" to be held in conjunction with the 1996 AALS Annual Meeting in San Antonio. This program, which is intended as a more formal follow-up to the 1995 luncheon meeting,35 is being sponsored by the Society of American Law Teachers (SALT). Though the details of this event have not been finalized, the event tentatively has been scheduled for the afternoon of "Day Minus One" to avoid conflicts with AALS events.36 As presently being planned, this program will focus on practical ways and means of teaching the subject in a law school setting. Those interested in attending this program therefore should plan travel arrangements early and accordingly. And those interested in participating should contact the author as soon as possible. III. TABLES OF RESULTS The raw data gathered in this project is presented in full in this section in the form of the four following tables. Table 1, titled "OVERALL RESULTS," presents the responses of every ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 165--------------------------------- school regarding the (non)inclusion of this type of course in their curriculum. The second and third tables break down these overall results further. Table 2, titled "PRIMARY COURSES," presents the courses (and teaching faculty) that are "primarily" devoted to sexuality and/or sexual orientation. Table 3, titled "RELATED COURSES," includes the courses (and teaching faculty) that devote some significant or substantial time and coverage to issues of sexuality and/or sexual orientation but that are not "primarily" focused on these issues. Table 4, titled "COMPARATIVE RESULTS," tracks the progress made since the last surveys, which Gene Schultz completed five years ago in 1990, by comparing those results with today's results. Beginning on the next page, the data, as reported by the respective sources of information involved in the completion of this project,37 speak for themselves. A forward-looking conclusion then follows the tables to close the article. Copyright 1995 by Francisco X. Valdes University of Akron C. Blake McDowell Law Center Akron, OH Title of Course: none The University of Alabama * School of Law Tuscaloosa, AL Title of Course: none Albany Law School Union University Albany, NY Title of Course: none American University Washington College of Law Washington, DC Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R): P Faculty Name and Status:Michele Zavos (Adjunct) Title of Course:AIDS & the Law Scheduling Cycle:New course; frequency to be determined Credits Granted: 2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Michele Zavos (Adjunct) University of Arizona College of Law Tucson, AZ Title of Course: none Arizona State University College of Law Tempe, AZ Title of Course:Gender & Sexuality ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 166--------------------------------- Scheduling Cycle:Every other year Credits Granted: 2 or 3 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Ann Stanton University of Arkansas-Fayetteville Leflar Law Center Fayetteville, AR Title of Course: none University of Arkansas-Little Rock School of Law Little Rock, AR Title of Course: none University of Baltimore School of Law Baltimore, MD Title of Course: none Baylor University School of Law Waco, TX Title of Course: none Boston College Law School Newton, MA Title of Course: none Boston University * School of Law Boston, MA Title of Course:Bioethics Scheduling Cycle:Once every year Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Judge Steven Thayer (Adjunct) Brigham Young University J. Reuben Clark Law School Provo, UT Title of Course: none Brooklyn Law School * Brooklyn, NY Title of Course:Sexuality & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R): P Faculty Name and Status:Ruth Harlow (Adjunct) University of California-Berkeley School of Law Berkeley, CA Title of Course:Sexual Orientation & the Law ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 167--------------------------------- Scheduling Cycle:Once every year Credits Granted: 2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Matthew Coles (Adjunct) University of California-Davis School of Law Davis, CA Title of Course: none University of California-Hastings College of the Law San Francisco, CA Title of Course:Selected Problems in Civil Rights Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Matthew Coles (Adjunct) University of California-Los Angeles * School of Law Los Angeles, CA Title of Course:Sexual Orientation & the Law Scheduling Cycle:New course; frequency to be determined Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Jon W. Davidson (Adjunct) with Christine Littleton Title of Course:Women & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Sheila Kuehl (Adjunct) California Western School of Law San Diego, CA Title of Course:Law, Policy & Sexuality Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Francisco X. Valdes Title of Course:Sexual Orientation & the Law Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Barbara J. Cox Campbell University Norman Adrian Wiggins School of Law Buies Creek, NC Title of Course: none Capital University * ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 168--------------------------------- Law School Columbus, OH Title of Course:Feminist Theory Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Susan Looper-Friedman Title of Course:Sex-Based Discrimination Scheduling Cycle:Once every year Credits Granted:2 or 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Shirley Mays Title of Course:Sex & the Law Scheduling Cycle:New course; frequency to be determined Credits Granted: 2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Mark Strasser Cardozo University * School of Law New York, NY Title of Course: none Case Western Reserve University Law School Cleveland, OH Title of Course: none Catholic University of America School of Law Washington, DC Title of Course: none Catholic University of Puerto Rico School of Law Ponce, PR Title of Course: none Chicago-Kent College of Law Illinois Institute of Technology Chicago, IL Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Vincent Samar (Adjunct) University of Chicago * Law School Chicago, IL Title of Course:Critical Race & Lesbian\Gay Legal Theory Scheduling Cycle:New course; frequency to be determined Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Mary Becker with ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 169--------------------------------- Nancy Einsenhaeur (Bigelow Writing Instructor) University of Cincinnati * College of Law Cincinnati, OH Title of Course:AIDS & the Law Scheduling Cycle:New course; frequency to be determined Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Jack Harrison (Adjunct) Title of Course:Sex-Based Discrimination Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Barbara Watts Cleveland State University Cleveland-Marshall College of Law Cleveland, OH Title of Course: none University of Colorado School of Law Boulder, CO Title of Course: none Columbia University School of Law New York, NY Title of Course:Topics in Law & Sexuality Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Kendall Thomas University of Connecticut School of Law Hartford, CT Title of Course:Employment Discrimination Scheduling Cycle:Once every year Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Deborah Calloway Cornell Law School Ithaca, NY Title of Course: none Creighton University School of Law Omaha, NE Title of Course: none ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 170--------------------------------- Cumberland School of Law of Samford University Birmingham, AL Title of Course: none (CUNY) City University of New York * School of Law Queens College Flushing, NY Title of Course:Sexuality & the Law Scheduling Cycle:Varies Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Ruthann Robson Title of Course:Family Law Scheduling Cycle:Once every year Credits Granted: 2 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Ruthann Robson Title of Course:AIDS Litigation Scheduling Cycle:Once every year Credits Granted:4 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Paula Berg Title of Course:Liberty, Equality & Due Process Scheduling Cycle:Once every year Credits Granted: 2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Dinesh Khosla Title of Course:Street Law Scheduling Cycle:Varies Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:David Nadvorney University of Dayton School of Law Dayton, OH Title of Course: none University of Denver College of Law Denver, CO Title of Course:Gender & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Sheila Hyatt Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Julia Nice De Paul University ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 171--------------------------------- College of Law Chicago, IL Title of Course:Women & the Law Scheduling Cycle:Once every year Credits Granted: 3 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Diane Rosenberg (Adjunct) Title of Course:Feminist Jurisprudence Scheduling Cycle:Once every year Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:N. Morrison Torrey University of Detroit Mercy School of Law Detroit, MI Title of Course: none Detroit College of Law Detroit, MI Title of Course: none Dickinson School of Law Carlisle, PA Title of Course: none District of Columbia School of Law Washington, DC Title of Course: none Drake University School of Law Des Moines, IA Title of Course: none Duke University * School of Law Durham, NC Title of Course:Law & Identity Scheduling Cycle:New course; frequency to be determined Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Katharine Bartlett Title of Course:Gender & Law Scheduling Cycle:Once every year Credits Granted:2 or 3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Katharine Bartlett Duquesne University School of Law Pittsburgh, PA Title of Course: none Emory University ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 172--------------------------------- School of Law Atlanta, GA Title of Course: none University of Florida College of Law Gainesville, FL Title of Course: none Florida State University * College of Law Tallahassee, FL Title of Course:Women & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Margaret Baldwin Title of Course:Prostitution & Pornography Scheduling Cycle:Once every year Credits Granted: 2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Margaret Baldwin Title of Course:Reproductive Technologies & Rights Scheduling Cycle:Varies Credits Granted: 3 "Primary" (P) v. "Related" (R): R Faculty Name and Status:April Cherry Title of Course:AIDS & the Law Scheduling Cycle:Once every year Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Jean Sternlight Title of Course:Family Law Scheduling Cycle:Twice every year Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Jean Sternlight Fordham University School of Law New York, NY Title of Course: none Franklin Pierce Law Center Concord, NH Title of Course: none George Mason University * School of Law Arlington, VA Title of Course: none Georgetown University Law Center Washington, DC ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 173--------------------------------- Title of Course:Sexual Orientation & the Law: Selected Topics in Civil Rights Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Chai Feldblum or Marcia Kuntz (Adjunct) with Robert Raben (Adjunct) George Washington University National Law Center Washington, DC Title of Course:Sexuality & the Law Scheduling Cycle:Once every year Credits Granted: 2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Stephanie Ridder University of Georgia School of Law Athens, GA Title of Course: none Golden Gate University * School of Law San Francisco, CA Title of Course:Sexual Orientation & the Law Scheduling Cycle:Every other year Credits Granted: 3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Joan Howarth with Michael Zamperini or Mary Dunlap (Adjunct) Gonzaga University School of Law Spokane, WA Title of Course: none Hamline University * School of Law St. Paul, MN Title of Course:Employment Discrimination Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:A. Ray McCoy Harvard University Law School Cambridge, MA Title of Course:Law, Sex & Identity (The title may vary according to instructor) Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R): P Faculty Name and Status:Dan Danielsen (Adjunct) University of Hawaii School of Law ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 174--------------------------------- Honolulu, HI Title of Course: none Hofstra University School of Law Long Island, NY Title of Course: none University of Houston Law Center Houston, TX Title of Course:Sexual Orientation & the Law Scheduling Cycle:every other year Credits Granted:3 "Primary" (P) v. "Related" (R): P Faculty Name and Status:Mary Anne Bobinski with Christopher Bacon (Adjunct) Title of Course:HIV & the Law Scheduling Cycle:once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Mary Anne Bobinski Howard University School of Law Washington, DC Title of Course: none University of Idaho College of Law Moscow, ID Title of Course: none University of Illinois College of Law Champaign, IL Title of Course: none Indiana University-Bloomington School of Law Bloomington, IN Title of Course:AIDS & the Law Scheduling Cycle:Once every year Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Susan Williams Title of Course:Women & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Lynne Henderson Indiana University-Indianapolis School of Law Indianapolis, IN Title of Course: none ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 175--------------------------------- Inter American University Santurce, PR Title of Course: none University of Iowa * College of Law Iowa City, IA Title of Course:Anti-Discrimination Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Jean Love University of Kansas School of Law Lawrence, KS Title of Course: none University of Kentucky College of Law Lexington, KY Title of Course: none Lewis & Clark Northwestern School of Law Portland, OR Title of Course: none Louisiana State University * Law Center Baton Rouge, LA Title of Course: none University of Louisville School of Law Louisville, KY Title of Course: none Loyola University-Chicago School of Law Chicago, IL Title of Course: none Loyola University-New Orleans School of Law New Orleans, LA Title of Course: none Loyola Law School * Los Angeles, CA Title of Course:Gender & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Sheila Kuehl (Adjunct) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 176--------------------------------- Title of Course:Sexual Orientation & the Law Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Jon W. Davidson (Adjunct) University of Maine School of Law Portland, ME Title of Course:Women & the Law Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Ellen Kandonian McGeorge School of Law University of the Pacific Sacramento, CA Title of Course: none Marquette University Law School Milwaukee, WI Title of Course:Feminist Legal Theory Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Patricia Bradford John Marshall Law School Chicago, IL Title of Course:Law Diversity Scheduling Cycle:New course; frequency to be determined Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Susan Brody with Yvette Barksdale University of Maryland School of Law Baltimore, MD Title of Course: none Memphis State University School of Law Memphis, TN Title of Course: none Mercer University Law School Macon, GA Title of Course: none University of Miami School of Law Coral Gables, FL Title of Course:Sexual Relationships & the Law ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 177--------------------------------- Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Larry Gordon (Adjunct) University of Michigan * Law School Ann Arbor, MI Title of Course:Sex Equality Scheduling Cycle:Every other year Credits Granted:2 or 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Catharine MacKinnon Title of Course:Sexuality & the Law Scheduling Cycle:Varies Credits Granted: 3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Paula Ettelbrick (Adjunct) University of Minnesota Law School Minneapolis, MN Title of Course: none Mississippi College School of Law Jackson, MS Title of Course: none University of Mississippi School of Law University, MS Title of Course: none University of Missouri-Columbia School of Law Columbia, MO Title of Course: none University of Missouri-Kansas City School of Law Kansas City, MO Title of Course: none William Mitchell College of Law St. Paul, MN Title of Course:Law & Sexuality Scheduling Cycle:Once every year Credits Granted: 2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Anthony S. Winer University of Montana School of Law Missoula, MT Title of Course:Gender Bias ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 178--------------------------------- Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Bari Burke University of Nebraska College of Law Lincoln, NE Title of Course: none New College of California School of Law San Francisco, CA Title of Course:Sexual Orientation & the Law Scheduling Cycle:New course; frequency to be determined Credits Granted: 3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Akilah Monifa New England School of Law * Boston, MA Title of Course:Women & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Judy Greenberg Title of Course:Reproductive Freedom Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Elizabeth Spahn University of New Mexico School of Law Albuquerque, NM Title of Course: none New York Law School * New York, NY Title of Course:Sexuality & the Law Scheduling Cycle:Twice every year Credits Granted: 2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Arthur Leonard or Paula Ettelbrick (Adjunct) New York University * School of Law New York, NY Title of Course:Sexual Orientation & the Law Scheduling Cycle:Every other year Credits Granted:2 or 3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Thomas B. Stoddard (Adjunct) Title of Course:Women & the Law Scheduling Cycle:Every other year Credits Granted:3 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 179--------------------------------- "Primary" (P) v. "Related" (R):R Faculty Name and Status:Sally Goldfarb (Adjunct) with Debra Ellis (Adjunct) North Carolina Central University School of Law Durham, NC Title of Course: none University of North Carolina School of Law Chapel Hill, NC Title of Course: none University of North Dakota School of Law Grand Forks, ND Title of Course: none Northeastern University School of Law Boston, MA Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Robert Greenwald (Adjunct) or Jane Scarborough Northern Illinois University College of Law DeKalb, IL Title of Course: none Northern Kentucky University College of Law Highland Heights, KY Title of Course: none Northwestern University School of Law Chicago, IL Title of Course: none Notre Dame Law School Notre Dame, IN Title of Course: none Nova Southeastern University Shepard Broad Law Center Fort Lauderdale, FL Title of Course: none Ohio Northern University Pettit College of Law Ada, OH Title of Course: none ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 180--------------------------------- Ohio State University College of Law Columbus, OH Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Rhonda Rivera Oklahoma City University Law School Oklahoma City, OK Title of Course: none University of Oklahoma Law Center Norman, OK Title of Course: none University of Oregon * School of Law Eugene, OR Title of Course:Seminar in Civil Rights (generic title known as gay, lesbian legal issues) Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R): P Faculty Name and Status:Dominick Vetri Pace University School of Law White Plains, NY Title of Course: none University of Pennsylvania * Law School Philadelphia, PA Title of Course:Feminist Legal History Scheduling Cycle:New course; frequency to be determined Credits Granted:1 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Sally Gordon Title of Course:Feminist Legal Theory Scheduling Cycle:New course; frequency to be determined Credits Granted:1 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Ann Dailey (Visiting Faculty) Pepperdine University * School of Law Malibu, CA Title of Course: none University of Pittsburgh School of Law ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 181--------------------------------- Pittsburgh, PA Title of Course:Sex, Sexuality & the Law Scheduling Cycle:Every other year Credits Granted: 2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Ruth Colker Title of Course:Feminist Jurisprudence Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Martha Chamallas Title of Course:Feminist Jurisprudence Scheduling Cycle:Every other year Credits Granted: 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Ruth Colker University of Puerto Rico School of Law Rio Piedras, PR Title of Course: none Quinnipiac College School of Law Bridgeport, CT Title of Course: none University of Richmond School of Law Richmond, VA Title of Course: none Rutgers, The State University of New Jersey * School of Law Camden, NJ Title of Course:Feminist Legal Theory Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Sherry Colb Title of Course:Reproduction, Sexuality & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Ann S. Freedman Rutgers, The State University of New Jersey S.I. Newhouse Center for Law and Justice Newark, NJ Title of Course:Human Sexuality & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Evan Wolfson (Adjunct) with James Hough (Adjunct) or Marc ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 182--------------------------------- Elovitz (Adjunct) Title of Course:Race, Gender & Torts Scheduling Cycle:Once every year Credits Granted: 2 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Twila Perry St. John's University School of Law Jamaica, NY Title of Course: none Saint Louis University School of Law St. Louis, MO Title of Course: none St. Mary's University of San Antonio School of Law San Antonio, TX Title of Course: none St. Thomas University School of Law Miami, FL Title of Course: none University of San Diego * School of Law San Diego, CA Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Barbara J. Cox (Visiting Faculty) University of San Francisco School of Law San Francisco, CA Title of Course: none Santa Clara University School of Law Santa Clara, CA Title of Course: none Seattle University School of Law Tacoma, WA Title of Course:Gender & Justice Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Marilyn Berger Title of Course:Law & Sexuality Scheduling Cycle:Once every year ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 183--------------------------------- Credits Granted:2 "Primary" (P) v. "Related" (R): P Faculty Name and Status:Julie Shapiro with Kellye Y. Testy Seton Hall University * School of Law Newark, NJ Title of Course:Gender & the Law Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Joan Neisser University of South Carolina * School of Law Columbia, SC Title of Course:Gender, Sexuality & Law Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Jane Harris Aiken University of South Dakota School of Law Vermillion, SD Title of Course: none University of Southern California * Law Center Los Angeles, CA Title of Course:Sexual Orientation & the Law Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Jon W. Davidson (Adjunct) Title of Course:AIDS & the Law Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Jon W. Davidson (Adjunct) Title of Course:Gender Discrimination Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Susan Estrich Title of Course:Feminist Jurisprudence Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Catharine Wells Title of Course:Women & Criminal Justice System Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Carrie Hempel Title of Course:Feminist Issues in Biomedical Legal Ethics ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 184--------------------------------- Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Deborah Hensler Southern Illinois University School of Law Carbondale, IL Title of Course: none Southern Methodist University School of Law Dallas, TX Title of Course:Law & Sexuality Scheduling Cycle:New course; frequency to be determined Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Jane Dolkart Title of Course:Employment Discrimination Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Jane Dolkart South Texas College of Law Houston, TX Title of Course:HIV Law Clinic Scheduling Cycle:Once each semester (twice every year) Credits Granted:3 or 4 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Catherine Greene Burnett (Adjunct) with Mitchell Katine (Adjunct) Southern University * Law Center Baton Rouge, LA Title of Course: none Southwestern University School of Law Los Angeles, CA Title of Course:Law & Sexual Orientation Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Craig W. Christensen Stanford Law School * Stanford, CA Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Matthew Coles (Adjunct) (SUNY) State University of New York-Buffalo ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 185--------------------------------- School of Law Buffalo, NY Title of Course: none Suffolk University Law School * Boston, MA Title of Course:Gender & Equality of Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Kate Day Syracuse University * College of Law Syracuse, NY Title of Course:Women & Criminal Justice System Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Paula Johnson Title of Course:Race & Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Debra Post (Visiting Faculty) Temple University School of Law Philadelphia, PA Title of Course: none University of Tennessee * College of Law Knoxville, TN Title of Course:Race & Gender Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Fran Ansley Title of Course:Women & the Law Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Fran Ansley University of Texas School of Law Austin, TX Title of Course:Gender, Law & History Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Elvia Arriola or Zipporah Batshaw Wiseman Texas Southern University * ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 186--------------------------------- School of Law Houston, TX Title of Course: none Texas Tech University School of Law Lubbock, TX Title of Course: none The J.A.G. School, U.S.A. Charlottesville, VA Title of Course: none Thomas M. Cooley Law School Lansing, MI Title of Course: none University of Toledo College of Law Toledo, OH Title of Course: none Touro College Law Center Huntington, NY Title of Course: none Tulane University School of Law New Orleans, LA Title of Course: none University of Tulsa * College of Law Tulsa, OK Title of Course: none University of Utah * College of Law Salt Lake City, UT Title of Course:Legal Theory: Sexual Orientation & the Law Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Terry S. Kogan Title of Course:Groups & the Law Scheduling Cycle:Every other year Credits Granted:2 or 3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Karen Engle with Dan Greenwood Title of Course:Critical Legal Theory Scheduling Cycle:Every other year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Karen Engle Title of Course:Feminist Legal Theory Scheduling Cycle:Every other year ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 187--------------------------------- Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Debora Threedy Valparaiso University School of Law Valparaiso, IN Title of Course: none Vanderbilt University School of Law Nashville, TN Title of Course: none Vermont Law School South Royalton, VT Title of Course: none Villanova University School of Law Villanova, PA Title of Course: none University of Virginia * School of Law Charlottesville, VA Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Mary Anne Case or Daniel Ortiz Title of Course:Feminist Jurisprudence Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Mary Anne Case Wake Forest University * School of Law Winston-Salem, NC Title of Course: none Washburn University School of Law Topeka, KS Title of Course:Comparative Gay & Lesbian Rights Scheduling Cycle:Every three years Credits Granted: 2 or 3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Nancy G. Maxwell Title of Course:Feminist Jurisprudence Scheduling Cycle:Every three years Credits Granted:2 or 3 "Primary" (P) v. "Related" (R): R Faculty Name and Status:Nancy G. Maxwell Washington and Lee University ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 188--------------------------------- School of Law Lexington, VA Title of Course: none University of Washington School of Law Seattle, WA Title of Course: none Washington University School of Law St. Louis, MO Title of Course: none Wayne State University Law School Detroit, MI Title of Course: none West Virginia University College of Law Morgantown, WV Title of Course: none Western New England College * School of Law Springfield, MA Title of Course: none Whittier Law School Los Angeles, CA Title of Course:Contemporary Social Problems: AIDS & the Law Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R):R Faculty Name and Status:John Heilman (Visiting Faculty) Widener University School of Law Wilmington, DE Title of Course: none Willamette University College of Law Salem, OR Title of Course: none College of William and Mary * Marshall-Wythe School of Law Williamsburg, VA Title of Course:Women & the Law Scheduling Cycle:New course; frequency to be determined Credits Granted:3 "Primary" (P) v. "Related" (R):R Faculty Name and Status:Susan Grover ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 189--------------------------------- University of Wisconsin Law School Madison, WI Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:2 or 3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Jane Schacter University of Wyoming College of Law Laramie, WY Title of Course: none Yale Law School New Haven, CT Title of Course:Law & Sexuality Scheduling Cycle:Every other year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:Harlon Dalton Title of Course:Sexual Orientation & the Law Scheduling Cycle:Once every year Credits Granted:3 "Primary" (P) v. "Related" (R):P Faculty Name and Status:William R. Rubenstein (Adjunct) Title of Course:Sexual Orientation Theory Scheduling Cycle:Once every year Credits Granted:2 "Primary" (P) v. "Related" (R): P Faculty Name and Status:William R. Rubenstein (Adjunct) Copyright 1995 by Francisco X. Valdes Table 2: Faculty Teaching "Primary Courses": How to Contact and Course Information (Telephone numbers for the adjuncts refer to the school's number unless marked with an asterisk; course enrollment figures, where available, are for the last offering of the course.) Jane Harris Aiken University of South Carolina School of Law Main & Green Streets Columbia, SC 29208 (803) 777-8295 jhaiken@univscvm.csd.scarolina.edu Gender, Sexuality & the Law (2 credits, every other year) [Enrollment: 49] Elvia Arriola [or Zipporah Batshaw Wiseman] University of Texas School of Law 727 East 26th Street Austin, TX 78705 (512) 471-5137 earriola@msmail.law.utexas.edu Gender, Law & History ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 190--------------------------------- (2 credits, once every year) [Enrollment: unavailable] Christopher Bacon (Adjunct) [with Mary Anne Bobinski] University of Houston Law Center 4800 Calhoun Houston, TX 77204 (713) 743-2108 Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 10] Katharine Bartlett Duke University School of Law Corner of Science Drive & Towerview Road, Box 90362 Durham, NC 27708-0362 (919) 613-7094 bartlett@faculty.law.duke.edu Gender & Law (2 or 3 credits, once every year) [Enrollment: 16] Mary Becker [with Nancy Einsenhaeur Bigelow Writing Instructor] University of Chicago Law School 1111 East 60th Street Chicago, IL 60637 (312) 702-9596 mary_becker@law.uchicago.edu Critical Race & Lesbian\Gay Legal Theory (3 credits, new course; frequency to be determined) [Enrollment: 7] Mary Anne Bobinski [with Christopher Bacon (Adjunct)] University of Houston Law Center 4800 Calhoun Houston, TX 77204 (713) 743-2108 mabob@uh.edu Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 10] Mary Anne Case ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 191--------------------------------- [or Daniel Ortiz] University of Virginia School of Law Charlottesville, VA 22903 (804) 924-3022 mcc5k@virginia.edu Regulating Family, Sex & Gender (3 credits, once every year) [Enrollment: 38] Craig W. Christensen Southwestern University School of Law 675 South Westmoreland Avenue Los Angeles, CA 90005 (213) 738-6792 Law & Sexual Orientation (2 credits, once every year) [Enrollment: 21] Matthew Coles (Adjunct) University of California-Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 565-4600 Selected Problems in Civil Rights (2 credits, once every year) [Enrollment: 7] Matthew Coles (Adjunct) University of California-Berkeley School of Law Boalt Hall Berkeley, CA 94720 (510) 642-1741 Sexual Orientation & the Law (2 credits, once every year) [Enrollment: 16] Matthew Coles (Adjuct) Stanford Law School Nathan Abbott Way at Alvarado Row Stanford, CA 94305 (415) 723-2465 Sexual Orientation & the Law (2 credits, once every year) [Enrollment: 21] Ruth Colker University of Pittsburgh ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 192--------------------------------- School of Law 3900 Forbes Avenue Pittsburgh, PA 15260 (412) 648-1490 ruc+@pitt.edu Sex, Sexuality & the Law (2 credits, every other year) [Enrollment: 15] Barbara J. Cox California Western School of Law 225 Cedar Street San Diego, CA 92101 (619) 525-1496 bcox@cwsl.edu Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 7] Barbara J. Cox (Visiting Faculty) University of San Diego School of Law 5998 Alcala Park San Diego, CA 92110 (619) 525-1496 * bcox@cwsl.edu Sexual Orientation & the Law (2 credits, once every year) [Enrollment: 6] Harlon Dalton Yale Law School 127 Wall Street P.O. Box 208215 Yale Station New Haven, CT 06520 (203) 432-4933 dalton@mail.law.yale.edu Law & Sexuality (3 credits, every other year) [Enrollment: 16] Dan Danielsen (Adjunct) Harvard University Law School Cambridge, MA 02138 (617) 832-1192 * Law, Sex & Identity (3 credits, once every year) [Enrollment: 9] Jon W. Davidson (Adjunct) Loyola Law School ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 193--------------------------------- 1441 W. Olympic Boulevard P.O. Box 15019 Los Angeles, CA 90015 (213) 977-9500 Ext. 225 * Sexual Orientation & the Law (2 credits, every other year) [Enrollment: 18] Jon W. Davidson (Adjunct) [with Christine Littleton] University of California-Los Angeles School of Law 405 Hilgard Avenue Los Angeles, CA 90024 (213) 977-9500 Ext. 225 * Sexual Orientation & the Law (3 credits, new course; frequency to be determined) [Enrollment: 16] Jon W. Davidson (Adjunct) University of Southern California Law Center 699 Exposition Boulevard University Park Los Angeles, CA 90089 (213) 977-9500 Ext. 225 * Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 10] Jane Dolkart Southern Methodist University School of Law Storey Hall 3315 Daniel Avenue Dallas, TX 75275-0116 (214) 768-4396 jdolkart@sun.cis.smu.edu Law & Sexuality (3 credits, new course; frequency to be determined) [Enrollment: unavailable] Mary Dunlap (Adjunct) [or Joan Howarth with Michael Zamperini] Golden Gate University School of Law 536 Mission Street ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 194--------------------------------- San Francisco, CA 94105 (415) 442-6600 Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 14] Nancy Einsenhaeur (Bigelow Writing Instructor) [with Mary Becker] University of Chicago Law School 1111 East 60th Street Chicago, IL 60637 (312) 702-9494 Critical Race & Lesbian\Gay Legal Theory (3 credits, new course; frequency to be determined) [Enrollment: 7] Marc Elovitz (Adjunct) [or Evan Wolfson (Adjunct) with James Hough (Adjunct)] Rutgers, The State University of New Jersey S.I. Newhouse Center for Law & Justice 15 Washington Street Newark, New Jersey 07102 (201) 648-5561 Human Sexuality & the Law (2 credits, once every year) [Enrollment: 5] Paula Ettelbrick (Adjunct) University of Michigan Law School 625 South State Street Ann Arbor, MI 48109 (212) 979-5959 * Please contact Ms. Ettelbrick at home. The address is: 24 Fifth Avenue, #705 New York, NY 10011 Sexuality & the Law (3 credits, varies) [Enrollment: 40] Paula Ettelbrick (Adjunct) [or Arthur Leonard] New York Law School 57 Worth Street New York, NY 10013-2960 (212) 979-5959 * ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 195--------------------------------- Please contact Ms. Ettelbrick at home. The address is: 24 Fifth Avenue, #705 New York, NY 10011 Sexuality & the Law (2 credits, twice every year) [Enrollment: 29] Chai Feldblum [or Marcia Kuntz (Adjunct) with Robert Raben (Adjunct)] Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, DC 20001 (202) 662-9477 feldblum@law.georgetown.edu Sexual Orientation & the Law: Selected Topics in Civil Rights (3 credits, once every year) [Enrollment: 35] Ann S. Freedman Rutgers, The State University of New Jersey 5th and Penn Streets Camden, NJ 08102 (609) 757-6375 aefreedm@camden.rutgers.edu Reproduction, Sexuality & the Law (3 credits, once every year) [Enrollment: 3] Larry Gordon (Adjunct) University of Miami School of Law 1311 Miller Drive P.O. Box 248087 Coral Gables, FL 33124 (305) 284-2392 Sexual Relationships & theLaw (2 credits, once every year) [Enrollment: 25] Robert Greenwald (Adjunct) [or Jane Scarborough] Northeastern University School of Law 400 Huntington Avenue Boston, MA 02115 (617) 373-3307 Sexual Orientation & the Law (3 credits, once every year) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 196--------------------------------- [Enrollment: unavailable] Ruth Harlow (Adjunct) Brooklyn Law School 250 Joralemon Street Brooklyn, NY 11201 (718) 625-2200 (212) 944-9800 Ext. 545 * Sexuality & the Law (2 credits, once every year) [Enrollment: 60] James Hough (Adjunct) [with Evan Wolfson (Adjunct) or Marc Elovitz (Adjunct)] Rutgers, The State University of New Jersey S.I. Newhouse Center for Law & Justice 15 Washington Street Newark, NJ 07102 (201) 648-5561 Human Sexuality & the Law (2 credits, once every year) [Enrollment: 5] Joan Howarth [with Michael Zamperini or Mary Dunlap (Adjunct)] Golden Gate University School of Law 536 Mission Street San Francisco, CA 94105 (415) 442-6645 Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 12] Terry S. Kogan University of Utah College of Law Salt Lake City, UT 84112 (801) 581-7890 terry.kogan@m.cc.utah.edu Legal Theory: Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 6] Marcia Kuntz (Adjunct) [with Robert Raben (Adjunct) or Chai Feldblum] Georgetown University Law Center ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 197--------------------------------- 600 New Jersey Avenue, N.W. Washington, DC 20001 (202) 662-9000 Sexual Orientation & the Law: Selected Topics in Civil Rights (3 credits, once every year) [Enrollment: 25] Arthur Leonard [or Paula Ettelbrick (Adjunct)] New York Law School 57 Worth Street New York, NY 10013 (212) 431-2156 asleonard@aol.com (preferred) tyws43a@prodigy.com Sexuality & the Law (2 credits, twice every year) [Enrollment: 20] Christine Littleton [with Jon W. Davidson (Adjunct)] University of California-Los Angeles School of Law 405 Hilgard Avenue Los Angeles, CA 90024 (310) 206-1245 littletn@law.ucla.edu Sexual Orientation & the Law (3 credits, new course; frequency to be determined) [Enrollment: 16] Nancy G. Maxwell Washburn University School of Law 1700 College Topeka, KS 66621 (913) 231-1060 ext. 1837 zzmaxw@acc.wuacc.edu Comparative Gay & Lesbian Rights (2 or 3 credits, every three years) [Enrollment: 22] Akilah Monifa New College of California School of Law 50 Fell Street San Francisco, CA 94102 (415) 241-1319 amonifa@ncgate.newcollege.edu Sexual Orientation & the Law (3 credits, new course; frequency to be determined) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 198--------------------------------- [Enrollment: 8] Julie Nice University of Denver College of Law 7039 East 18th Avenue Denver, CO 80220 (303) 871-6312 jnice@adm.law.du.edu Sexual Orientation & the Law (3 credits, once every year) [Enrollment: 23] Daniel Ortiz [or Mary Anne Case] University of Virginia School of Law Charlottesville, VA 22903 (804) 924-3127 dro@virginia.edu Regulating Family, Sex & Gender (3 credits, once every year) [Enrollment: 38] Robert Raben (Adjunct) [with Marcia Kuntz (Adjunct) or Chai Feldblum] Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, DC 20001 (202) 662-9000 Sexual Orientation & the Law: Selected Topics in Civil Rights (3 credits, once every year) [Enrollment: 25] Stephanie Ridder George Washington University National Law Center 2000 H Street Washington, DC 20052 (202) 994-6260 sridder@main.nlc.gwu.edu Sexuality & the Law (2 credits, once every year) [Enrollment: 20] Rhonda Rivera Ohio State University College of Law 55 West 12th Avenue Columbus, OH 43210 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 199--------------------------------- (614) 292-2422 rivera.l@osu.edu Sexual Orientation & the Law (2 credits, once every year) [Enrollment: 26] Ruthann Robson (CUNY) City University of New York School of Law Queens College 65-21 Main Street Flushing, NY 11367 (718) 575-4447 rr@maclaw.law.cuny.edu Sexuality & the Law (3 credits, varies) [Enrollment: unavailable] William B. Rubenstein (Adjunct) Yale Law School 127 Wall Street P.O. Box 208215 New Haven, CT 06520 (212) 944-9800 Ext. 545 * braclu@aol.com Sexual Orientation & the Law (3 credits, once every year) [Enrollment: 12] Sexual Orientation Theory (2 credits, once every year) [Enrollment: 9] Vincent Samar (Adjunct) Chicago-Kent College of Law Illinois Institute of Technology 565 West Adams Street Chicago, IL 60661-3691 (312) 906-5000 Sexual Orientation & the Law (2 credits, once every year) [Enrollment: 6] Jane L. Scarborough [or Robert Greenwald (Adjunct)] Northeastern University School of Law 400 Huntington Avenue Boston, MA 02115 (617) 373-5775 scarboro@neu.edu Sexual Orientation & the Law (3 credits, once every year) [Enrollment: 12] ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 200--------------------------------- Jane Schacter University of Wisconsin Law School 975 Bascom Mall Madison, WI 53706 (608) 263-7408 schacter@facstaff.wisc.edu Sexual Orientation & the Law (2 or 3 credits, once every year) [Enrollment: 10] Julie Shapiro [with Kellye Y. Testy] 3eattle University School of Law 950 Broadway Plaza Tacoma, WA 98402 (206) 591-2209 shapiro@ups.edu or shapiro@seattleu.edu Law & Sexuality (2 credits, once every year) [Enrollment: 40] Thomas B. Stoddard (Adjunct) New York University School of Law 40 Washington Square South New York, NY 10012 (212) 998-6100 Sexual Orientation & the Law (2 or 3 credits, every other year) [Enrollment: 25] Mark Strasser Capital University Law School 665 South High Street Columbus, OH 43215 (614) 445-8836 ext. 121 mstrasse@mcs.capital.edu Sex & the Law (2 credits, new course; frequency to be determined) [Enrollment: 16] Kellye Y. Testy [with Julie Shapiro] Seattle University School of Law 950 Broadway Plaza ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 201--------------------------------- Tacoma, WA 98402 (206) 591-2214 ktesty@ups.edu or ktesty@seattle.edu Law & Sexuality (2 credits, once every year) [Enrollment: 40] Kendall Thomas Columbia University School of Law 435 West 116 Street New York, NY 10027 (212) 854-2671 kthomas@lawmail.law.colombia.edu Topics in Law & Sexuality (2 credits, once every year) [Enrollment: 18] Francisco X. Valdes California Western School of Law 225 Cedar Street San Diego, CA 92101 (619) 525-7055 fvaldes@cwsl.edu Law, Policy & Sexuality (3 credits, once every year) [Enrollment: 12] Dominick Vetri University of Oregon School of Law 1101 Kincaid Street Eugene, OR 97403 (503) 346-3868 dvetri@law.uoregon.edu Seminar in Civil Rights (generic title known as gay, lesbian legal issues) (3 credits, every other year) [Enrollment: 8] Zipporah Batshaw Wiseman [or Elvia Arriola] University of Texas School of Law 727 East 26th Street Austin, TX 78705 (512) 471-1551 zwiseman@msmail.law.utexas.edu Gender, Law & History (2 credits, once every year) [Enrollment: 51] Anthony S. Winer ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 202--------------------------------- William Mitchell College of Law 875 Summit Avenue St. Paul, MN 55105 (612) 290-6365 awiner@wmitchell.edu Law & Sexuality (2 credits, once every year) [Enrollment: 12] Evan Wolfson (Adjunct) [with James Hough (Adjunct) or Marc Elovitz (Adjunct)] Rutgers, The State University of New Jersey S.I. Newhouse Center for Law & Justice 15 Washington Street Newark, NJ 07102 (201) 648-5561 Human Sexuality & the Law (2 credits, once every year) [Enrollment: 5] Michael Zamperini [with Joan Howarth or Mary Dunlap (Adjunct)] Golden Gate University School of Law 536 Mission Street San Francisco, CA 94105 (415) 442-6658 Sexual Orientation & the Law (3 credits, every other year) [Enrollment: 12] Michele A. Zavos (Adjunct) American University Washington College of Law 4400 Massachusetts Avenue Washington, DC 20016 (202) 885-2600 Sexual Orientation & the Law (3 credits, once every year) [Enrollment: 8] Copyright 1995 by Francisco X. Valdes Table 3: Faculty Teaching "Related Courses": How to Contact and Course Information (Telephone numbers for the adjuncts refer to the school's number unless marked with an asterisk.) Fran Ansley University of Tennessee College of Law 1505 West Cumberland Avenue Knoxville, TN 37996 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 203--------------------------------- (615) 974-6814 ansley@utkvx.utk.edu Race & Gender (2 credits, every other year) Women & the Law (3 credits, every other year) Margaret Baldwin Florida State University College of Law 425 W. Jefferson Street Tallahasse, FL 32306-1034 (904) 644-3449 mbaldwin@law.fsu.edu Women & the Law (2 credits, once every year) Prostitution & Pornography (2 credits, once every year) Yvette Barksdale [with Susan Brody] John Marshall Law School 315 South Plymouth Court Chicago, IL 60604 (312) 987-2388 Law Diversity (3 credits, new course; frequency to be determined) Katharine Bartlett Duke University School of Law Towerview Road Box 90362 Durham, NC 27708-0362 (919) 613-7094 bartlett@faculty.law.duke.edu Law & Identity (3 credits, new course; frequency to be determined) Paula Berg (CUNY) City University of New York School of Law Queens College 65-21 Main Street Flushing, NY 11367 (718) 575-4426 peb@maclaw.law.cuny.edu AIDS Litigation Seminar (4 credits, once every year) Marilyn Berger Seattle University School of Law 950 Broadway Plaza ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 204--------------------------------- Tacoma, WA 98402 (206) 591-2248 Gender & Justice (2 credits, once every year) Mary Anne Bobinski University of Houston Law Center 4800 Calhoun Houston, TX 77204 (713) 743-2108 mabob@uh.edu HIV & the Law (3 credits, once every year) Patricia Bradford Marquette University Law School 1103 West Wisconsin Avenue Milwaukee, WI 53233 (414) 288-5375 Feminist Legal Theory (3 credits, once every year) Susan Brody [with Yvette Barksdale] John Marshall Law School 315 South Plymouth Court Chicago, IL 60604 (312) 987-1400 7brody@jmls.edu Law Diversity (3 credits, new course; frequency to be determined) Bari Burke University of Montana School of Law Missoula, MT 59812 (406) 243-4311 lw-brb@lewis.umt.edu Gender Bias (2 credits, every other year) Catherine Greene Burnett (Adjunct) [with Mitchell Katine (Adjunct)] South Texas College of Law 1303 San Jacinto Houston, TX 77002-7000 (713) 646-1831 HIV Law Clinic (3 or 4 credits, once each semester [twice every year]) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 205--------------------------------- Deborah Calloway University of Connecticut School of Law 65 Elizabeth Street Hartford, CT 06105 (203) 241-4658 dcallowa@story.law.uconn.edu Employment Discrimination (3 credits, once every year) Mary Anne Case University of Virginia School of Law Charlottesville, VA 22903 (804) 924-3022 mcc5k@virginia.edu Feminist Jurisprudence (3 credits, once every year) Martha Chamallas University of Pittsburgh School of Law 3900 Forbes Avenue Pittsburgh, PA 15260 (412) 648-1400 Feminist Jurisprudence (3 credits, every other year) April Cherry Florida State University College of Law 425 W. Jefferson Street Tallahasse, FL 32306-1034 (904) 644-5420 acherry@law.fsu.edu Reproductive Technologies & Rights (3 credits, varies) Sherry Colb Rutgers, The State University of New Jersey 5th and Penn Streets Camden, NY 08102 (609) 225-6384 colb@camden.rutgers.edu Feminist Legal Theory (2 credits, once every year) Ruth Colker University of Pittsburgh 3900 Forbes Avenue Pittsburgh, PA 15260 (412) 648-1490 ruc+@pitt.edu ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 206--------------------------------- Feminist Jurisprudence (3 credits, every other year) Ann Dailey (Visiting Faculty) University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104 (215) 898-7483 Feminist Legal Theory (1 credit, new course; frequency to be determined) Jon Davidson (Adjunct) University of Southern California Law Center 699 Exposition Boulevard University Park Los Angeles, CA 90089 (213) 977-9500 Ext. 225 * AIDS & the Law (2 credits, every other year) Kate Day Suffolk University Law School 41 Temple Street Boston, MA 02114 (617) 573-8000 Gender & Equality of Law (3 credits, once every year) Jane Dolkart Southern Methodist University School of Law Storey Hall 3315 Daniel Avenue Dallas, TX 75275-0116 (214) 768-4396 jdolkart@sun.cis.smu.edu Employment Discrimination (3 credits, once every year) Debra Ellis (Adjunct) [with Sally Goldfarb (Adjunct)] New York University School of Law 40 Washington Square South New York, NY 10012 (212) 998-6100 Women & the Law (3 credits, every other year) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 207--------------------------------- Karen Engle [with Dan Greenwood] University of Utah College of Law Salt Lake City, UT 84112 (801) 581-7352 engle@admn1.law.utah.edu Groups & the Law (2 or 3 credits, every other year) Critical Legal Theory (2 credits, every other year) Susan Estrich University of Southern California Law Center 699 Exposition Boulevard University Park Los Angeles, CA 90089 (213) 740-7578 sestrich@law.usc.edu Gender Discrimination (3 credits, once every year) Sally Goldfarb (Adjunct) [with Debra Ellis (Adjunct)] New York University School of Law 40 Washington Square South New York, NY 10012 (212) 998-6100 Women & the Law (3 credits, every other year) Sally Gordon University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104 (215) 898-7483 sgordon@oyez.law.upenn.edu Feminist Legal History (1 credit, new course; frequency to be determined) Judy Greenberg New England School of Law 154 Stuart Street Boston, MA 02116 (617) 451-0010 Women & the Law (3 credits, once every year) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 208--------------------------------- Dan Greenwood [with Karen Engle] University of Utah College of Law Salt Lake City, UT 84112 (801) 581-5201 greenwood@admn1.law.utah.edu Groups & the Law (2 or 3 credits, every other year) Susan Grover College of William and Mary Marshall-Wythe School of Law South Henry Street P.O. Box 8795 Williamsburg, VA 23187 (804) 221-3846 ssgrov@mail.wm.edu Women & the Law (3 credits, new course; frequency to be determined) Jack Harrison (Adjunct) University of Cincinnati College of Law Clifton and Calhoun Streets Cincinnati, OH 45221 (513) 556-6805 AIDS & the Law (2 credits, new course; frequency to be determined) John Heilman (Visiting Faculty) Whittier Law School 5353 W. 3rd Street Los Angeles, CA 90020 (213) 938-3621 ext. 245 Contemporary Social Problems: AIDS & the Law (2 credits, once every year) Carrie Hempel University of Southern California Law Center 699 Exposition Boulevard University Park Los Angeles, CA 90089 (213) 740-9322 Women & Criminal Justice System (2 credits, once every year) Lynne Henderson ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 209--------------------------------- Indiana University-Bloomington School of Law Third Street and Indiana Avenue Bloomington, IN 47405 (812) 855-4079 lhenders@indiana.edu Women & the Law (3 credits, once every year) Deborah Hensler University of Southern California Law Center 699 Exposition Boulevard University Park Los Angeles, CA 90089 (213) 740-3065 dhensler@law.usc.edu Feminist Issues in Biomedical Legal Ethics (2 credits, every other year) Sheila Hyatt University of Denver College of Law 7039 East 18th Avenue Denver, CO 80220 (303) 871-6293 Gender & the Law (3 credits, once every year) Paula Johnson Syracuse University College of Law Syracuse, NY 13244 (315) 443-2524 pcjohnso@syr.law.edu Women & Criminal Justice System (3 credits, once every year) Ellen Kandonian University of Maine School of Law 246 Deering Avenue Portland, ME 04102 (207) 780-4355 Women & the Law (3 credits, every other year) Mitchell Katine (Adjunct) [with Catherine Greene Burnett (Adjunct)] South Texas College of Law 1303 San Jacinto Houston, TX 77002-7000 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 210--------------------------------- (713) 659-8040 HIV Law Clinic (3 or 4 credits, once each semester [twice every year]) Dinesh Khosla (CUNY) City University of New York School of Law Queens College 65-21 Main Street Flushing, NY 11367 (718) 575-4315 Liberty, Equality & Due Process (2 credits, once every year) Sheila Kuehl (Adjunct) Loyola Law School One East Pearson Street Chicago, IL 60611 (818) 501-8991* Gender & the Law (2 credits, once every year) Sheila Kuehl (Adjunct) University of California-Los Angeles School of Law 405 Hilgard Avenue Los Angeles, CA 90024 (818) 501-8991* Women & the Law (3 credits, once every year) Susan Looper-Friedman Capital University Law School 665 South High Street Columbus, Ohio 43215 (614) 445-8836 ext. 112 slooper@capital.edu Feminist Theory (2 credits, once every year) Jean Love University of Iowa College of Law Iowa City, IA 52242 (319) 335-9018 jlove@lawnet-po.law.uiowa.edu Anti-Discrimination Law (3 credits, once every year) Catharine Mac Kinnon University of Michigan ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 211--------------------------------- Law School 625 South State Street Ann Arbor, MI 48109 (313) 764-1358 catherine.a.mackinnon@umich.edu Sex Equality (2 or 3 credits, every other year) Nancy G. Maxwell Washburn University School of Law 1700 College Topeka, KS 66621 (913) 231-1060 ext. 1837 zzmaxw@acc.wuacc.edu Feminist Jurisprudence (2 or 3 credits, every three years) Shirley Mays Capital University Law School 665 South High Street Columbus, OH 43215 (614) 445-8836 ext. 234 Sex-Based Discrimination (2 or 3 credits, once every year) A. Ray McCoy Hamline University School of Law 1536 Hewitt Avenue St. Paul, MN 55104 (612) 641-2966 Employment Discrimination (2 credits, every other year) David Nadvorney (CUNY) City University of New York School of Law Queens College 65-21 Main Street Flushing, NY 11367 (718) 575-4343 nad@maclaw.law.cuny.edu Street Law (3 credits, varies) Joan Neisser Seton Hall University School of Law 1 Newark Center Newark, NJ 07102 (201) 642-8724 Gender & the Law (2 credits, every other year) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 212--------------------------------- Twila Perry Rutgers, The State University of New Jersey S.I. Newhouse Center for Law & Justice 15 Washington Street Newark, New Jersey 07102 (201) 648-5927 Race, Gender & Torts (2 credits, once every year) Debra Post (Visiting Faculty) Syracuse University College of Law Syracuse, NY 13244 (315) 443-2524 Race & Law (3 credits, once every year) Ruthann Robson (CUNY) City University of New York School of Law Queens College 65-21 Main Street Flushing, NY 11367 (718) 575-4447 rr@maclaw.law.cuny.edu Family Law (2 credits, once every year) Diane Rosenberg (Adjunct) De Paul University College of Law 25 East Jackson Boulevard Chicago, IL 60604 (312) 362-8701 Women & the Law (3 credits, once every year) Elizabeth Spahn New England School of Law 154 Stuart Street Boston, MA 02116 (617) 451-0010 Reproductive Freedom (2 credits, once every year) Ann Stanton Arizona State University College of Law Box 877906 Tempe, AZ 85287-7906 (602) 965-6648 ann.stanton@asu.edu ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 213--------------------------------- Gender & Sexuality (2 or 3 credits, every other year) Jean R. Sternlight Florida State University College of Law 425 W. Jefferson Street Tallahasse, FL 32306-1034 (904) 644-1596 jsternli@law.fsu.edu AIDS & the Law (3 credits, once every year) Family Law (3 credits, twice every year) Judge Steven Thayer (Adjunct) Boston University School of Law 765 Commonwealth Avenue Boston, MA 02215 (617) 353-3110 Bioethics (3 credits, once every year) Debora Threedy University of Utah College of Law Salt Lake City, Utah 84112 (801) 581-5165 threedy@admnl.law.utah.edu Feminist Legal Theory (3 credits, every other year) N. Morrison Torrey De Paul University College of Law 25 East Jackson Boulevard Chicago, IL 60604 (312) 362-8135 Feminist Jurisprudence (3 credits, once every year) Barbara Watts University of Cincinnati College of Law Clifton and Calhoun Streets Cincinnati, OH 45221 (513) 556-4174 Sex-Based Discrimination (2 credits, once every year) Catharine Wells University of Southern California Law Center 699 Exposition Boulevard University Park ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 214--------------------------------- Los Angeles, CA 90089 (213) 740-4793 cwells.@law.usc.edu Feminist Jurisprudence (2 credits, once every year) Susan Williams Indiana University-Bloomington School of Law Third Street and Indiana Avenue Bloomington, IN 47405 (812) 855-7995 susanwilliams@indiana.edu AIDS & the Law (3 credits, once every year) Michele A. Zavos (Adjunct) American University Washington College of Law 4400 Massachusetts Avenue, N.W. Washington, DC 20016 (202) 885-2600 AIDS & the Law (2 credits, new course; frequency to be determined) Copyright 1995 by Francisco X. Valdes Table 4: Comparative Results (Shultz Surveys) March, 1995 Arizona State University College of Law Previous Course(s):Gender, Sexuality & the Law Current Course(s):Gender & Sexuality Boston University School of Law Previous Course(s):Law & Regulation of Morality Current Course(s):Bioethics Brooklyn Law School Previous Course(s):Morals, Sexuality & the Law Current Course(s):Sexuality & the Law University of California-Hastings School of Law Previous Course(s):Selected Problems in Civil Rights; Sex Discrimination & the Law; Constitution & the Family Current Course(s):Selected Problems in Civil Rights University of California-Los Angeles School of Law Previous Course(s):Seminar in Feminist Legal Theory; Seminar in Legal Theory: Toward Feminist Jurisprudence; Employment Discrimination; Women & the Law; Women & the Law ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 215--------------------------------- - Feminist Jurisprudence Current Course(s):Sexual Orientation & the Law Women & the Law California Western School of Law Previous Course(s):Law, Gender & Sexuality Current Course(s):Law, Policy & Sexuality; Sexual Orientation & the Law University of Chicago Law School Previous Course(s):AIDS: Legal & Public Policy Issues Current Course(s):Critical Race Studies & Lesbian\Gay Legal Theory De Paul University College of Law Previous Course(s):Feminist Jurisprudence Current Course(s):Feminist Jurisprudence; Women & the Law Florida State College of Law Previous Course(s):Women & the Law; Pornography & Prostitution; Race, Gender & the Law Current Course(s):Women & the Law; Prostitution & Pornography; Reproductive Technologies & Rights; AIDS & the Law; Family Law Golden Gate University School of Law Previous Course(s):Gender, Sexual Identity & the Law Current Course(s):Sexual Orientation & The Law Harvard University Law School Previous Course(s):Sexual Orientation & the Law Current Course(s):Law, Sex & Identity University of Houston Law Center Previous Course(s):AIDS & the Law Current Course(s):Sexual Orientation & the Law; HIV & the Law Chicago-Kent College of Law Illinois Institute of Technology Previous Course(s):AIDS & the Law Current Course(s):Sexual Orientation & the Law University of Iowa College of Law Previous Course(s):Civil Rights Current Course(s):Anti-Discrimination Law; Gender Bias John Marshall Law School Previous Course(s):Civil Rights; Employment Discrimination; AIDS, Civil Rights & Employment Discrimination; AIDS Current Course(s):Law Diversity ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 216--------------------------------- University of Miami School of Law Previous Course(s):AIDS & the Law Current Course(s):Sexual Relationships & the Law Seminar University of Minnesota Law School Previous Course(s):Gender & the Law Current Course(s): University of Missouri-Kansas City School of Law Previous Course(s):Family Law; Children & the Law Current Course(s): William Mitchell College of Law Previous Course(s):AIDS & the Law Current Course(s):Law & Sexuality New York Law School Previous Course(s):Sexuality & Law Current Course(s):Sexuality & the Law Northeastern University School of Law Previous Course(s):Sexual Preference & the Law Current Course(s):Sexual Orientation & the Law Northern Illinois University College of Law Previous Course(s):AIDS & the Law Current Course(s): Nova Southeastern University Shepard Broad Law Center Previous Course(s):Current Constitutional Problems Current Course(s): Ohio State University Pettit College of Law Previous Course(s):AIDS Seminar Current Course(s):Sexual Orientation & The Law University of Oregon School of Law Previous Course(s):Civil Rights: Lesbian & Gay Rights; Sexual Orientation & the Law Current Course(s):Seminar in Civil Rights (generic title known as gay, lesbian legal issues) St. Louis University School of Law Previous Course(s):AIDS & the Law Current Course(s): ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 217--------------------------------- University of Southern California Law Center Previous Course(s):Rights of Domestic Partners Current Course(s):Sexual Orientation & the Law; AIDS & the Law; Gender Discrimination; Feminist Jurisprudence; Women & Criminal Justice System; Feminist Issues in Biomedical Legal Ethics Southwestern University School of Law Previous Course(s):Constitution Law Seminar: Sexuality & the Law Current Course(s):Law & Sexual Orientation Stanford Law School Previous Course(s):Sexual Identity & the Law Current Course(s):Sexual Orientation & the Law Syracuse University College of Law Previous Course(s):Civil Rights Current Course(s):Women & Criminal Justice System; Race & Law Temple University School of Law Previous Course(s):AIDS & the Law Current Course(s): University of Texas School of Law Previous Course(s):Feminist Legal Theory Current Course(s):Gender, Law & History Tulane University School of Law Previous Course(s):Sex, Sexuality & the Law Current Course(s): Wake Forest University School of Law Previous Course(s):Employment Discrimination Current Course(s): Washburn University School of Law Previous Course(s):Feminist Jurisprudence Current Course(s):Comparative Gay & Lesbian Rights; Feminist Jurisprudence CONCLUSION The mixed results reported in the tables and discussion above make for some forward- looking, if general, conclusions regarding both the current situation of and near-term prospects for sexuality and/or sexual orientation legal education. And, though it is difficult, or impossible, to separate cause from effect in the preceding report of mixed results, these findings do suggest actions and directions to guide us in the second decade of this new front in legal education. This mixed picture, however, also makes the significance of one particular phenomenon relatively clear: that individual law teachers are helping, and mightily so, to fill the voids of knowledge created by the silence and ignorance that envelops today, as it has over the ages, the subject of sexuality and sexual orientation in American law, life, and society. Law teachers thus far have provided the impetus for the progression we have ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 218--------------------------------- witnessed during this first decade of effort. Indeed, the very way(s) in which the contents and coverage of "primary" courses are designed show(s) that these courses and teachers are performing double duty; they are trying at once to carry forward two spheres of education and enlightenment. The nature and design of today's "primary" courses indicate that before these courses, and teachers, can engage the study of law relating to sexuality and/or sexual orientation, they first must accommodate, respond to, and overcome the silence and ignorance surrounding and occluding sexuality and sexual orientation in our cultural and educational environments. These courses (and teachers) likewise must respond to the misinformation, prejudice, and antipathy that (re)produces and accompanies this silence and ignorance. And, moreover, these courses and teachers also must address and negotiate the corresponding silence, ignorance, and malevolence (still) found specifically within legal culture, doctrine, and decisionmaking regarding sexuality and sexual orientation. These circumstances jointly necessitate and beckon the sort of innovative "primary" course that today's law teachers have designed and created: cross-disciplinary, trans-doctrinal, multi-methodological. These results thus show how individual interest, imagination, and initiative are combining to impel American legal education toward responsible coverage of this historically marginalized topic. These findings also underscore, albeit indirectly, the importance of these pioneering courses and efforts to legal and social reform. By penetrating the consciousness, engaging the intellect, and touching the humanity of tomorrow's lawyers today, these courses in time may and should help to introduce informed and caring sensibilities into the beliefs, attitudes, decisions, and actions of American law and society. The challenge, then, is to ensure that these courses continue to expand and to prosper. However, and for the same reason, it is equally important to ensure that legal education on sexuality and/or sexual orientation also continues to be mainstreamed within broader or "related" law school courses. Continuing the recent expansion of coverage along both of these specialty and mainstream tracks is crucial to the accomplishment of twin educational goals, both in the short and long term: ensuring the dissemination of current information widely and contextually, as it arises in related fields or settings, and also guaranteeing the opportunity for in-depth study of the particular subject. These courses and efforts in turn suggest three areas of concentrated work in the next few years regarding this field of American legal education. The first of these applies both to "primary" and "related" courses. The second applies specifically to "primary" courses and the third specifically to "related" courses. Jointly, the three effectively issue a call for a second decade of success in the continuing incorporation of these issues into the American law school experience. The first of these areas is making sure that both "primary" and "related" courses keep up to date with the burgeoning literature of legal studies and scholarship relating to sexuality and/or sexual orientation. This effort is critical because the field of sexuality and sexual orientation within the law is moving quickly and expanding greatly. Keeping track of these developments is especially important in part because it is especially difficult: the magnitude and pace of scholarly output is challenging enough, but the relative lack of pre-existing information networks relating to law and sexuality/sexual orientation makes it additionally difficult to stay abreast of this emergent field. Yet doing so is the only way of ensuring that the delivery of education stays current with the production of knowledge. It is an effort that cannot falter if these courses and teachers are to succeed in the long term. The second of these areas is expanding the range of source materials for "primary" courses specifically. The handful of books introduced in the past couple of years, and presently being used in some of these courses, clearly have gone a long way toward alleviating the complete lack of standardized materials that previously existed. These books clearly have responded to the market's needs, and additionally have helped facilitate the cross-disciplinary, trans-doctrinal nature of today's courses. Their creativity thus points the way toward the crafting of (one or more) cutting-edge casebook(s) on this subject that build(s) on their strengths while enlarging the universe of options and approaches available to teachers and students. The amplification and diversification of readily available course materials is ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 219--------------------------------- necessary not only to accommodating the recent and ongoing proliferation of ideas and knowledge at the intersection of law and sexuality/sexual orientation, but also to enriching the pedagogical and substantive range of "primary" courses in their second decade of operation. The third of these areas in need of concentrated work during the coming years is finding ways to further the inclusion and integration of sexuality and sexual orientation issues specifically within "related" courses. Of course, one key way of doing so is to make the need for such inclusiveness more widely and deeply appreciated among teachers of "related" courses, and then to provide them with ready means of filling this understood need; i.e., we need to generate and circulate appropriate sources or materials that readily can be adopted and incorporated into the "related" course(s). The progress already made during the past decade again provides a solid point of departure for such efforts because the (re)design of "related" courses that already have been made inclusive can point the way for others to do likewise: as with the "primary" courses, we need to disseminate and improve the ideas, experience, and insights of the past ten years for the next ten years with respect to the "related" courses.38 In sum, this update shows that the stirrings documented by Gene Schultz starting ten years ago continue to grow in number and vitality. Without doubt, this span of time has been a decade of unprecedented and critical growth. But in some ways, perhaps, the coming years represent even greater opportunities, and challenges: the coming years will determine whether this decade of initial gains is only a beginning or already a plateau. For better or worse, the coming years will see the development and maturation, or the stagnation and retrenchment, of a discipline still in its infancy. Those of us interested in ensuring the former and foreclosing the latter therefore should embark on conscious collaborations in the improvement of our materials and methods. In the short run, these efforts can begin with the ongoing and informal use of the "teachsex" Internet discussion list mentioned above to raise and discuss issues of common interest or concern on an everyday, informal, and continuing basis.39 This continuous exchange and discussion of information can be further informed and motivated by periodic gatherings at increased programs, panels, and conferences on the subject, such as the one being planned and scheduled in conjunction with this year's AALS meeting in San Antonio.40 Obviously, it takes collective will, time, and energy to create and sustain these tools of learning and teaching; it takes group commitment and involvement to plan and conduct such events and communication. But sharing ideas, knowledge, plans, and materials, is how we can continue both to consolidate and expand the progress of our first decade. With these means and networks of discourse increasingly in place, today's teachers increasingly can invigorate each others' imagination, deepen each others' knowledge, and, over time, mutually enhance our collective success toward the meaningful inclusion of education on sexuality and sexual orientation into the American law school experience. Hopefully, we will do so. ENDNOTES 1. Associate Professor, California Western School of Law. J.S.D. Stanford Law School 1994; J.S.M. Stanford Law School 1991; J.D. with honors University of Florida College of Law 1984; B.A. University of California-Berkeley 1978. My thanks go to the many faculty and staff members at various schools that cooperated in the compilation of data for this project. Special thanks go to Jane Schacter for her helpful comments on an earlier draft of the article. The findings reported in this article could not have been finalized without the tireless support of faculty secretaries Sandra Murray, Mary-Ellen Norvell, and Sonia Smith, and of research assistants Edward R. Miley and Stefany Tewell. Likewise, Barbara Glennan, Mary Lou Mitchell, and Raleigh Moody helped to create the "teachsex" discussion list on the Internet that is discussed in this article. My thanks go to them as well. All errors or shortcomings found below are entirely mine. 2. See infra notes 12 to 28 and accompanying text. 3. Course classifications are based on a combination of information, including: where available, course syllabi and/or descriptions, course titles, and anecdotal, personal, or telephonic data. As the description suggests, "primary" courses concentrate specifically and ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 220--------------------------------- directly on the study of sexuality and/or sexual orientation legal issues. To some extent, designation of a course as "primary" is necessarily subjective, but is usually obvious in light of the course information mentioned above. The designation of a course as "related" to these issues is more uncertain. See infra note 4. 4. Course classifications are based on a combination of information. See supra note 3. As the description suggests, "related" courses are not focused on the study of sexuality and/or sexual orientation legal issues, but do provide some significant or substantial coverage of them. Determinations of "significant" or "substantial" are necessarily subjective, making these designations relatively less certain than the "primary" designations. See supra note 3. 5. However, as discussed below, teachers have begun to adopt as texts for these courses one or more of the several books published in recent years on this subject, and also have managed to converge in some key respects regarding course design and coverage. See, e.g., infra notes 30 to 33 and accompanying text. 6. What this article cannot purport to do is claim scientific precision, or even empirical accuracy, because the article conveys "reports from the field" gathered via the project, which are not susceptible to independent verification. In effect, this article takes a snapshot of the self-reported state of legal education on sexuality and/or sexual orientation today. And given the vagaries of faculty changes and curricular planning, this picture inevitably changes either slightly or significantly from year to year. However, this snapshot can and does help to provide important information on the situation and prospects for education on sexuality and/or sexual orientation that is being offered (or that could be offered) by American law schools, as elaborated in the following pages and tables. 7. The mailing included "Fee Paid" schools. A copy of the school questionnaire is appended to the end of this article (and tables) as "Appendix A." 8. Telephone responses are identified by an asterisk in Table 1, infra, which reports on the "Overall Results." 9. A copy of the faculty questionnaire is appended to the end of this article (and tables) as "Appendix B." 10. See Syllabi Table, infra. 11. The attendees who "signed in" were: Paris R. Baldacci, Mary Becker, Susan Becker, Pat Cain, Deborah A. Calloway, Lan Cao, Mary Anne Case, Kathleen Clark, Michael L. Closen, Ruth Colker, Barbara J. Cox, Jane Dolkart, Alice Dueker, Karen Engle, Marc Fajer, Virginia Gordan, Berta Esperanza Hernandez, Barbara Holden-Smith, Maria J. Hollandsworth, Paula Johnson, Sharon Keller, Peter K. Y. Kwan, William P. LaPiana, Sylvia R. Lazos, Arthur Leonard, Nancy G. Maxwell, Binny Miller, Akilah Monifa, Odeana R. Neal, Nancy Polikoff, Frederick P. Rothman, Julie Shapiro, Charlene Smith, Karla C. Springman, Jean R. Sternlight, Mark Strasser, Francisco Valdes, and Sheryl Scheible Wolf. This meeting was only partially devoted to the purpose of bringing together teachers of these courses, and therefore not all of these attendees were there for this particular purpose. 12. See Table 2, infra, which reports on courses (and teaching faculty) devoted "primarily" to sexuality and/or sexual orientation legal issues. 13. See Table 3, infra, which reports the courses (and teaching faculty) "related" to sexuality and/or sexual orientation legal issues. It additionally should be emphasized at this point that these results are not the main concern of the project, but are presented nonetheless in order to supplement the results regarding "primary" courses and coverage. Consequently, it also should be noted that "related" courses may be under-reported in this survey to the extent that ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 221--------------------------------- schools with "primary" courses may not have included "related" courses in their survey responses whereas schools without "primary" courses would tend to do so. If so, the total number of courses would be higher than 112, though the total for "primary" courses would remain at 48. 14. See Gene P. Schultz, The Inclusion of Sexual Orientation in Non-Discrimination Policies: A Survey of American Law Schools, 2 L. & SEXUALITY 131, 136-37 (1992) (reporting on the combined results of several studies that included both non-discrimination policies and course offerings). The 35 schools were: Arizona State University College of Law, Boston University School of Law, Brooklyn Law School, University of California Hastings College of the Law, University of California-Los Angeles School of Law, California Western School of Law, University of Chicago Law School, De Paul University College of Law, Florida State University College of Law, Golden Gate University School of Law, Harvard University Law School, University of Houston Law Center, Illinois Institute of Technology Chicago- Kent College of Law, University of Iowa College of Law, John Marshall Law School, University of Miami School of Law, University of Minnesota Law School, University of Missouri-Kansas City School of Law, William Mitchell College of Law, New York Law School, Northeastern University School of Law, Northern Illinois University College of Law, Nova Southeastern University Shepard Broad Law Center, Ohio State University College of Law, University of Oregon School of Law, Saint Louis University School of Law, University of Southern California Law Center, Southwestern University School of Law, Stanford Law School, Syracuse University College of Law, Temple University School of Law, University of Texas School of Law, Tulane University School of Law, Wake Forest University School of Law, and Washburn University School of Law. Id. 15. See supra notes 3 and 4. 16. See Schultz, supra note 14, at 136-37. These 13 schools (with corresponding courses) were: Arizona State University College of Law (Gender, Sexuality & the Law); Brooklyn Law School (Morals, Sexuality & the Law); University of California Hastings College of the Law (Selected Problems in Civil Rights); California Western School of Law (Law, Gender & Sexuality); Golden Gate University School of Law (Gender, Sexual Identity & the Law); Harvard University Law School (Sexual Orientation & the Law); New York Law School (Sexuality & the Law); Northeastern University School of Law (Sexual Preference & the Law); University of Oregon School of Law (Civil Rights: Lesbian & Gay Rights, and Sexual Orientation Law); University of Southern California Law Center (Rights of Domestic Partners); Southwestern University School of Law (Constitutional Law Seminar: Sexuality & the Law); Stanford Law School (Sexual Identity & the Law); and Tulane University School of Law (Sex, Sexuality & the Law). Id. 17. Id. These 23 schools (with corresponding courses) were: Boston University School of Law (Law & Regulation of Morality); University of California Hastings College of the Law (Sex Discrimination and the Law, Constitution and the Family); University of California-Los Angeles School of Law (Seminar in Feminist Legal Theory, Seminar in Legal Theory: Toward Feminist Jurisprudence, Employment Discrimination, Women and the Law, Women and the Law -- Feminist Jurisprudence); University of Chicago Law School (AIDS: Legal & Public Policy Issues); De Paul University College of Law (Feminist Jurisprudence); Florida State University College of Law (Women & the Law, Pornography and Prostitution, Race, Gender & the Law); University of Houston Law Center (AIDS & the Law); Illinois Institute of Technology Chicago-Kent College of Law (AIDS & the Law); University of Iowa College of Law (Civil Rights); John Marshall Law School (Civil Rights, Employment Discrimination, AIDS, Civil Rights & Employment Discrimination, AIDS); University of Miami School of Law (AIDS & the Law); University of Minnesota Law School (Gender & the Law); University of Missouri-Kansas City School of Law (Family Law, Children & the Law); William Mitchell College of Law (AIDS & the Law); Northern Illinois University College of Law (AIDS & the Law); Nova Southeastern University Shepard Broad Law Center (Current ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 222--------------------------------- Constitutional Problems); Ohio State University College of Law (AIDS Seminar); St. Louis University School of Law (AIDS & the Law); Syracuse University College of Law (Civil Rights); Temple University School of Law (AIDS & the Law); University of Texas School of Law (Feminist Legal Theory); Wake Forest University School of Law (Employment Discrimination); and Washburn University School of Law (Feminist Jurisprudence). Id. 18. See Table 1, infra, reporting the Overall Results of this project. 19. See Table 4, infra, which presents the "Comparative Results" for this survey and for the Schultz surveys. These eight schools (with "lost" courses) are: University of Minnesota Law School (Gender & the Law); University of Missouri-Kansas City School of Law (Family Law); Northern Illinois University College of Law (AIDS & the Law); Nova Southeastern University Shepard Broad Law Center (Current Constitutional Problems); Saint Louis University School of Law (AIDS & the Law); Temple University School of Law (AIDS & the Law); Tulane University School of Law (Sex, Sexuality & the Law); and Wake Forest University School of Law (Employment Discrimination). Id. 20. See Table 2, infra, reporting information, including enrollment figures, for "primary" courses. 21. See Table 1, infra, reporting Overall Results. 22. The totals for the figures presented in the Summary Table may vary in some categories because some courses are taught by different faculty members in different years, and sometimes for different amounts of academic credit, or because the scheduling intervals vary periodically, or because some courses are taught with another faculty member, or because some faculty members teach multiple classes concurrently. In each of these circumstances, individual courses and/or teachers may be "counted" more than once. 23. See Table 2, infra, for the enrollment figures of "primary" courses reported by the various schools. 24. See Schultz, supra note 14 at 135. 25. This continuing but slowing growth may indicate that the relatively "easy" progress has been achieved in the past decade, and that the progress to be made in the next decade may be more difficult. 26. Precise numbers for faculty are not provided here because shifting circumstances create numerical discrepancies that may lead to statistical confusion. See generally supra note 21. 27. But, again, this progress is mixed and, at best, cause only for cautious optimism because heterosexism, whether conscious or unconscious, still pervades American legal education at all levels. One telling indicator is that the unofficial (and hence confidential) mailing list of the AALS Section on Gay and Lesbian Legal Issues is about four times as extensive as the official (and hence public) mailing list. This disparity strongly suggests that many persons in legal academia today still feel compelled to "play it safe" when it comes to issues of sexuality and/or sexual orientation. 28. Though it was impracticable to publish all of the actual syllabi, the faculty providing them have agreed to share them with others who teach, or who are interested in teaching, these courses. If you teach in this area, or are preparing to do so, you can obtain a (free) copy of the set by contacting the author. 29. This assessment is based entirely (and subjectively) on the author's review and comparison of the submitted syllabi, which of course are not necessarily representative of ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 223--------------------------------- other courses devoted to this subject. 30. These nine courses are: Mary Anne Bobinski's course on Special Topics in Discrimination Law: Sexual Orientation, at the University of Houston Law Center; Dan Danielsen's course on Law, Sex & Identity, at Harvard University Law School; Ruth Harlow's course on Sexuality & the Law, at Brooklyn Law School; Jon W. Davidson with Christine Littleton's course on Sexual Orientation & the Law, at the University of California- Los Angeles School of Law; Stephanie Ridder's course on Sexuality & the Law, at George Washington University National Law Center; Vincent Samar's course on Sexual Orientation & the Law, at Chicago-Kent College of Law, Illinois Institute of Technology; Jon W. Davidson's course on Sexual Orientation & the Law, at Loyola Law School in Los Angeles; Jane Scarborough course on Sexual Orientation & the Law, at Northeastern University School of Law; Jane Schacter's course on Sexual Orientation & the Law, at the University of Wisconsin Law School; and, Michele Zavos's course on Sexual Orientation & the Law, at American University Washington College of Law. The Rubenstein book is a compilation of various cross-disciplinary materials, and in this way represents the pre-packaged set of readings that most closely approximates the materials that seem generally preferred by faculty members currently teaching these courses. For a review of this book, see Jane S. Schacter, Poised at the Threshold: Sexual Orientation, Law, and the Law School Curriculum in the Nineties, 92 MICH. L. REV. 1910 (1994). In addition, two of these courses report adoption of a second required text: Dan Danielsen's syllabus reports the use of The Lesbian and Gay Studies Reader (H. Abelove, M. Barale, D. Halperin eds. 1993)), and Vincent Samar's syllabus reports the use of The Right to Privacy: Gays, Lesbians, and the Constitution (1991), authored personally by Samar. 31. These two courses are: Craig W. Christensen's course on Law & Sexual Orientation, at Southwestern University School of Law, and Arthur Leonard's course on Sexuality & the Law, at New York Law School. The Leonard book is closest in nature to a traditional casebook in that it is organized around the presentation of various court rulings regarding sexuality and/or sexual orientation, with accompanying notes. 32. These two courses are: Barbara J. Cox's courses on Sexual Orientation & the Law, at California Western School of Law and at the University of San Diego School of Law. Robson's book is an exploration of lesbian life under law and an exposition of lesbian legal theory. The Harvard Law Review is a survey of legal issues pertaining to sexual orientation in various social contexts. D'Emilio's book is a historical account of gay and lesbian self- grouping in urban centers from World War II to the 1970s. 33. This course is Ruthann Robson's course Sexuality & the Law, at (CUNY) City University of New York School of Law at Queens College. The Freedman and D'Emilio book is a historical account of the ways in which human sexualities have been understood and regulated throughout American society over the years. 34. All subscribers should retain the confirmation message because it contains instructions on how to "unsubscribe" from the list. If you experience difficulty in subscribing to this list, please contact the author. 35. See supra note 11. 36. "Day Minus One" signifies the day before the AALS Annual Meeting officially begins, which, for example, this year would have been Thursday, January 5th. 37. See supra notes 3 to 11 and accompanying text. 38. The conferences that SALT has sponsored on the inclusion of sex, race, class, and sexual orientation in mainstream courses such as contracts or torts serve as a possible model for ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 224--------------------------------- similar efforts with respect to "related" courses like employment law, family law or health law. Additionally, the Curriculum Project founded at Stanford Law School in 1990 by interested students and faculty also serves as a possible model for these efforts. The Curriculum Project compiled materials into a book titled Beyond the Casebook, which provided easy-to-use supplementary materials on sex, race, class, and sexual orientation to supplement first-year courses like contracts and civil procedure. 39. See supra note 34 and accompanying text. 40. See, e.g., supra notes 35 to 36 and accompanying text. APPENDIX A (School Survey) 1. Does a course presently exist in your law school curriculum that is devoted primarily to legal issues relating to sexuality or sexual orientation? _______ YES _______ NO If you answered "yes" to this question, please continue; otherwise, please return the form with your "no" response in the attached stamped, self-addressed enveloped. 2. What is the title of this course, as it appears in your school catalog or other literature? 3. How often is this course actually offered? ______ Once every year ______ Every other year 4. How many units of academic credit toward graduation are allotted to this course? 5. Is the course taught by a full-time, tenure-track (or tenured) member of the regular law school faculty? _______ YES _______ NO 6. Please state the names of the faculty member(s) who teach this course. 7. Name of responding school: ______________________________ APPENDIX B ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 225--------------------------------- (Faculty Survey) Name: ________________________________ 1. Are you willing to share your course syllaus? YES _____________ NO ____________ 2. If so, is a copy of it enclosed? YES _____________ NO ____________ 3. Are you attending the AALS annual meeting in New Orleans, or any part of it? YES _____________ NO ____________ 4. If only partially, please indicate the dates you'll be there: From ____________ To _____________ 5. Are you interested in getting together at the AALS? YES _____________ NO ____________ 6. If so, please rank (1-3) your general time preferences: Breakfast ______ Lunch _________ Dinner ___________ 7. Do you have any specific conflicts during any particular time/day? If so, please specify the times/days, using the reverse side this page if necessary: 8. Are you or your school hooked up to Internet? YES _____________ NO ____________ 9. If so, your e-mail address is: 10. May your name be published with the survey results? YES _____________ NO ____________ ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 226--------------------------------- Please use this space to write any other thoughts that you would like to share with me or with the group. What a Difference a Gay Makes: An Empirical Study of the Impact of 'Out' Gay Law Faculty on Law School Curriculum and Policies Steven Hartwell - USD Law School [With thanks to Julie Dunlap and Dinyar Mehta for help in gathering data, and Dr. Pat Anderson for data analysis] Introduction. In 1985, the Section on Gay and Lesbian Issues of the American Association of Law Schools (AALS) conducted the first survey ever of member schools on gay-related issues. The surveys, which were repeated in 1987 and 1990, asked the member schools to report whether that school had a student gay and lesbian organization, offered any courses that focused on gay and lesbian legal issues and whether the school had any anti-discrimination policies that included sexual orientation. Although the surveys were not designed to meet the standards of empirical research, they clearly indicated a sharp increase over the five-year period from 1985 to 1990 in the number of lesbian and gay student organizations, lesbian- and gay-related course offerings and in anti-discrimination policies.1 This Survey The present survey was designed to complement the AALS surveys by inquiring how the presence of "out"2 gay and lesbian instructors affect3 the likelihood that a member school has any of the three items surveyed by the AALS study, that is, a gay and lesbian student organization, gay-related courses and a gay and lesbian non-discrimination policy.4 The over-all finding of this report is that the presence of out gay and lesbian faculty correlates strongly with existence of all three items. This report provides evidence for the argument that the gay and lesbian community (as well as the larger community) has much to gain when "out" faculty are hired and when "closeted" faculty feel safe to come out.4 Comparison with the AALS Study. Data for both the AALS and the present study were gathered by means of mailed surveys. The AALS questionnaires were sent to law deans. Questionnaires in this study were mailed anonymously to clinic instructors. The AALS questionnaires did not ask about the sexual orientation of faculty members or of the individual responding to the questionnaire. The present survey asked about both. To maintain maximum anonymity and confidentiality with the present survey, the first questionnaire, which indicates the respondent's school, and the second questionnaire, which indicates the respondent's sexual orientation, were analyzed separately. The author had no way to match up respondents with their respective schools. Difficulties Historically in Conducting Gay Research. Historically, all gay research has been hampered by the lack of systematically obtained data. Research money was lacking. Researchers interested in such research ran the risk of identifying themselves to their sponsoring institutions as gay or lesbian.6 Participating research subjects ran the same risk of publicly revealing their sexuality identity. As a result of this complex of bigotry, reliable research data were rare. Although times have changed somewhat since Stonewall, it is highly doubtful even today whether the AALS would consider ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 227--------------------------------- mailing out a questionnaire requesting, for example, that the responding deans state their sexual orientation or report whether there were "out" instructors on their faculty. The AALS Clinic Conference Opportunity. The author was presented with a unique opportunity to gather systematically this kind of sensitive data. He was invited to participate in a plenary session of the Spring, 1992, AALS Clinic Conference in Albuquerque, New Mexico. He prepared a video-tape for the conference that explicitly raised issues of sexual orientation. The video-tape and attendant discussion were favorably received.7 The author surmised that the favorable response and his association with the session provided an auspicious opportunity to administer a questionnaire about gay-related issues. A research assistant randomly selected one clinic instructor from each of the 105 law schools that attended the Clinic Conference and mailed the instructor two questionnaires. The initial mailing produced 53 responses; a follow-up letter produced 15 more responses for a total of 68.8 The First Questionnaire. The first questionnaire asked about the respondent's law school. The goal of this questionnaire was to investigate what effect the presence of "out" gay faculty might have on gay-oriented student organizations, the inclusion of courses dealing with sexual orientation, school non-discrimination policies and on gay-friendly school promotional material. Responses are summarized in Table One. To determine what correlation existed, if any, between the presence of out gay faculty and these other findings, that is to say, whether the presence of out gay faculty made it more likely that the same school also had a gay-oriented student organization, etc., a chi-square test was applied. This test found a highly significant correlation between the presence of out gay faculty and two items: a gay-oriented student organization (Pearson value = 20.9, p < .00005) and a gay non-discrimination policy (Pearson value = 14.3, p < .001). The data suggest a positive correlation between out faculty and gay-issue courses and also with promotional material that promotional material that welcomes gays as potential students. These results are summarized in Table Two. The Second Questionnaire. The second questionnaire inquired of the respondent personally. The goal of this second questionnaire was to investigate the correlation between the respondents' sexual orientation and their teaching, assessment of prejudice facing gay people, their comfort in discussing gay issues with colleagues, and their comfort in revealing personal information. The respondents were asked to indicate their sexual orientation on a Likart scale of 1 to 7, with 1 indicating exclusive homosexuality and 7 indicating exclusive heterosexuality. Eleven respondents marked either 1 or 2 (homosexual), four marked 3, 4 or 5 (bisexual) and fifty- two marked 6 or 7 (heterosexual).9 These data are summarized in Table Three. Applying again a chi-square test, no correlation was statistically significant. Two correlations approached statistical significance, the correlation between sexual orientation and concern for anonymity, where gay and bi-sexual respondents were more concerned about anonymity than straights, and sexual orientation and courses taught, where gay and bi-sexual were more likely to raise gay issues in their classes than straight instructors. These correlations are summarized in Table Four. Some Comparisons Between the AALS and the Present Study. The AALS survey and the present survey asked three questions in common: Is there a gay and lesbian student organization at the school? Are courses offered that focus on sexual orientation? Does the school have a gay and lesbian anti-discrimination policy? The most recent AALS study, conducted in 1990, surveyed 158 schools of which 107 responded (return rate of 70%). Our study, initiated in 1992, surveyed 105 schools of which 68 responded (return rate of 65%). As to the first question, regarding the existence of a gay and lesbian student organization, the 1990 AALS study reported a "yes" percent of 48%. Our survey reported a "yes" percent of 63%. Regarding gay-related course offerings, the 1990 AALS ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 228--------------------------------- study reported a "yes" percent of 31% and our study 48%. The AALS survey reported that 80% of the schools had in effect gay and lesbian non-discrimination policies. Eliminating our respondents who "did not know," our "yes" percent was 76%. When the "don't knows" are added in, the "yes" percent drops to 63%. Obviously, we cannot make a strict comparison between the 1990 AALS survey and the author's because the pool of schools that responded differ. However, for purposes of rough comparison, we can note that a substantial increase from the 1990 AALS to the present 1992 survey on two items, gay courses and student organizations, and a decline on a third item, non-discrimination policies. These data are summarized on Table Five and discussed below. Discussion. As shown on Table One, the presence of out gay faculty correlated with a more gay- positive result in every category. Two of these correlations were statistically significant. The term "correlation" here refers to the rate at which one event is found when another is present -- in this survey, for example, the rate at which a gay and lesbian student organization was found when out gay faculty were present. Correlation does not mean cause -- we cannot say that out gay faculty caused the existence of a gay and lesbian student organization. "Statistically significant" analyzes the probability that the correlation might have occurred through chance alone. In most social science research, if the probability that some phenomenon might have occurred through chance is less than 5%, then that finding is "statistically significant." In the present research, the correlation between out faculty and a gay and lesbian student organization and the correlation between out faculty and a gay non- discrimination policy far exceeded 5% standard. The correlation between out faculty and gay-issue courses initially appeared to be significant in that the probability here far exceeded the 5% standard. However the sample size was one unit short of accepted statistical standards, that is to say, the survey did not produce a statistically sufficient quantity of data, so the data cannot be reported as significant. Although we cannot say that out faculty caused these positive findings, the data support powerfully our intuition that out faculty makes a pivotal difference to the community of gay and lesbian law students. It seems intuitively obvious that a law school with an out gay or lesbian instructor is more likely to teach a course dealing with gay issues or provide a gay and lesbian student organization. Further, our notion that a faculty that has an out gay or lesbian colleague in their midst is much more likely to initiate and support a non- discrimination policy than a faculty composed entirely of straights and closeted gays and lesbians is supported by these findings. The High Percent of Gay, Lesbian and Bisexual Respondents. One of the more interesting finding from the second questionnaire was the high percent of respondents who identified themselves as gay, lesbian or bisexual. Among the 67 respondents, 11 identified themselves as "gay or lesbian", 4 as "bisexual" and 52 as "straight" -- according to the author's reading of the seven-point Likart scale. Altogether, 23% of the respondents identified themselves as other than straight. We have no way of knowing whether this sizeable percent of responding gay/bi-sexual clinicians holds true for non-clinic faculty. Perhaps the clinic is, indeed, a very nellie place. Comparing the AALS and Present Studies. A comparison of the 1990 AALS survey and the present survey indicated that two of the indicators of gay progress (student organizations and courses) showed a positive trend while a third (non-discrimination policies) showed a negative trend. In looking for an explanation for this disturbing negative trend, a school by school comparison was made between the 1990 AALS survey and the present survey. As not all of our respondents indicated their school and not all schools reported this non-discrimination data to the AALS, a one-to-one match was possible at only 41 schools. Among these 41 schools, five schools had indicated "Yes" to the AALS study although our informants at these same schools indicated "No." In all five cases, the schools that had indicated "Yes" to the 1990 AALS survey had failed to provide a copy of their written policy as requested.10 Either our informants were ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 229--------------------------------- unaware of existing policies at these five schools or some deans' offices were less than careful in responding to the AALS questionnaire. In a sixth case, a school reported to the 1990 AALS survey that they had a non-discrimination clause -- but without documentation. The informant from that school in our study wrote: "Finally, in 1991-92 a sexual orientation clause was passed" (emphasis added). For the Reader: Some Questions Left Unanswered. We cannot say that faculty 'coming out' caused gay and lesbian student organizations, non-discrimination policies and favorable promotional literature. We can only say coming out correlated with these events. Would you, the reader, give me some feedback? Could you tell me the following: Did your "being out" cause (in your opinion) the existence of a gay student organization, and/or a non-discrimination policy, and/or favorable promotional material? If so, could you tell me why you think so? For example, were you asked to chair a relevant committee or did you start the gay student organization? The simplest way to respond is by e- mail to "hartwell.teetot.acusd.edu." Otherwise write me c/o The University of San Diego School of Law, Alcala Park, San Diego, CA 92110 - 2492 or call me at 619 260 2353. When I gather enough information, I will make that available through this journal. ENDNOTES 1. Gene P. Schultz, "The Inclusion of Sexual Orientation in Nondiscrimination Policies: A Survey of American Law Schools," 2 Law & Sexuality: A Review of Lesbian and Gay Legal Issue 131. 2. A faculty member can be "out" in different ways to different communities. He or she can be "out" to their close faculty colleagues but closeted to the rest or "out" within the gay community but totally closeted to the faculty. This survey did not ask the respondent to describe what they meant by "out". See, generally, John D'Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in American, (1989). 3. "Gay" is employed here as an adjective to describe both gay men and lesbians. "Gay" is a term of ancient linage according to the historian John Boswell in his Christianity, Social Tolerance and Homosexuality, (1980) and is the term generally preferred by gay people. 4. One rationale for including gays and lesbians on a law school faculty is that their presence as role-models will encourage and empower gay students and because they will enrich the curriculum through their diversity. (Jeffrey G. Sherman, "Speaking Its Name: Sexual Orientation and the Pursuit of Academic Diversity", 39 Wayne Law Review 121, 124 (1992)). To date, no empirical research supports either rationale. 5. This study cannot answer the chicken-and-egg question whether "out" faculty promotes a progressive climate or whether the progressive climate increases the number of out faculty. Probably both are truth. My belief, as I argue in the conclusion, is that out faculty promotes the progressive climate. 6. Evelyn Hooker, who received a Distinguished Contribution Award from the American Psychological Association in 1993 for her pioneering work in homosexuality, recently recounted the early barriers to doing scientific research. When she began her research in 1953, homosexuality was considered "a sin, a crime and a disease." The prevailing homophobia fueled by McCarthyism discouraged governmental research funding. University requirements that all research be conducted on campus made it impossible for her to recruit subjects until the university agreed to let her interview subjects privately at her home. For the first ten years, she worked virtually alone without collegial support such that none of her findings could be confirmed by other researchers. Evelyn Hooker, "Reflections of a 40-Year Exploration: A Scientific View on Homosexuality", 48 American Psychologist 450 (April, 1993). ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 230--------------------------------- 7. The favorable response to the tape was due in large part to the skillful presentation and group facilitation led by Professors Isabelle Gunning (Southwestern) and Susan J. Bryant (CUNY). 8. Some of the results tabulate to less than 68 because some respondents did not respond to every question. 9. The author made these demarcations into homosexual, bisexual and heterosexual for consistency and ease of presentation. The respondents might well describe themselves differently. 10. Schultz, supra, note 1 at 166. COMPARISON OF SCHOOLS THAT REPORT "OUT" GAY FACULTY WITH SCHOOLS THAT DO NOT "Out" No "Out" A Gay-Oriented Student Yes 30 13 Organization No 3 21 Curriculum that offers regularly Yes 14 13 taught courses that include issues of sexual orientation No 5 28 School promotional material that Yes 9 10 welcome gay and lesbian students No 4 21 A non-discrimination policy that Yes 26 5 includes sexual orientation No 16 8 TABLE ONE ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 231--------------------------------- CHI-SQUARE [PEARSON] CORRELATION BETWEEN REPORTED "OUT" GAY FACULTY AND NO "OUT" FACULTY Value Significance Sample Size A gay-oriented student 20.90 .00003 Meets organization A curriculum that offers regularly taught courses that include issues 20.83 .0003 Fails* of sexual orientation School promotional material that welcome gay and lesbian students 10.77 .03 Fails A non-discrimination policy that includes sexual orientation 14.35 .0062 Meets * 9.1 where 10 required. TABLE TWO COMPARISON OF GAY/LESBIAN/BISEXUAL RESPONDENTS WITH STRAIGHT RESPONDENTS Gay/Bi Sexual Straight Do you raise gay issues in Often or sometimes 7 14 courses you teach? Never or once/twice 5 36 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 232--------------------------------- Are you comfortable in More 9 18 asking openly gay colleagues about their Less 5 29 personal lives? How would you compare Greater 11 28 prejudices facing gay people to Afro-Latinos- Same or less 2 18 Jewish prejudice? Would you have disclosed this information [including Yes 5 40 your sexual orientation] without an assurance of Maybe or No 9 13 anonymity? TABLE THREE CHI-SQUARE [PEARSON] CORRELATION BETWEEN GAY/LESBIAN/BISEXUAL RESPONDENTS AND STRAIGHT RESPONDENTS Value Significance Sample Size Do you raise gay issues in 8.30 .016 Fails course you teach? Are you comfortable in asking 3.04 .08 Fails openly gay colleagues about their personal life? How would you compare .88 .35 Fails prejudice facing gay people to ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 233--------------------------------- Afro-Latino-Jewish prejudice? Would you have disclosed this 9.18 .06 Meets information [including your sexual orientation] without assurance of anonymity? TABLE FOUR COMPARISON OF '85, '87, AND '90 AALS STUDIES WITH '92 STUDY Student Organization Courses Non- Discrimination '85 '87 '90 '92 | '85 '87 '90 '92 | '85 '87 '90 '92 Yes 23 37 56 42 7 10 36 21 23 36 95 40 % Yes 28 34 48 63 11 9 31 48 36 34 80 75 No 41 72 61 25 57 98 80 23 41 71 24 13 No 87 44 41 1 87 45 42 24 87 46 39 15 Response (don't know) ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 234--------------------------------- Totals151 153 158 68 151 153 158 68 151 153 158 68 TABLE FIVE QUEER L Brad Sears FALL TERM I. WIGSTOCK '94 I woke up before anyone else in the apartment on Labor Day 1992. I lifted myself over the other boys lying next to me and crept into the kitchen. It was 7:00 am and I had a couple of hours to prepare. I pulled out the Cound et. al. Civil Procedure textbook bound in leatherette and began pouring over the half page of Capron v. Van Noorden. I paced myself. I read the case over a couple of times and took a shower. I worked though the Notes and Questions and then shaved my legs, underarms, and chest. I read the Gilbert's case summary and then put on my base, lipstick, and false eyelashes. I read though the text of the case once more and then slipped into a lycra dress covered with thousands of bright pink sequins, wrapped a white feather headdress around my hair, and strapped on my heels. No earrings; no purse. I was keeping it simple. I put away my casebook and focused on primping. By this time, the other boys had gotten up and dressed and we marched out to the corner of 1st and 78th for a few photo ops lounging across the hoods of expensive sports cars. Bob was decked out in dark glasses, diamonds, a white one-piece, and a towel wrapped around his head a la Esther Williams. Charlie presented the best of Staten Island with a leather mini and an enormous wig of teased curls. We headed downtown to Thompkins Square Park and were an instant hit at Wigstock. Ru Paul had brought hundreds of straights to the annual event, providing every amateur in full drag with an eager and ignorant audience dying to take our pictures. We indulged ourselves, striking poses and camping it up with the other drag queens for a day. My dress sparkled a thousand pink lights under the brilliance of the sun. The day was only stained by our heavy makeup smearing away in the last of the summer heat. The alarm clock rang at 7:00 am the next morning. The exhaustion of three hours of sleep after a crazed midnight drive from New York to Boston and a terrific hanger over from a half a dozen gin and tonics kept me chained to the bed. I dragged myself awake and through Capron one more time. By 7:50 am I was sitting in my assigned seat, holding my head in my hands, waiting for Civil Procedure class to begin. Five minutes into the class I began to wonder if the man down in front was the nation's most famous Civil Procedure professor and whether the class was even Civil Procedure. I had no real way to identify either. The lecture sounded less and less like Civil Procedure, but who really knew? The 2L next to me laughed when I asked if I was in the right room. She explained to me the difference between Langdell North and Langdell North-Middle. I spoiled my attempt at sliding discretely out of the classroom by swiping over a cup of coffee on the desk behind me with my bulging backpack. Expletives and daggered looks drove me from the room. I fled the scowling upperclassmen and into the next arena of petrified one-Ls who had their eyes fixed on the screeching professor. I was awestruck. My Civil Procedure professor out did any drag queen that I had seen the day before. His voice covered several octaves in a sentence, sometimes in a single word. Stuffed into a 1970's pin-stripped three piece suit with ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 235--------------------------------- high-water pants and bright red tie, he strutted back and forth like a little bantam rooster. Even from the back of the classroom, I could see his orange complexion was caused by heavy stage makeup that ended just above his adam's apple. (Later I would recognize the makeup as a sign that he had his Good Morning America gig that day.) The professor's vitality leapt out from the uniform blandness of my classmates. The lecture hall was a numbing mass of white men with brown hair and brown eyes dressed in khakis and button down chambray shirts. Of course, women and a few minority students were sprinkled in here and there, but I was momentarily stunned by the awesome spectacle of WASPy male straightness. My throat went dry and my stomach tightened. As I began to search for my seat in this room, the professor stopped talking, pursed his thin lips together and stared. The entire class then turned to rest its disapproving gaze on me. Under the heavy mantle of their silence, I found my seat -- fortunately located at the end of one of the back rows. Only after I had my casebook open in front of me did the professor resume barking out his introductory lecture. I blushed a bright pink. II. GETTING IN The week before I had cried for the first time in years as I drove the U-Haul from New York City to Cambridge. My journey to Harvard Law School that year had lacked anticipation. There had been no joy in finding out that I had been accepted to The Law School. My sister had called in January to inform me in the same run-on sentence that I had been accepted at Harvard Law School and that she had told my mother that I was gay. My mother declared it the worst day in her life and stopped talking to my sister civilly and to me altogether for the next four months. My father and mother, devout Southern Baptists, left for a missionary trip to Kenya and I faced the decision on which law school to go to, or whether to go at all, knowing that I couldn't rely on them for financial help. Moreover, their income and lack of cooperation would mean that I would be given a financial aid package that was all loans and no grants. I came to Cambridge in February to talk to Harvard's Financial Aid Director about my situation and whether under the circumstance I could be given independent status. The Director was a cross between The Beverly Hillbillies' Ms. Jane and Martha Stewart. She oozed a saccharine sympathy in her crisp blazer softened with a loosely tied Hermes scarf. Of course she understood "my special situation" but what if "everyone started claiming their parents had stopped talking to them." I could take out the full amount in loans and I would have to get a letter from my parents describing the circumstance and detailing their financial situation to do even that. She didn't seem to understand the problem with asking my parents, who were not talking to me, to write a letter describing how they were not talking to me. The Director's letter turned out to be a watershed in my relationship with my parents. I can't believe that I had the nerve to ask them to write such a letter, but my request triggered their Christian hypocrisy. My mother called me the day she received it. She said she didn't want to discuss "what we both knew was going on" and that I could never let my father know. This was quite a surprise since I had thought that he had known for several months. My father, the same one who didn't know, had somehow said that if he did know that he would not offer a cent of support. My mother made her statements, and then said good-bye. No explanations; no apologies. Her assurances didn't significantly help in my decision on where to go to law school. I decided I would have to make my choice with the presumption that I would end up paying the total bill. I wanted to go to school in New York City for two reasons. First, I knew that I would end up living there after I graduated and I wanted to set up a home. I had never felt comfortable in my parent's house. After leaving Missouri to go to college at Yale, I only returned once or at most twice a year for holidays. I had been living in two apartments and two cities every year for the past four years. I wanted to live in New York City because I had worked there for the past three summers. I had a established a circle of friends and was familiar with the city and its gay community. I raised these concerns with everyone I talked to about my decision on where to go to law school. They were unanimous in advising me to go to Harvard because of its reputation, even though they thought I'd hate it. In the end, I made the decision to go, and headed to New York City for a final summer. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 236--------------------------------- By the time I left for Cambridge, I had established a very comfortable support system in the city. I cried because if what I had heard turned out to be half true, Harvard Law School would not offer anything close. The first year of law school is a tough row to hoe for anyone. For me, the normal rigors were entangled with the difficult transition of moving from a comfortable life in a queer community, to a community in which I was an isolated queer. I came out early on in the year by wearing gay pride and ACT -UP tee-shirts. Although I had only been brought out to my parents with the assistance of my sister, I had been out on the Yale campus, and active in gay and AIDS politics for several years. Being gay in relation to straight people was far different as an undergraduate at Yale College then as a one-L at Harvard, however. I remember the way I could feel the pink triangle on my jacket when I had first started wearing it as a sophomore in college. It burned through my clothes and I noticed every eye that flicked towards it and then quickly away. I felt the same way the first days I wore those tee-shirts in my section. Don't Hide Your Pride (with a nude man). Act Up (a fake red blood spot dripping down the front). Health Care Is A Right (a red cross). YALE BGLAD (a large pink triangle). Maybe it was because that with their bold colors and slogans they just stood out so much in that sea of khaki and baby blue chambray. In part, I imagine it had to do with the way everyone feels in the spotlight in a One-L classroom. I felt other people's eyes on me again. I felt uneasy. I kept on wearing the shirts, though. Especially on days I hadn't done the reading. None of my professors wanted to look at those large pink triangles long enough to impose their inquisition. Although I came out during One-L orientation, my classmates just didn't seem to get it. At the first class wide party, a beautiful woman with a full head of dark curls strode across the auditorium and introduced herself. She seemed so aggressively friendly I wasn't sure what to make of it. At first I wrote it off as another example of the healthy self-confidence of my fellow students. When she invited me to drop by her house that night I knew what was up. Later in the year we could laugh about her attempts to pick me up and her annoyance when I showed up at her house with three other gay boys dressed in ribbed shirts and hot pants. By February, when a woman in my section asked me if I was dating another woman in the section, however, coming out had become tedious. This inquiring woman had met the man I was dating first semester and had been sitting right next to me in Contracts when he delivered flowers and a kiss on my birthday. No matter what I wore or said, some students couldn't seem to understand that I wasn't just articulating some wacky political position; that I actually dated and slept with men. The straight students were never overtly homophobic. Once it got back to me that someone had repeatedly called me a "fucking faggot" during a phone conversation. Not much compared to the homophobic cartoons and posters that had been plastered on my dorm room door in college. But for the most part, they kept all of that to themselves. My unease came mainly from being surrounded by this heterosexual world. At first I didn't notice my isolation and their heterosexism. Like a glacier it engulfed me, moving at an unnoticeable pace and with overwhelming power. Most of the law school students were conservative and the majority appeared to have had no exposure to queers. In the rare instances when issues of race, gender, or sexual orientation came up in discussion, I was amazed with their lack of familiarity with the issues and the terms of the discourse. Ideas like the social construction of identity, the power of symbols and stereotypical representations, and forms of systemic discrimination were unknown to these students. They could talk about "those people" and "some of my best friends" who were black or gay with out a trace of bitter irony. Somehow they had gone through four years of liberal education and missed the hottest issues on college campuses. Maybe the majority of students at Yale had been the same, but I had been able to avoid them by enrolling in classes that they just wouldn't take and by keeping them out of my social life. The section system of law school prevented that type of self-selection. The traditional structure of law school placed the full of eye of the heterosexual community upon me. I was seated in a room with the same 155 randomly selected Harvard Law School students day after day, all year long. The classrooms were circular theaters where we sat for ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 237--------------------------------- three hours a day watching each other with a meticulous scrutiny heightened by competition and fear. I had to listen to what they said and respond to them. Professors who had no control of the Socratic method forced me to perform in front of them by regurgitating pesky, obscure facts. During the high-pressure atmosphere of the first year at Harvard Law School, there was little time or energy left over to get away from the law school or the other law students. We ate together in the cafeteria and read together in the library. The community eye was most effectively enforced by the coercive pressure on everyone to join small cells euphemistically called "study groups" that ensured that everyone could have detailed information about people's brains, study habits, schedules, private lives and eventually grades. The study groups provided the main source of information for the constant rounds of gossip. They knew me and I knew them. Privacy, something queers use to shield themselves from the homophobia of foes, friends, and family, was stripped from everyone by first year law school culture. I had experienced this type of oppressive community oversight before, in the gossipy rural high-schools and Baptist Churches of my hometown Grain Valley, Missouri, population 909. The law school community was slightly larger but organized much more efficiently. Some of the straight students were very friendly and made considerable efforts. I, in turn, was expected to gratefully warm to their liberal overtures. On the One-L beer cruise at the close of first-year orientation, one of the O-group leaders chatted with me about how she loved "gay music" like Depeche Mode and Erasure. She apologized for the rock music being played on the boat and promised she'd take me to a gay bar (with some of her straight friends) at some point. Later in the semester, I was seated by myself in the Harkness Cafeteria when I was suddenly surrounded by some of the more conservative voices in my section. I kept eating and reading the paper without really even acknowledging that they had arrived. One of them brought up Amendment Two in Colorado and then firmly denounced it as discriminatory. No one responded and he looked at me expectantly. Silence for a few minutes. Another student brought up the opposition to New York City's Rainbow Curriculum and then denounced it. Silence. Again they looked at me expectantly. More silence. I played possum and kept reading my paper. They quickly ate and left. I suppose I was rather surly, but I just wasn't up for the show. My interactions with straights at Harvard probably wouldn't have been so bad except for the scarcity of queers in the first-year class and at the law school in general. I had met the type of gays that were at the law school before, but they had either been much younger or older. I wasn't used to gays my own ages being so closeted and conservative. I was the only person that was out in the first-year class although there were over a dozen gay men and one lesbian who eventually made themselves known to me. There were only a handful of students in the entire law school who were out. There were taunting rumors, however, about 3Ls who had been very out and politically active but who now only dropped into the school for the occasional class. I never caught even a glimpse of these elusive queers during my first semester. As an undergraduate, the Yale Gay, Lesbian, and Bisexual Cooperative had been the major source of my friends and extracurricular involvement. The students in the Yale Coop, who wore their pink triangles religiously, had provided me with dynamic role models. From afar, they coaxed me from the depths of my Midwestern, Southern Baptist closet. Once I came out and joined them, we constantly pushed each other to new (and sometimes ridiculous) levels of outness and activism. COGBLLI, the law school's lesbian and gay organization, had an average attendance of five members, which wasn't too bad because the group only met twice my first year. No first-years besides me ever attended. COGBLLI, which stood for the Committee on Gay, Bisexual, and Lesbian Legal Issues, didn't provided me with a support group and left me in the position of being ahead of the pack in activism and outness. This was not a position I felt strong enough to handle, especially with the pressures of my family and the first-year of law school. The introductory meeting of COGBLLI collapsed into a fight between the two past co-chairs. The former lesbian co-chair wanted the organization to give $500, a third of ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 238--------------------------------- COGBLLI's annual budget, to the Women's Law Students Association. The former gay male co-chair, my roommate and her best friend, didn't want to give the money. They exchanged some choice words about several of their personal altercations and then the lesbian made two persuasive arguments COGBLLI was sexist and wasn't going to do anything this year anyway. Her motion to allocate the money passed with the help of the three non-member women she had brought with her . The next order of business was to elect the new co-chairs for the year. Although this usually was done the previous spring, it seems that no one wanted to take over the organization. This election had been fixed this time to prevent such a demoralizing result. A new co-chair (despite the dictates of gender-parity they could only come up with one gay male taker) had already been cajoled into taking the position earlier in the week. The old co-chairs presented him and he said how much he was going to enjoy fulfilling the responsibilities of the position. Even though he was unopposed, he wanted everyone to know that he wouldn't have accepted the position unless he was committed to making the organization work. The old co-chairs were in the process of adjourning the meeting when I interrupted. I asked the new co-chair just what exactly he intended the organization to do that year. He told me that he had just explained that and the meeting was over. It was the last COGBLLI meeting of the semester. Afterwards, the gay men in attendance retired to one of Cambridge's two gay hangouts Campus. The bar was filled with preppy, fresh-scrubbed collegiate gays who seemed to exist in a netherland unaffected by the AIDS epidemic, Gay Liberation, or fashion. At the Campus I was re-introduced to Reginald Cromwell, a 2L who was the grand dame of the main gay scene at Harvard Law School. Reginald was the son of Clarence Cromwell, one of George Bush's Cabinet members. Reginald was Republican, ultra-conservative and ultra-closeted. I had met him during an event for prospective students the previous Spring because a friend of mine had mentioned that he was at the law school. Reginald had quite a reputation in the New York City night life where he had spent some time as a party promoter. Although I had never seen Reginald before, I recognized him instantly when I met him for the first time. Not knowing that he was in the closet, I had gone up and introduced myself and mentioned our common friend while he was talking to a group of other perspectives. He looked at me in horror, pressed a piece of paper into my hand, and told me to give him a call later that afternoon. The paper turned out to be a cream business card that had been inscribed with the crimson letters "Reginald C. Cromwell, Harvard Law School." Impressive; but reading the writing I hadn't bothered to call. Reginald appeared genuinely happy to see me. He pumped my hand and looked at me intently with his father's large bug eyes. I was slightly intrigued, especially since the other gays had clued me in to his familial connections. I had almost been kicked out of college for shouting down a speech his father tried to give at Yale. Clarence Cromwell had championed a host of homophobic and AIDS-phobic policies including suppressing a government report that concluded that gay youth were seven times more likely to commit suicide. I got some sort of sick pleasure with flirting with Secretary Cromwell's son at a gay bar. Without a hint of irony, Reginald mapped out the gay scene at the Law School. There were the "horribles" who attend the COGBLLI meetings and there were the "beautiful people" who did not. The horribles were out and (therefore?) ugly. The beautiful people didn't feel it was necessary to run around campus screaming there heads off. At this point, Reginald did an imitation of someone chanting the Queer Nation slogan "We're here! We're Queer! We're fabulous! Get used to it!" in a lisping falsetto that the most homophobic of comedians could not have mustered. I was appalled and amused, most particularly because Reginald was about as butch as Ru Paul in a tutu. For various reasons I kept my opinions to myself and Reginald, inferring that I had made some choice, invited me to brunch the following Sunday to meet the rest of his set. The Sunday brunch was a little Fire Island-in-training. These were tomorrow's GUPpies, ready to claim their stake to a wealthy gay social scene of Saint parties and summer shares. These gay 2Ls and 3Ls were wealthy, arguably handsome and in shape, and ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 239--------------------------------- decked out in Ralph Lauren's latest fall collection. Reginald greeted me at the door in an unusual black and white stripped umpire shirt and introduced me around. The main topic of conversation was universal praise for the new book "After the Ball." These gays praised its advice that the gay movement needed to clean up its act and become more palatable to Middle America. The students of course applied the message to those outrageous COGBLLI gays. I was truly scared. Here was a group of young gay men who were closeted not out of fear or insecurity, but because they thought it was the correct political strategy. The closet was beneficial to there careers and a way of pleasing mainstream America. So why not stick with it? Rather than respecting the courage of others who had come out, they imposed hyperbolic homophobic stereotypes, and ugliness, on that paltry group of slightly more active gays at the law school. The direction of the internalized homophobia outward covered their fear and justified their position, and gave them an offense with much currency against those who most threatened their closet. After two separate recommendations that I shut up until I'd read "After the Ball" (In truth, I'd read enough.), I left them munching on their bagels and kiwi slices. Stranded in this heterosexual, high-pressure community, I soon become all too familiar with loneliness. Walking down the paths that wind through the apocalyptic landscape of Harvard Law School , I could feel my body imploding in the vacuums of space created by the inconsistent architecture. Other students would pass by. Something about the way the rays of sunlight, the green of the grass, the video blue of the New England sky wrapped around the angles of the concrete and their shoulders would throw the entire scene into two dimensions. Flat, paper people walking towards me. I cutting through their world in three dimensions, wondering if they or I was really there. I wanted to ask anyone of them if they could see me there, but I so feared the chaos that might be caused by my extra-dimensional wake; so hoped that invisibility might furnish some escape. Then, suddenly, the compression would hit, flattening my body, squeezing matter and breath from me, forcing an audible gasp from my mouth. To recover I would look quickly down into my left hand. I would study the lines of the palm; slowly move my fingers; turn it over and back again. The world would be set aright. The sight of my hand would forge back some space of permission for my existence. It would remind me of all that it had done, the places it had been. My experience comforted me. Staring at my hand, the links of my difficult path became as clear and reassuring as the snarl of scar tissue, every ten-year-old stitch still visible, snaking down my wrist. Later in the Fall, I hooked up with ACT UP Boston and made several friends outside of the law school. The pace and pressures of law school made it difficult to keep up with them and I often went out to gay bars by myself when I thought I was going to implode in this crucible of straightness. I did eventually make friends at Harvard Law School. They tended to be women who agreed with my politics, rather than other gays. My friendships with straight women bothered me at times, sometimes justifiably so. I had rejected forming friendships with straight women in college out of the fear of becoming someone's insipid companion who dressed nice and was fun at parties. My new roommates at Harvard Law School were a constant reminder of the dysfunctional relationships that can form between gay men and straight women. Tim was a bitter gay male 3L who was a former co-chair of COGBLLI. He didn't interact with any of the other gays on campus and spent most of his time with Sally, my other 3L roommate who had been Tim's lover but now had a "regular boyfriend." Tim and Sally fought like an old married couple and my presence in their tight world was a constant annoyance, most likely because I witnessed their codependent madness. I feared ending up like Tim after three years at Harvard Law School. I learned that just because I shared coming out stories, campy jokes, and bar time with other gay males didn't mean we were cousins. The conservative politics of most of the gay males I met my first year made me uncomfortable and aggravated. The disjunction between their sexual identity and their politics made me realize that the later was more central to my identity and choice of friends. Although I missed living within my exclusive circle of activist dykes and fags at Yale and in the East Village of New York City, making ties with progressive straights reminded me of the breadth of the issues that were important to me and led me to critically reexamine the limits and biases of the gay politics that I had been ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 240--------------------------------- involved with in the past. III. IN THE HEAT OF PASSION I embarked on my first year distanced from family and old friends and with little feeling of connection to my fellow students. Sure, Reginald Cromwell would drop by my apartment every couple of days to chat but it just wasn't enough. I had told him about my protest against his father and had given him a fact sheet I had made detailing Secretary Cromwell's homophobic policies. Nothing could have made me more attractive to him. For lack of other options and because in spite of himself he was the gayest guy around, I hung with him from time to time. He slept over a couple of nights but I didn't have sex with him as a matter of principle. Rather than serving as a safety valve, my twisted relationship with Reginald was a metric of the pervasive straightness of the school. With no outlets and no one to talk to, I had to blow off steam somehow. It seemed only natural that it would happen first in the arena where the pressure was the greatest the classroom. It didn't come as a big surprise that issues of sexual orientation were not discussed in the classroom or that every question and point was framed from a heterosexual perspective. My four white male professors first semester weren't really concerned with introducing any other perspectives in the classroom. They never really said anything overtly homophobic, their social conservatism was so pronounced that if they thought about homosexuality they definitely weren't going to mention it in public. When one male student offered a point based on his experience living with a woman for several years during a discussion in Contracts class about pre-nuptial agreements, the professor thanked him for making such a personal statement that would open him up to such "disapproval" from other students. The professor then launched into a twenty minute monologue about the virtues and rewards of marriage that included the advice to "deny, deny, deny" if your wife ever accused you of being unfaithful. My Property professor created such interesting hypotheticals as whether a store in a shopping mall that attracted "the type of people who have tattoos" could be considered a nuisance. It wasn't too hard to guess their feelings about queers. My attempts to assert some gayness into the classroom started rather subtly. In discussing International Shoe with my Civil Procedure professor I offered a few campy comments from my experience selling ladies shoes in a high fashion boutique in Kansas City. My Civil Procedure professor met me line by line, camp by camp, leaving the class in stitches. A few weeks later I really cracked in Criminal Law. My Criminal Law professor was the only professor who introduced materials about gay people in his class. Unfortunately, they were all negative. In a discussion about excuses for criminal behavior he contrasted a Mexican-American Harvard College student who had robbed a number of convenience stores with Jeffrey Dahmer, the serial killer that had abducted, raped, and then eaten a number of gay men of color . The Mexican-American student was supposed to represent a criminal who we could sympathize with because of the class and race pressures on him at Harvard. Dahmer was used in the discussion to represent the criminal who acts solely for his own sick motivations. As the conversation progressed, I became more and more infuriated with the depiction of Dahmer. Finally, I raised my hand and burst out that it was odd to depict Dahmer, a gay male, as free from social oppression. I then detailed the types of isolation and discrimination that Dahmer might have felt and how his crimes could be seen as a sick manifestation of his isolation and need to connect with others. I regretted the comment as soon as I made it. I had just stood up for and obviously identified with Jeffrey Dahmer! (Now I knew just how isolated I felt.) My horror was cut slightly when my Criminal Law professor apologized for his lack of sensitivity to Dahmer's experience as a gay male and claimed to not have known that Dahmer or his victims were gay. I was incredulous of this explanation since the Dahmer story had been in every news media from the New York Times to Oprah. I believed his ignorance, however, when several students thanked me for my comments after class and said that they too were unaware of the sexual dimension of Dahmer and his crimes. Several weeks later I made a better showing. My anger with the class materials this ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 241--------------------------------- time started when I was reading and outlining my Criminal Law assignment the night before class. My Criminal Law professor had assigned the readings from the section in Robinson's Fundamentals of Criminal Law dealing with graded homicide. The cases assigned were State v. Gounagias, State v. Ott, People v. Connley and a "problem" that was a transcript from People v. White. Gounagias dealt with whether a first degree murder charge should be mitigated to manslaughter because the murderer had killed a man who had anal sex with him. The murderer claimed he engaged in the sex because he had been rendered "helpless" by several glasses of beer. He murdered his partner three weeks later because the man had told others of their encounter. The opinion referred to their sex as "the unmentionable crime" and held that the murder charge would have been mitigated if committed right after the sex, or when the murderer first learned that his victim was spreading the word. That he waited until the man teased him three weeks later, the court thought, showed that the murder was not committed in the "heat of passion." Gounagias appears to be placed in the materials to show how courts can apply the reasonable man standard (would the reasonable man have been provoked to murder under the circumstances) in ways that contradict the intuitions of the student. The student is drawn to question the judges formal distinction between "sudden" and "cumulative" anger given the "unmentionable" affront done to the murderer. State v. Ott and People v. Connley explored the development of the "heat of passion" defense into the more modern "extreme emotional disturbance" defense. Both cases deal with unemployed men who had killed their employed female lovers after these women had rejected them and moved on to another relationship. Again the materials were edited and complied in such a way as to provoke sympathy for the male murderer and to underscore the formalism of the doctrinal requirements of the mitigation defense. The final and non-contiguous reading assigned by my Criminal Law professor was a transcript from People v. White. The excerpted transcript was of the confession of Daniel White for the murder of Harvey Milk, one of the nation's most well-known and respected gay civil rights leader. The transcript and the questions that followed gave no indication of Milk's politics or sexual orientation. Rather, the excerpt indicated that White was merely upset about losing his job with the San Francisco government and had killed Milk because he had though that Milk had plotted to have him removed. The questions afterwards asked whether the murder should have been mitigated to manslaughter under the heat of passion defense. The notes then brought up the infamous " twinkie defense" used at White's trial (a high sugar diet made him to do it) and asked whether and under what conditions this defense was relevant. I skimmed through the readings twice and then looked at my briefs. I started writing furiously -- not notes but analysis. I was pissed for two reasons First, all of the cases seemed to discuss the heat of passion defense with fact patterns that dealt with a man who had his masculinity insulted. The murderers were men who had their sexuality challenged by other men who either had slept with them or with "their women." All of the men were out of work and killing either a woman who had left them, or someone who had taken their job. The cases seemed to be designed to draw the reader into the underlying legitimacy of the defense by creating compelling fact situations for male readers who might share a similar sensitivity about their masculinity. Of course you would off some fag who had slept with you and then told the neighbors. Of course you would off your woman if she started sleeping around with some other guy. While this behavior can't (unfortunately) be condoned it shouldn't be treated as murder. By finding a common ground to discuss the defense in general, the case and text could then focus on particular doctrinal points such as how immediate the provocation and how objective the reasonable man standard must be. The lesson of the casebook, and the perhaps the legitimacy of the mitigation defense in general, seemed to be premised on the reader buying into the legitimacy of the "natural," and therefor excusable, rage men feel when their masculinity is insulted. In short, women who claim their economic and sexual independence and fags who kiss and tell don't deserve the full protection of the law. What bothered me even more was the unusual placement of the White confession at the end of the readings. The confession provided the weakest facts for granting the mitigation ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 242--------------------------------- to manslaughter until you read the notes, which most one-Ls do. The revealed information about the "twinkie defense" (tah-dahhh!) was then supposed to cause the reader to re-examine their assessment of whether the defense should have been granted. It upset me that the two gay men that had been brought up so far in Criminal Law were the alleged homosexual rapist who had been killed by Gouganis and Jeffrey Dahmer. When arguably the most well-respected crusader in the gay rights movement was discussed in the text his sexual orientation was omitted. It seems relevant to a discussion of Harvey Milk's murder that he was a gay man. It seems very relevant to a discussion of the mental state and motives of the murderer. To fail to mention that fact, and to go on to discuss the "twinkie" defense, incredibly perverts the circumstances of the case. The erasure of Milk's sexuality eliminated all positive representation of gays from the class materials and changed a case about a homophobic bias crime into a lesson that complicated the heat of passion defense by adding a new subjective element a perpetrator's anger caused not by provocation but by a polluted biochemistry. I wrote out my thoughts furiously and prepared for the next day of class. During the discussion of the heat of passion defense I let loose with a case by case analysis of how masculinity was what was really being catered to with this type of defense. Although the White case fit into my analysis even better with the fact that Milk was gay, I purposely excluded it from my little speech. My Criminal Law professor looked a little stunned when I finished and just kept moving the conversation in the direction he had intended it to go. In the last five minutes of the class he got to the White case and called on a couple of students to argue the issues by assuming the rolls of the prosecutor and White's defense attorney. The student who was to prosecute had not done the reading and passed. The next student also passed. The professor then asked the class at large if anyone knew what they would say if they were prosecuting White. I raised my hand, was called on, and exploded "If I was the prosecutor I would bring up the facts left out of the confession," I began, my voice trembling. "If I was the prosecutor I would say that Harvey Milk was gay and one of the most well-respected leaders in the San Francisco community." "I would point out that White didn't just murder him but shot him once through his mid-section, then twice more into his chest. When Milk fell to the ground, White shot him through the back of the head splattering the office with blood. Then White put the muzzle of his gun against Harvey Milk's skull and blew out the remainder of his brains." "If I was the prosecutor I would mention that the police officers who took White's confession greeted him like a conquering hero and later wore tee-shirts that read "Free Dan White" and raised $100,000 for his defense." "If I was the prosecutor I would mention that White was a former police officer and that this so-called confession had been contrived by the police officers to serve as a solid defense for White." "If I was teaching this class I would mention that over 40,000 people marched in a candlelight vigil the night after Milk's death." "If I was teaching this class I would mention that the actual prosecution repeatedly mishandled the case and that when this so-called confession was played in court, four of the jurors wept out of sympathy for White." "If I was teaching this class I would point out that a jury consisting of no gays or minorities did mitigate this homophobic murder to manslaughter and that thousands of gays rioted violently in the streets after the decision was announced." "If I was teaching this class I wouldn't included negative representations of gay men such as Jeffrey Dahmer and then erase the sexual identity of a hero like Harvey Milk." I just couldn't help myself. "As a gay male," I indulged, " I am extremely disturbed by the way this material has been presented." I stopped my impassioned presentation and caught my breath. A good portion of the class broke out into several seconds of applause. The professor paused for a moment and then asked in the voice of the reasonable man, "But how would you ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 243--------------------------------- respond to the twinkie defense?" I was only momentarily stunned. "I wouldn't legitimate it with a response," I barked. "Don't you get it? It's a homophobic joke. He killed a faggot and therefore he has a 'twinkie' defense. Faggot. Twinkie. It 's a homophobic joke. That's why it has so much currency." "We'll pick this up tomorrow." The professor dismissed the class. Several dozen students swarmed around me and congratulated me on my comments in class. It was somewhat embarrassing because I sat in the front row and the professor was standing only a few feet away. Someone said that they were so glad to finally hear someone say something in class with conviction. I came into contact with many of my silent fellow travelers that day but the class atmosphere was hardly changed. As a matter of fact, at the beginning of the very next class I apologized for my unprofessional dismissal of the "Twinkie" defense and explained how I would respond to it in a more reasonable tone. The professor was pleased. Although my heat of passion comments were the most dramatic performance that I gave first semester, I continued to point out omissions and mis-representations in the texts and in class discussions. I'm not sure that I was well-served by my vigilance. Classroom comments seemed to be the only way in which people could understood my sexuality and undermined any academic credibility that I had. At the end of the year, students who had felt that they had come to know me would jokingly chide that all I ever spoke about in class were issues dealing with AIDS or gays. Although I did bring up these issues from time to time, they definitely did not make up the majority of my class comments. This response from other students sometimes made me clam up on topics I very much would have liked to discuss. When our Criminal Law class discussed Bowers v. Hardwick, for example, I didn't say anything because I felt several glances my way in anticipation of my comments. I felt so put on to say something that I couldn't say anything. It would seem like I was engaging in a piece of over-determined theater rather than making a substantive point. Several of my fellow students asked about my silence after class. Professors also began to react to my queerness. Again there were no simple statements, only quite exclusions that limited any real access to their aid and mentorship. My Criminal Law professor responded to my outbursts by giving me a patronizing deference. He would call on me with his twisted face of feigned interest and confusion seconds after my hand went up in the air. One day, I approached him after class to give him an article from the queer news magazine, QW, that was relevant to several of our class discussions. The article gave a sympathetic description of a lesbian prostitute who had claimed an insanity defense to the charges of murdering seven of her tricks. She claimed that all of the men she had murdered had raped her. Without even looking at the article or waiting for me to describe it, my Criminal Law professor stuttered out that he would be sure to included it in his materials the following year. Professors' discomfort with me most often manifested itself outside of the classroom. Having lunch or coffee with professors is a common practice of eager 1Ls trying to make it at Harvard Law School. Swept up in the law school fervor, I joined my eager study group in setting up appointments with my first semester professors. The first lunch was with my Criminal Law professor. He, of course, agreed with everything I said without responding and tried to keep the conversation focused on recent movies. A lunch with my Contracts professor seemed to go well until we got to dessert. We had ignored each other throughout the meal and he had engaged in conversation with the other five students. Then he gave me his full attention and described to me a Saturday Night Live skit that did a send-up of an imaginary gay beer commercial. With the purchase of their beer, the men in the commercial find themselves in a pool surrounded by muscular preening men rather than busty blondes in bikinis. I wasn't sure what my reaction was supposed to be as he stared at me intently waiting for a response. He kept adding to his description until finally I realized that he wasn't pointing out that the humor of the skit was rooted in homophobia, but was waiting for me to laugh. I smiled weakly. My study group felt embarrassed for both of us. The highlight of my social interaction with professors was having coffee with two ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 244--------------------------------- other students and my Civil Procedure professor. Keeping with his blunt Socratic method, the professor quizzed all of us on what we were doing for the summer. When each of the other students told him their places of summer employment he went into a long narrative about the merits of the job and the former students of his that had worked there. When my turn finally came, I told him that I was working for the ACLU Lesbian and Gay Rights Project. Abruptly, the Civil Procedure professor had to get back to work and we were whisked out of the office by his assistant. That was my final outing with a professor. Not becoming pals with my professors didn't really hurt me on a personal level, although some of there reactions and comments surprised me. I had never been one for hanging with my professors. My inability to establish these relations did have very real academic and professional consequences, however. Although rumor has it that there is a policy of blind grading during the first year, professors' support is essential in securing job and judicial clerkship recommendations. In addition, research positions with professors are lucrative opportunities to gain experience, a mentor, and an "in" into legal academia. At the end of my first year I was at a complete loss on who to ask to write recommendations for my judicial clerkship applications. Eventually I asked my Criminal Law professor because I thought he wouldn't dare say no or write something negative. Although I applied to several of my professors and to other professors on the faculty for research assistant positions, I never received so much as a follow-up phone call in response to my cover letter and resume that detailed my experience with gay activism and civil rights. This didn't really start to bother me until I noticed students with little or no experience in the topic areas getting plumb jobs. The professors I applied to for research positions were all apparent heterosexuals. I didn't even bother to apply with the closeted faculty members. I would have been totally uncomfortable interacting with them and having to either help maintain or pretend to believe in their supposed heterosexuality. I didn't have any interaction with the closeted professors except for Matt Green. Mike, a man I had dated the summer before in New York City, had graduated with Green. Mike thought that Green was out on campus, because Professor Green had told him this, and suggested that I look him up when I got on campus. When I got to the law school, other gay students were shocked that I had heard that Green was out of the closet. As it turns out, Green and a couple of the other gay professors lead tragic double lives. While they were officially closeted on campus, they would go to the series of fabulous gay parties that Reginald Cromwell and the After-the-Ball crew would throw. They were "out" to the closeted "beautiful people" and like them, mocked the students who were out on campus. I would have liked to ignore Green but he unfortunately couldn't do the same with me. He was constantly giving reports to Mike about my antics on campus. He liked to tell other students about how "ambitious" I was. For the closeted students, he fabricated an elaborate tale of how I had stolen Mike, his law school sweet heart, away from him. (Mike had actually met his lover of ten years, who had only recently died of AIDS, during his first year of law school.) I wanted to confront Green about this tale but never got up the nerve. Instead, I passive-aggressively invited him to speak at a panel discussion about being out in the law at the beginning of the year. He said he was going to be out of town that particular Thursday and offered his regrets. I was frequently disappointed that the gay professors on campus were a source of frustration rather than guidance. IV. HOLIDAY PRESSURES As the semester progressed, I began to feel more and more alienated from the other students and the law school. I stopped going to class and attending my crazed study-group sessions. My relations with friends back in New York became more and more distant. I broke off my crazy relationship with Reginald after asking Michelangelo Signornile if he had any interest in outing him before the 1992 Presidential election. I dressed up in drag for Halloween in the same pink dress but didn't bother to shave my chest or wear makeup. In October, I fell into a completely co-dependant relationship with a man who had dropped out of law school the year before and now worked as a paralegal for GLADD, Boston's non-profit gay rights organization. This relationship added to, rather than relived, ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 245--------------------------------- my loneliness. He constantly put pressure on me to spend time with him. Of course, I was getting more and more frazzled about my school work. Periodic phone calls from my parents reminded me that at any moment my father who knew but didn't know about my sexual orientation could pull the financial rug out from under my feet. On top of everything else, Sally and Tim began to bombard me with post-its that scolded me for any sign of my existence that could be found in their cramped apartment. I became more and more depressed and took to spending my days studying in the Boston Public Library. I read every page assigned to me several times and took copious notes. I clocked in eight hours of studying a day. In part I was acting just like a crazy, competitive one-L who didn't know how to study the law and over-compensated. Mainly, however, I was trying to keep myself busy in order to keep my mind off my environment and my depression. Other students began to ask me what wrong. Of course they noticed my unraveling, and that made it all the worse. When I started walking on the edge of busy streets and wishing a car would just swipe me out of my misery, I decided to seek psychiatric help. To get free care, I had to get a referral from the staff at the Law School's health services. This required getting a lecture from Dr. Walter about AIDS and hepatitis B and then being cross-examined by the staff psychiatrist about every part of my life. Finally, they referred me to a gay Harvard medical student who worked at Cambridge Community Hospital. After three sessions I realized that our discussions were going nowhere. His position as a closeted gay professional blocked any meaningful discussion. Instead of discussing what was bothering me he asked me pesky questions about protests I had been involved in and about dressing up in drag. My positions on being out and active fascinated him. Like the staff psychiatrist, he seemed to have unprofessional, voyeuristic interest in finding out about my "lifestyle" regardless of its relation to my problems. When all of his curiosities were satisfied and he started to suggest that maybe I was putting to much pressure on myself by being out, I cut off our engagement. I felt even more alone and at a loss about what to about it. Suddenly I decided that what I had to do was to confront my father about my sexual orientation. Coming out to him directly would relieve the pressure of his "not knowing" and the anxiety about my financial security. If he knew about me, I would know soon enough about my financial situation. Unlike like school, these were two areas in my life that I could exercise some control over. I rationalized to myself that unless I risked my legal education by confronting my father, I could never urge others to take the risks of coming out. If I waited until I was out of school, I would be coming out in the very privileged position of a Harvard Law School graduate. I had to be willing to risk coming out when it might mean that I might lose something. Looking back, I suspect that I decided to come out at this time because I secretly hoped that my father would cut me off and I'd have a golden-plated excuse for leaving school. For whatever reason, I flew home at Thanksgiving prepared to have the discussion. I kept myself hidden in my studies all weekend. Each night, I would lay in my bed trembling and sweating, racked by the final withdrawal from my dependency on the closet and heterosexual identity. I didn't get up the nerve until my parents were leaving the airport. I ran out to the parking garage and got their attention. I started sobbing uncontrollably and then told both my father and mother that I was gay as if neither one had any prior indication. My mother had requested this approach. They could really only respond to this drama by getting me to calm down and back on the plane. I was flying to Boston moments later wondering if my declaration had any impact. It did. There was a message on my machine from my father waiting when I arrived at my apartment. He had already talked with Tim and Sally about how distraught he was. I called him and he started crying and then yelling. His phone calls came frequently during the three weeks between Thanksgiving and Christmas break. Although they took my mind off school, they exhausted me emotionally. He launched a full-scale campaign to try to reform me. He checked books out from the local library written by religious fundamentalists who had created programs to salvage backsliding homosexuals. He suggested that I drop out of school to attend one of their programs. He hired a Southern Baptist preacher to start calling me to give me "counseling." (Eventually, this preacher came out to me and now calls me when the ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 246--------------------------------- pressure of his life; i.e. wife, two kids, head of a large black church, and tricks with other ministers get to be too much). My father wasn't about to cut me off. I became the lost soul the Lord needed him to save. Only through active engagement could he do the job. The financial ties were all the tighter. I had to fly home to Missouri at Christmas. He started working on me the moment I got in the car. I came loaded with a suitcase filled with my textbooks, notebooks, computer, and printer. I tried to barricade myself in the basement behind my work. I typed a 100 page Contract's outline. My father kept interrupting my work. He pulled out the usual religious right fare. I was an "abomination," "the Devil's Spawn," and "going to hell" if I didn't change my ways. I launched back all of my well-practiced responses to his accusations, Biblical and otherwise. The more articulate and rationale my responses, the more he became convinced that I had been abducted and brainwashed by a militant gay Gestapo. Thoroughly wrecked by the day after Christmas, I flew back to Cambridge a week early. I continued my studying for first semester finals which were scheduled for mid-January. I really only got around to studying for Contracts, my first exam which was closed-book. The professor had asked us to memorize the Restatement of Contracts by section number. I rote memorized the Restatement and my 100 page outline and then went in and bombed the test. I emerged an exhausted and thoroughly drained shell. After weeks of caring so much about school and my parents, I gave up. Instead of studying that night, I went out to a gay bar in Boston. I went alone and danced by myself. Often, being in a gay bar had been a demoralizing experience for me. Standing there with all those other men, dancing, cruising--the need, denial, and self-destruction as palpable as the stench of liquor and the clouds of cigarette smoke. Like many activists, I had viewed the bar scene as a tragic result of societal oppression filled with gays who had yet to be liberated "Out of the bars, into the streets," we chanted in our marches. The manner in which I had seen these gays as passive and useless, in contrast with my activism, reproduced the same type of thinking and imagery that many straights have about gays; that Reginald and his set had about the members of COGBLLI. That night, the seedy gay bar I walked into took on new meaning. All of those gay men dancing, just dancing, in the face of the world outside seemed like a courageous act of rebellion, showed an incredible endurance and vitality. I smiled and laughed to myself and reveled in being enveloped in a room of other gays. I let the sweet music bolstered with a powerful back beat carry me to the dance floor. I remembered the same feelings from the first time I went to a gay bar when I was sixteen. That we were there, together, and dancing meant a lot. As I danced in the center of that dingy basement throbbing with shirtless men and colored lights, I started to regain some sense of who I was and why I had come to law school. Although I didn't talked to anyone at the bar that night, for the first time in months I felt a sense of connection; connection to these other men who stayed out until the middle of the night on week nights dancing wildly in the half-dark. I studied for a few hours the next day and then danced away the night. I woke up just before my exam the next afternoon and took it cold. I kept on the same schedule for the rest of the week. I began to feel a sense of pride in myself again. The feeling was totally independent of law school or my relations with friends or family. I realized that even if I bombed law school, I was strong because I was alive. That in a world that wanted to rub me out of existence, I continued to exist. The biggest accomplishment of my life wouldn't be graduating from law school, it would be living, refusing to kill my body or identity when so many people wanted me to do just that. After penciling in my last exam, I skipped my section's celebration and headed down to my needle exchange route in the Combat Zone. I felt very proud of the work I did that night. The next day I left to spend the intercession in the Cayman Islands with my family. I didn't even think of not going. I enjoyed spending time with my brother and sister and gave my father such a cool, knowing smile every time he opened his mouth he was speechless the entire week. I thought about whether or not I wanted to continue with law school and decided to put off paying the second semester's tuition for a couple of weeks. I flew back to Cambridge and picked up my course work with a new attitude. I tried to find what interested me in the materials and stopped reading so closely and briefing every ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 247--------------------------------- footnote. I found I actually enjoyed the work. My Property and Contracts courses were replaced with Torts and Lawyering for Poor People. Having liberal professors teaching interesting subjects changed my entire perspective on law school. I broke off my bizarre relationship and made several friends in my new classes. At the end of two weeks, I sent in my tuition check, mainly because of those nights spent in gay bars during finals period. Several weeks later I received my grades and was glad I had made the right decision. My grades were completely absurd. I laughed a good salty laugh for the first time in months. SPRING TERM I. OUT OF THE CLASSROOM Trudging to class that Winter, I felt the cold and not much else. After the holidays, it was hard to care too much about anything. I went to class, studied a lot less, and sat around our shrinking apartment. I became bored and then restless. Having been ground through the first semester, I needed something outside of school to distract me. I upped my needle exchange route to two nights a week, started training other volunteers, and gave lectures to high school groups about the program. In February, I did two interviews with a male escort agency in Boston that employed a lot of the prostitutes I worked with on my routes. I told myself and others that I did the interviews to see what kind of safer sex education the service was giving the boys. Officially, that was true. I was intrigued however, and didn't quit until five minutes before I was to go on call (from a pay phone in Langdell Library, no less.) At least I found out that I could make $250 an hour if I ever needed to. I started doing things around school for shear shock value. I took in a large clear plastic jug of dirty syringes to my Criminal Law class and displayed it on my desk during my Criminal Law professor's lecture. I made a poster lampooning my Civil Procedure professor for calling on only a handful of women the entire year. The poster had a 1950s housewife with a huge Doris Day smile holding a platter and a knife. On the platter was my Civil Procedure professor's head. The poster titillated the entire section and caused my Civil Procedure professor to denounce all of us as the worst class he'd ever had. He was accustomed to more reverence. I was still casting about for something to keep me occupied when I spotted a poster on campus advertising a meeting for students concerned about the HIV+ Haitians being detained by the Clinton administration in Guantanamo. I don't think I would have even gone to the meeting but for the fact that it was going on right as I read the poster and in the same building in which I was standing. I took a chance and joined the meeting. The students in attendance were predominately African-American. All of the big-gun activists from the Harvard Law School faculty diversity movement were also there. They were all upperclassmen who I had seen around, but not met. None of the gays on campus had shown up. Within an hour, we planned a week long hunger strike at Harvard that was to become part of a national student hunger strike that moved between twenty different schools. Having done media work for AIDS and gay issues before, I volunteered to be in charge of publicity. The next week and a half were a whirlwind of meetings and demonstrations. Fasting cleared our head and bound us together. The activism began to get my blood pumping again. I pulled out one of my signature protest speeches at the rally that kicked off the hunger strike. Since I am usually fairly quiet, my fire and brimstone cadence shocked the group and instantly propelled me into the inner circle of the organizers. My daily faxes combined with some serious phone calling landed us in the New York Times on the second day of the hunger strike. My name appeared in the story and I gained a new status on the campus. By the time we passed the hunger strike on, I'd regained my energy and meshed with a circle of people that shared my activist inclinations. II. PASSING JUDGMENT I funneled a significant amount of my extra time second semester into the Ames Moot ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 248--------------------------------- Court competition, the research and writing component of the first year curriculum. My moot court team consisted of me, two not-so-out gay men, and Sonya, a straight woman from my section. From our first meeting, Sonya and I were able to figure out that the other two gay men were completely out of their minds and decided that we would split the team into two us and them. At the beginning of the second semester, we learned that our case would deal with a defamation claim against a group of professional football quarterbacks; a magazine article had stated that nine out of twelve of them were homosexuals. Unlike the first year curriculum, the moot court topics were filled with issues of race, gender, and sexual orientation. While the facts of the cases dealt with these issues, the actual legal points to be argued were always more mundane doctrines selected from the first year core curriculum. I threw myself into developing policy arguments for why newspapers should reveal the sexual orientation of professional football players and why allegations of homosexuality should not be libel per se. Sonya worked on teasing out the doctrinal issues. We got involved in the exercise and spent a great deal of time in the library doing research and in her apartment writing. Given the extraordinary privilege of choosing my own seat in one of my classes second semester (seats in all my other course were chosen and charted by the professors) I chose to sit next to Sonya. We became quite a pair. Sonya was from Miami and had a wild past of partying. Unlike most of the first year students, she was truly jaded and we had a lot to talk about. We loved to poke fun of the provincial purity of our classmates. Of course, everyone in our section started to wonder if we were dating. Despite my denials, they believed that we were. One night, some mutual friends, Sonya, her boyfriend and I went out to a jazz club in Sommerville. We were drunk and whispering away to each other as always. Eventually, we decided to ditch everyone and go to a gay club. We were just about to make our get away when a handsome young man approached us. He had been at the bank machine we went to before coming to the jazz club, and we had flirted with him in our drunken friendliness. We talked to him for awhile and then told him about our plan. "You know its a gay club," I said. He decided to join us. The three of us danced in a tight circle in the middle of the club until it closed. The music had been so loud that neither Sonya nor I was able to have much of a conversation with our new friend. He made several suggestions that he wanted to leave but we ignored him. When we finally did leave, he asked us to come home with him. We agreed and the three of us caught a cab. As I was sliding out of the cab at his door, intrigued by the possibility of what might happen, Sonya grabbed my hand and held me back. She said she was too scared to go and I gave our apologies. The cab dropped the two of us off at her house. I had spent the night with her several times before when we had worked late on our case. It was clear to both of us that this was different. I undressed and got into her bed. She followed. Seconds after the lights were out she reached for me under the covers. We made a valiant attempt to have sex, but my drunkenness and sexuality left me flaccid. We laughed and went to sleep. We continued working on the case and hanging out with each after that night. Although I spent the night with her occasionally , we didn't try to have sex again. We did become very physical in class. We would hold hands in the hallway and hang on each other during lectures. People really began talking. The night of our moot court round, we dressed together at her house, practiced our presentation one more time, and headed to the classroom. We were confident because it appeared from the other team's brief that they were just blowing the whole thing off. Many One-Ls didn't take the moot court exercise seriously because it was graded on a pass/fail basis. The other team turned out to be a couple of male WASPs sporting identical side-parts, charcoal suits, and red power ties. They delivered their somewhat homophobic arguments in a monotone and stumbled over their questions with a sobering deliberation. Sonya and I were really on. We gave articulate answers to all of the questions and managed to flesh our voices out with some humanity. All of hard work seemed to be paying off, or so we thought. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 249--------------------------------- After the round, the judges gave critiques of the briefs and the oral arguments. Our three male WASP judges had nothing but praise for our competition. They exclaimed over the brilliance of their brief and the persuasiveness of their presentation. We were only somewhat surprised, but then they turned on us. The judges exclaimed over Sonya's ability to answer questions "we threw you some real hard balls, little lady; we didn't think you'd be able to handle it." All three of the judges could not stop talking about my speaking style. At least once, all three remarked how "flamboyant" I was. What had scandalized them was that I had used a simile during one of my responses to a question. "It's just never really done in oral argument." You would have though I had put on a pair of pasties and done a belly dance on the podium. "Flamboyant. Flamboyant. Flamboyant." The other team was declared the winner. We burst from the room hot with anger and shame and out into the cold Boston night. We yelled about their sexism and homophobia into the quiet snow fall that was slowly covering the city. We couldn't stop ourselves from doubting ourselves and wondering whether the judges were right. Were the judges really biased? Was the other team really as bad as we thought? We paced the streets of Harvard Square and then walked in on the middle of a movie to distract ourselves. We didn't have much to say to each other, and I could tell that Sonya felt embarrassed for me. Embarrassment is a horrible feeling to realize that someone is feeling for you. We said goodnight and went to our respective apartments. It took awhile to let go of that night. It was hard not to see it as my first brush with a limit that would shape my entire career; a limit that I couldn't outwork to overcome. I'd been to the top schools and done well, but when I walked into a courtroom and argued about gay issues, the judges would see me as a raving queen. My opponents, with their dry manner that could make Mary Lou Retton comatose, would be praised by judges, partners, and other attorneys as persuasive and professional. My skills, and ultimately my value, would always be seen through the lens of my queerness. All of the One-Ls had to write evaluations of their moot court judges. Sonya and I wrote scathing reports about what happened, but we never heard anything more of it and neither of us pursued the matter. Our relationship seemed strained, but we decided to spend Spring Break together at her house in Miami. I flew down several days after her and she mysteriously put me up at a friend's house. For some reason she didn't want her parents to know I was visiting. Her discomfort fed mine and we ended up spending most of the vacation apart. When we came back to Boston, I broke things off altogether. We still sat next to each other in class, but we no longer touched. At the time, it seemed to me to be a mutual parting, but later her anger would convey that I had acted more brusquely and unilaterally. I thought I needed to do something drastic and I thought our relationship was unhealthy. I neglected to ask her what she thought about anything. Walking alone down South Beach, I had decided that our relationship wasn't good for me; that I was reproducing the same type of relationship with Sonya that my roommates Tim and Sally had. I started to think of my relationship with Sonya as indicative of the ways that Harvard Law School had changed me. I had started wearing khakis and oxford shirts. I was hanging out with straights all of the time and had fallen into this weird relationship with Sonya. While the moot court judges and the trip to Miami had awakened me to some of what was going on, the thing that I couldn't stop thinking about was a discussion I had been dragged into in Criminal Law class the week before spring break. It began innocently enough. I had made a point comparing the way that Americans think about crime to the way they think about AIDS. For both epidemics, individuals are identified and blamed for their inappropriate behavior (criminals and PWAs) and then demonized as a threat to mainstream America (the innocent, and therefore the good). Little attention is given to the systemic forces that cause and fuel both plagues lack of education, poverty, and discrimination. By focusing on individual responsibility and blame, the chosen societal solution becomes to identify (convict or test) the threatening figures, demonize them (savage criminals or vectors of disease) and to lock them up (in jails or in quarantine.) As soon as I made my point, someone from the back of the room burst out his position that the entire population should be tested for AIDS. Although he had correctly ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 250--------------------------------- accessed that I would be against this policy, his comment had very little to do with the epistemological concerns I had just expressed about how Americans think about crime and AIDS. I looked at my Criminal Law professor with the hope that he would intervene, as usual, by either telling the student that his point did not address mine or by moving the discussion along. The professor looked at me expectantly. I frowned, not really wanting to lose my original point, but then responded. I debated the issue of mandatory national testing with the student for ten minutes. I brought up its costs, its impracticability, its lack of efficacy in even identifying those with the virus, and the potential for the policy to lead to oppressive measures against those who had HIV-disease. He was vehement in his reactionary responses. I was very matter of fact (and slightly board) throughout the discussion. After each of our comments, I would look at my Criminal Law professor. He didn't seem to mind that the class had been overrun with this discussion. After the student responded that universal mandatory testing every six months would not really cost so much because people had insurance coverage, I lost interest. Instead of quipping back, "well unfortunately dear, we're not all on the Harvard Health Plan," I turned and looked at the professor without saying a word. It seemed clear to me that there wasn't any sense to what the other student was saying and I just didn't feel like continuing. After several moments of silence, the professor broke in and resumed his planned class discussion. I felt uneasy about the conversation after the class. I felt that I had let myself down by just giving up; that I should have argued through the points at least for the benefit of the rest of the class. I suspected that many of my classmates had thought that I had fallen silent because I couldn't respond to the student's arguments. I flushed with embarrassment just thinking about the conversation. I was even more disturbed by a comment that one of my friends had made after class. She had told me how impressed she was with my response to the other student. She said that she was amazed at how far I'd come since the beginning of the year. She recalled my comments about the Harvey Milk murder and contrasted them with my performance that day in class. She said I had been so emotional during the comments about Milk, but today I was able to deliver my responses in a very even reasonable, even-keeled manner. "Way to go, guy," she said. Her comments sunk me. I had felt the lack of energy and emotion in my comments. I didn't view it as an improvement over my former hysterical self, however. Her intended compliment made me question if more than my wardrobe had been affected by my short stay at Harvard Law School. Maybe my politics and my spirit had been as well. I didn't want to be presenting my self in class as an un-effected and un-invested medium of my positions. I wanted students to know that I cared and believed in what I was saying. I wanted to speak both eloquently and passionately. I was frightened that my year at Harvard Law School might have changed how I thought and presented myself in ways that I wasn't even aware of unless someone else pointed them out. I was frightened that the great machinery of the first year of law school was doing its number on me whether I realized it to or not. III. QUEER AGAIN I came back from spring break determined to be queer with a vengeance. I broke out of the relationship with Sonya and my newly found contentment with just passing through the straight world of Harvard Law School. I went shopping and bought a bright red ribbed shirt, a short plaid skirt (that's skirt, not kilt ), and a pair of red Doc Martens. I wore this little number to class on the first warm day of the Boston spring. That ended all questions about my sexual orientation and about my difference from the rest of the students. They couldn't believe it, even my friends. Flamboyant, and how! When a homophobic editorial was published in the Law School Record, I clipped the authors face to a poster of a beefy go-go dancer, tacked on a few choice quotes from the editorial, and plastered the clip-art around the campus. I began my own weekly poster series designed to increase gay visibility and to urge people to come out. The COGBLLI crowd became very concerned and wrote a series of editorials asserting that they were not responsible for the posters. These disclaimers of activity where the most activity that COGBLLI engaged in the entire year. One of the COGBLLI gays even went so far as to rip ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 251--------------------------------- one of my posters down because it used the word "queer." The poster was a picture of James Baldwin and was part of a series of posters of famous gays, lesbians, and queers. The student had thought the poster was homophobic. I missed the one COGBLLI meeting that was held that Winter. Talking with my roommate Tim one evening, I was surprised to hear him refer to the selection of the new co-chairs for COGBLLI in the past tense. It appeared that the present chair of COGBLLI had passed over his little dukedom to two 2Ls without even calling a meeting, more less holding an election. I decided to take action. I had eschewed official leadership of the campus gay group at Yale because I doubted the political efficacy of such organizations. The responsibilities of being a social and support system for the entire gay and lesbian community conflicted with the practicalities of political activism. Since everyone had to be made welcome, when the discussion turned to politics, the Log Cabin Republicans had to reach consensus with the radical feminist separatists. Due to most students' coming out timetable and the constraints of the consensus model, the cards were stacked against any meaningful political action. I didn't think the gay scene at Harvard could stand another year of complete apathy, however. For Harvard Law School , building a social and support system for lesbians and gay men was still very necessary and very political. I decided to plunge back into the gay mainstream. I called the current co-chair and asked him when the election for next year's co-chairs was going to be held. While he was still silent with surprise, I told him that I would make the arrangements for the election and advertise it on campus. I postered the campus and invited every gay and lesbian I knew, out or not, to come. The meeting drew a whopping eight students four students that I had invited, the old co-chair, the two heir-apparents, and me. The old co-chair called for candidates for co-chairs and the two cronies raised their hands. I waited for a moment and then raised my hand. They, of course, had expected this. The old co-chair said he had some questions for me. He asked what experience I had working with gay organizations. I reeled off a list gay and lesbian rights organizations I had worked with and then a list of AIDS-service organizations. That stopped the questioning. He did not ask the other two candidates what they had done. There was an awkward silence. I quickly decided that my coup wasn't constructive if it was going to alienate two members of Harvard's small gay community. At least they were coming to these meetings. I suggested that we all three work together. Everyone concurred and we were elected without a vote. The old co-chair informed us that our tenure started immediately. Fortunately, things worked out between the three of us. One of my co-chairs made herself scarce for the rest of the year and I worked well with the other. We put everyone else that was out in a new executive board and created a critical mass of involved persons that kept the organization active and effective for the next year. III. FINALS After Spring Break, I started gearing up for final exams. I had the misfortune of being in the only One-L section that had year-long courses. We had two and that meant we had four finals back to back (the rest of the first year class had three). I got caught up in my reading and started doing outlines for the classes in which I wanted to review the materials. I soon grew bored with my work. I was too on top of things and too unconcerned to be distracted, more less consumed, by my work. Luckily, a disastrous decision by Harvard's Board of Overseers took me away from the monotony of end-of-the-year studying. Harvard had invited General Colin Powell, outspoken supporter of the military's ban on homosexuals, to speak at commencement that year. Two weeks after Harvard announced its decision, the Leadership Council, an university-wide group comprised of the heads of all the gay and lesbian organizations, held a large demonstration against Colin Powell in the Harvard Yard. The rally was quite a success, although I doubted the wisdom of pushing for Powell not to come when so much more could be done if he actually did come. Using my new title as co-chair of COGBLLI, I attended the next meeting of the formidable Leadership Council. I was shocked by their lack of interest in organizing a serious assault on Harvard's choice for commencement speaker or ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 252--------------------------------- in organizing a protest at Commencement. They were more than happy to let me organize something on my own. The next day when I called to say that I had arranged a meeting with Neil Rudentstine, President of the University, they changed their mind. Suddenly, I was a little upstart that was threatening their year long campaign to get approval for a gay and lesbian resource center. They didn't want to do anything that would upset the University. I tried to convince them that they had the opportunity to weigh in on a national debate by having a protest against Colin Powell at Harvard's commencement and that they would be in a stronger position after it was all over to ask for anything from the University. The nation was in its fourth month of debating Clinton's promise to allow gays in the military. Any story involving gays, Harvard, Colin Powell, and the military ban was bound to make national news. They didn't buy it and wished me well on my plans. The next week I postered the entire university campus with advertisements for a meeting to discuss plans for a protest at Commencement. Over eighty people showed up. The meeting was the first of over fifty that I would attend and run in the next five weeks. In the middle of it all, I studied for and took my four final exams. I would study in the Harvard Science Center Library and use the bank of pay phones in the basement to organize volunteers, work the press, keep in contact with the national and city-wide gay and lesbian groups, and to raise money. Studying for and taking exams became chores that I had to take care of before I got to my real work of planning the protest. I cut out of my last final early to attend a phone conference with the heads of the Human Rights Campaign Fund and the National Gay and Lesbian Task Force. The next day, I didn't even pick up the writing competition packet for Harvard Law Review. It just seemed that I had more important and meaningful work to do. The week after classes, the students in my section worked on the Law Review competition or went to their summer jobs. I called the ACLU Lesbian and Gay Rights Project and told them I would have to start a week later because of the protest. Amazing things happened that week. I started dating a 3L who had organized a queer wedding ceremony on the steps of the capitol building his first year . We worked side by side throughout the month. I went to lunch with my Torts professor, and he offered the use of his office equipment for organizing the protest. When we finished, he slipped a twenty dollar bill in my hand to help pay for costs. By the time commencement came, we had an organization of about 100 volunteers and had a budget of eight thousand dollars. After sixty of us spent all night working in the Law School gym, we launched our Commencement protest. We passed out 7,000 pink helium-filled balloons imprinted with the slogan "Lift the Ban" to the audience as they walked into Harvard Yard for Commencement. General Powell had to stare out at a massive sea of balloons, each one representing a gay or lesbian soldier that had been kicked out of the military during his tenure as head of the Joint Chief of Staffs. A good portion of the graduating class wore slick "Lift the Ban" stickers on their mortarboards, ten faculty members stood up with their backs to the audience in protest, and one of the graduation speakers called for Powell to lift the ban in her commencement address. That afternoon, Powell shocked the country by declaring that the needs of the military must be balanced with the rights of gay and lesbian soldiers. The story, with full color pictures, ran on the covers of every major newspaper. The bright pink balloons overhanging the pomp and ceremony of the graduation was an irresistible media image. The ceremony was picked up by CNN and the nightly news casts of the major networks. The New York Times called the event the largest mass protest in the gay rights movement's opposition to the military's ban. Standing in Harvard Yard on the day of Commencement, I felt such a terrific sense of exhaustion and accomplishment. I had worked round the clock for weeks and been stressed out for days. I had planned, and written, and organized, and persuaded. As I walked home with my new queer boyfriend, I let my limp body and mind melt into the warm summer breeze. Wrapped in his arm that night, I dreamt of being enveloped by thousands of pink balls, all sparkling in the brilliance of the sun. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 253--------------------------------- Dorothy's friend goes to law school Kevin S. Reuther I came to law school as an out gay man. Whether it's by nature or by choice, being gay influences nearly every aspect of my life. My experience as a law student is no exception. As I set out on the task of recreating for the reader my experience "as an out gay person" I was immediately confronted with an uneasiness, however. "Gay" is only one descriptive adjective for my identity. I am also white. I am a man. I am Lutheran. I am from a small-town, middle America, upper-middle class, traditional but tolerant family. I am the youngest of three children. I am a few years older than the average law student. I eat meat... My "identity" is infinitely more complex and individualistic than the impression given by stating I am an "out gay man." The way I experience law school is necessarily influenced by many aspects of the history, roots, ideas and cells that give me an "identity." Still, there is something peculiar and particular about being gay that makes it different from the other pieces that make up my identity. I feel it. And I am confident that it makes sense for me to write "as an out gay person" even if that agenda obfuscates other potential explanations for why my experience is different from that of my straight colleagues. The vignettes that follow are all true. They have not been embellished or dramatized. That is to say, they are true accounts of experiences as I experienced them. Undoubtedly, my (gay) memory has highlighted and shaded the events I describe in a fashion consistent with my (gay) interpretation. In any case, since my objective is to give an account of my experience as a gay person any misrepresentations shouldn't really matter. This was what I heard as a gay person. This was what I thought as a gay person. I have tried to be selective in choosing which stories to tell. Most of them have specifically gay content, since my gay identity is most obviously implicated in discussions or situations where being gay is at issue. This does not mean, however, that I only feel and think gay when "gay" is on the table. To the contrary, I almost always feel and think gay and I regret that that message may get lost in this narrative. Finally, it is not without a certain amount of fear and discomfort that I share these stories. This is my first attempt at a narrative presentation of my thoughts for a course. I feel discomfort in being so self-indulgent. I feel fear in being exposed and vulnerable. This exercise has torn away the shield of objectivity I am used to employing to protect me from the words I put to paper. These words are my experience, my personhood. We are invisible 1. Jacobson, assumed to be a homosexual, who illegally ordered magazines containing nude photos of teenage boys. (Jacobson v. US) 2. "Group of lesbians" at the California Rehabilitation Center who offered other inmates the alternative--"fuck or fight." (California v. Lovercamp) 3. Unnamed individuals engaging in "criminal homosexual conduct" spied by police officers peering into a public restroom. (Problem case--we're told to seek guidance in Smayda v. US) 4. Michael Hardwick, "a homosexual," charged with violating Georgia's sodomy statute. (Bowers v. Hardwick) These are the lesbians and gay men I encountered in my assigned readings as a first year law student at HLS. All of these gay men and lesbians are criminals of one sort or another. Not surprisingly, I met them all in my criminal law class. They are the ONLY gay and lesbian characters who appeared in the thousands of pages I was assigned to read in my first year of law school. Don't gay and lesbian people make contracts? Don't we own property? Don't we commit tortious acts? Wouldn't we make an interesting "class" for a class-action hypothetical? My friends and I don't order magazines with nude photos of boys. We don't run around yelling "fuck or fight." Most of us don't even engage in tea room sex. Where are ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 254--------------------------------- we? Where am I? I came to law school to learn skills to be an advocate for gay people. Did I make a mistake? Don't they need any legal help? A person's (homo)sexuality seems to be of interest to the law school curriculum only when it is to be criminalized (or de-criminalized as the case may be). A curriculum which presents a world of contractors, property owners, and tortfeasors devoid of homosexual characters misrepresents the complexity of the social reality. In fact, such a curriculum perfectly exemplifies the insidious nature of heterosexism by erasing the (homo)sexual significance of actors' identities in the mainstream while highlighting an association between (homo)sexuality and criminal behavior--pedophilia, public exhibitionism, and gang raping "lesbians." Moreover, it gives straight students the false impression that gay men and lesbians will not be among their clients (unless they intend to make a career of defending the right to public sex). Since the social conscience has traditionally only acknowledged (homo)sexuality to characterize it as deviant or criminal, it is not surprising that the same is reflected in our curriculum. To be sure, the (homo)sexuality which is present in most non-criminal contexts has been erased or ignored in the stories judges tell about legal actors. But what about hypotheticals? What about questions? What about group projects? What about new, interesting, evolving areas of the law--gay rights, anyone? crimen innominatum By the second month of my one-L year I had figured out that it would be my own task to seek ways in which the law affects lesbian and gay people. No professors had touched on the gay/lesbian experience. None of my syllabi had a lesbian/gay unit. No student in my section had yet uttered the G-word. My criminal law professor was one of the authors of the Model Penal Code. As a result, we spent a considerable amount of time poring over the details of the model code. MPC Section 210.3 deals with manslaughter. It states, in part, that "[c]riminal homicide constitutes manslaughter when: ... (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be." I read this statute as a gay person. I read it as a gay person who a year earlier had been a member of a gay community which experienced two separate murders within the span of a month. The murderer had sent a letter to the local gay community organization stating his intentions to purge the city of its AIDS-infested, perverted citizenry. Fortunately he was caught before a third gay man could be murdered. As I sat in class and listened to people discuss the pros and cons of mitigating circumstances with respect to homicide my thoughts turned to the murders of these two gay men in my community. It angered me to think that the murderer might argue that he suffered from a mental or emotional disturbance and that it was "reasonable" in light of his circumstances. (As it turned out he was the HIV-positive (gay?) son of an ultra-conservative professor at a bible college. Perhaps his projected self-hate was reasonable on some level. I wished there had been a way to prosecute his father.) I raised my hand, took a deep breath and asked: "Since the reasonableness of one's actions is judged from the perspective of the perpetrator--in light of the situation as he perceives it--couldn't one who is taught to believe and truly believes that gay people are aggressors and present a threat use this belief to mitigate in a gay murder case?" Silence. A very long pause. A scrunched up face looks back at me. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 255--------------------------------- All of the sudden my face felt red and warm. "I mean, like, what if there were a gay man who went up to another man and propositioned him. And then the other, infuriated, beat the gay man or shot him or whatever. Wouldn't this section allow him to mitigate simply by showing his education and social milieu--his 'situation'--taught him to believe that gay men were a threat?" Pause. Frown. A cloud of uneasiness settled over the entire room. I felt bad. I felt like the whole class was thinking, "god, give the old guy a break." "Well, no. I've never heard of that," he finally responded. And then from the back of the room, another question. The cloud lifted. I sank down in my chair and would not for the rest of the semester share my private (gay) thoughts with the rest of my criminal law class. One year later I learned that my hypothetical application of MPC Section 210.3 was not so hypothetical after all. It even has a name: the gay panic defense. dismissed and DE-vALUed "Mr. Reuther, you're being too principled. Re-phrase what you're saying..." I believe we were discussing that case in contracts where the woman sells her diamond ring to a jeweler for a dollar not knowing that it is, in fact, a real diamond. Obviously, she wants it back. Or at least she wants some more money for it. What should the court do? And why? I sat and listened to other students' justifications for why the jeweler should be able to keep the ring: "She made a deal." "Our country was founded on the principle of making something from nothing. It's a slippery slope once you start eliminating windfalls--you'll destroy entrepreneurial incentive." "Blah, blah, blah..." Then I listened to different students make the case for the woman who had sold her ring: "It was a mistake." "She made a deal to sell a ring worth one dollar and the ring she ended up selling isn't worth a dollar so there was no deal because the object of the deal wasn't what the parties thought it was." "Blah, blah, blah..." I raised my hand and said: "I think each one should get half the true value of the ring. He deserves something because without him she wouldn't have known it was a diamond and she deserves something because it was her ring and she didn't know its true worth. Each should get half." "But why?" questioned the professor. "Because it's fair," I responded. That's when I got the "Mr. Reuther, you're being too principled" comment. As a gay person I think I come to the law with a heightened sensitivity for issues of fairness. As a gay person I am the victim of blatant discrimination constructed and reinforced by the rule of law. It is unfair that my gay partner would not have standing to bring a wrongful death action should I be killed through the negligence of another. It is unfair that the law does not recognize our partnerships and accord them the benefits of straight partnerships. It is unfair that employers can fire gay and lesbian people because they are gay and lesbian and the law approves. Arguments which appeal to fairness resonate with me because I have experience with the principle. My experience is that the law and law school professors privilege doctrine. My contracts professor was looking for a sophisticated doctrinal argument to convince him of my outcome. Even those professors who are honest about their desire for fair outcomes (my ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 256--------------------------------- property professor--the only woman professor I had as a first year--was one) search for doctrinal strains to manipulate in achieving the desired goal. Perhaps this simply reflects the reality of law and the legal process. In any case, as a gay person I privilege what resonates as fair. Doctrine is my oppressor. out on the inside, but still out I had the great opportunity of spending last summer doing gay advocacy work funded by the Harvard Human Rights Program. I appreciated the fact that the human rights program had taken steps to include lesbian/gay rights issues under their human rights umbrella. There are still those active in the international human rights community who refuse to recognize sexual minorities as people in need of human rights protection. As a participant in the human rights program I attended a debriefing session at the end of the summer in which the entire group of grant recipients shared stories from their summer experiences. The professor who chairs the program was on hand. One of the women described her internship working on women's issues at the United Nations. In passing she commented on the catastrophic role the Catholic church has played in the arena of women's rights. Her comments were seconded by another woman at the table. Just then the professor leaned back in his chair and in a loud, booming voice challenged the women to re-think their impression of the role the church had been playing. Wasn't it better to look for commonality between groups with competing interests? Don't we need to sit at the same table as those who have different opinions if we want progress? Shouldn't we be celebrating the World Population Conference as a huge success? Wouldn't the kind of attitude they were demonstrating in speaking negatively about the church just alienate a very powerful actor? Shouldn't we look rather to the great strides the church has made in defending human rights in places like Latin America? A lively debate ensued. The professor's position was supported by only one other person at the debriefing--a former Jesuit priest. They were two of only three straight (actually I think the priest might be a celibate gay man) white men present. As a gay person I was very incensed and frustrated by the professor's position and his lack of respect for the first-hand experience of the woman who had been privy to the church's communiqus on women at the UN. As a gay person I was irritated by the implication that I was supposed to seek commonalities with an institution and a tradition that calls me a sinner and legitimizes my persecution. I told the professor and the former priest about a gay Catholic group in Minneapolis called Dignity. Members of Dignity wanted to work at reconciling their religion with their sexual orientation. But the church denied them a place to meet. The Catholic church told their own members--people who wanted to remain Catholic--that they could not use the church's facilities to meet because they were homosexuals. How could they be talking about looking for commonalities when people are denied a spot at the table? I asked. It was then that the priest leaned over and whispered in my ear--secreted from the attention of others present. He wanted to let me know that in fact there were two gay Catholic organizations: one called Dignity, the other called Courage. Members of Courage would be allowed to meet in the church because even though they are homosexuals they are not practicing homosexuals. "HUMAN RIGHTS FOR ALL NON-PRACTICING HOMOSEXUALS" is not the banner I want to march behind. I am in the group. I am at the table. But still my cause is not fully understood and my colleagues feel comfortable suggesting, with a whisper in my ear, that what I have done with my lover hours before is immoral, dirty, and a reasonable basis on which to exclude me. rAdiCaliZed and ALONE The final unit in my contracts class dealt with relational contracts. I was excited at the prospect of finally having a forum in which lesbian and gay issues could potentially become the focus of a class discussion. Who more than lesbian and gay people could ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 257--------------------------------- possibly have a greater stake in the law as it relates to relationship agreements. Given the bar on lesbian and gay marriage, contracts which regulate personal relationships are the sole means for gay and lesbian couples to infuse the law into their partnerships. I was disappointed to discover that, once again, I would need to inject "gay" into the discussion if I wanted the topic raised. And I did. My hand went up as one of the students finished commenting on what a stupid idea relationship agreements were and how she did not want her tax money going to the adjudication of things like who was supposed to take out the garbage. Her words reflected the general tenor of the entire discussion: Relationship agreements were for 70s feminists and rich men; frivolous attempts at regulating what we post-modern, Reagan babies knew was unmanageable--feelings, commitment, relationships. I tried to let the class know how important relationship agreements could be for lesbian and gay people. I told them that I didn't appreciate my tax dollars funding a divorce court which closed its doors to me and my kind. I stressed that relationship agreements could substitute for the background rules which apply to straight couples but not to gay couples. I said that relationship agreements were not frivolous, but in fact had real meaning and significance for people whose relationships are invisible to the code and common law. No one else said the G-word. The discussion continued. Where are all the gay people in my section? I thought. Why is it May, eight months into our year together, and I am still the only person to have uttered the G-word in class? Are people uninterested, apathetic, scared? Why didn't another gay person at least come up to me afterward and acknowledge my attempt at raising our issues in class? The gay student community at law school is much different from my community at home. Where I am from gay people kiss and touch. They take chances. They are out and loud. They are self-respecting and principled. They are caring and compassionate. While it is difficult to generalize, there are, I think, characteristics of the law school gay community which make it distinct. This, it seems to me, is the "gay elite." We busy ourselves with sophisticated inquiries into the construction of our identities rather than committing and working for any one agenda. We accommodate the straight power holders and protect the closets of our "straight-acting" sisters and brothers. The bottom line is our pocket book not our self-respect. We are proud GUPPIES. At a recent Lambda meeting (Lambda is the gay, lesbian, bisexual, transgendered student organization on campus) the gay and lesbian student community engaged in an hour-long discussion on the use of the words "queer" and "transgendered." Some members felt that the use of either term was off-putting and would prevent some people from coming out and affiliating with our student organization. In addition, they did not see any connection between themselves and transgendered people. This discussion made me feel like I was from Gay Mars. I was frightened by how willing the white gay male elite is to sell out our fringe elements in order to protect our own and get our piece. Although changes, if any, in my behavior and beliefs since arriving here have been in a conservative direction, coming to law school has radicalized me. a positive note to end on I have spent most of this ink whining. As an out gay man at Harvard Law School I feel there is a lot to whine about. I make no apologies for that. However, my tale would be incomplete without mention of the great advantage I have as an out gay man studying the law: the privilege of peering in from the periphery. I have a rich and full history of experiences with the traditional values which continue to inform our society and our law. Yet, the fact that I am gay kept me from ever fully integrating into the culture around me or espousing those values as my own. Although I participate daily in the dominant culture, my position is on the periphery. And as someone who is marginalized in this way I am in a unique position to observe and critique that which is at the core. I have come to embrace this position as something valuable, something unique to me as an out gay man. I have learned, too, that the law can be my protector as well as my oppressor. I close ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 258--------------------------------- with a final story to demonstrate the positive power of law. I was taking a cab from the airport to Woodbury, St. Paul's most easterly suburb, dreading the fare and wishing I had arranged to be picked up. I had spent the week in New York at the International Lesbian and Gay Association World Conference. I was both pumped and exhausted from the stories I had heard about gay people around the world. The most clearly etched image I brought home from the conference was that of a gay man from China. He sat on the panel of people from Asia, dressed in a bright red t-shirt, his black hair falling squarely on his forehead. He told, through an interpreter, as the cameras clicked and the videos rolled, about the dangers of being "found out" in his country. How a conviction on "hooliganism" commonly leads to jail time and "re-education" for gay men and lesbians. And when he was finished, a member of the audience asked: "What about the cameras, the videos? What if they discover you were here?" "I am not afraid," he answered. The auditorium roared with applause and then fell anxiously silent. Now, back in Minnesota the scruffy cab driver asked me where to. When I told him I was headed for Woodbury he smiled and launched into a detailed story of the night before: He had "pushed around" his girlfriend--"well, let me be clear. I mean, I didn't really beat her up or anything. I'm not that kinda guy. I think guys like that's gotta problem..."--and now her mother, who lived near Woodbury, wanted a word or two with him. "Oh god, please don't tell me this," I thought as my brain scrambled for the politically correct response. Should I get his name and call the cops? What did he mean "pushed around"? I did my best to compliment him on every phrase that signaled respect for his girlfriend and register my disapproval of anything that suggested the opposite. It is an awfully long way from the airport to Woodbury and just as we were approaching the exit off of 494 our conversation died down and he popped the question: So, where had I been? What did I do? A moment's panic: a lump formed in my throat, heat rose in my chest, my face was flush and I cleared my throat to buy time. Did I really have to come out to a woman-beating taxi driver? I pictured myself on the exit ramp, bag flung in the ditch, spit on my face. And then suddenly I remembered my revenge: "I'll sue the hell out of the cab company," I thought. Minnesota has a human rights act that protects lesbian, bisexual, transgendered and gay people against discrimination. I remembered the words of the Chinese man in the red shirt, and I was privately embarrassed for allowing the option of hiding the truth to ever cross my mind. "I was in New York for the gay rights march on the United Nations and the International Lesbian and Gay Association's annual conference," I replied clearly from the back seat, ready to fire back at any hostile remarks. I am not afraid. Fighting to Win and Keep the Freedom to Marry: The Legal, Political, and Cultural Challenges Ahead Evan Wolfson1 In 1993, the Hawaii Supreme Court handed down a historic decision opening the door to equal marriage rights for lesbians and gay men.2 The court case is fully on track, with proceedings on remand now scheduled for September. The lawyers for the lesbian and gay couples (Honolulu attorney Daniel R. Foley of Partington & Foley and Evan Wolfson of Lambda Legal Defense & Education Fund, "Lambda") are hopeful that with a final ruling from the state supreme court sometime in 1996-97, lesbians and gay men will have won the right to marry, with all its myriad benefits, rights, and responsibilities.3 The question then will be: will we be able to keep that fundamental right, or will we see it taken away in a political and legal backlash? The answer may well depend on the work we all have done between now and then. The cultural, political, and legal battles will be fought out both on the national level and state-by-state. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 259--------------------------------- Lambda has created a Marriage Project to help coordinate the legal and political tasks that we all must undertake at this critical turning point in our movement's history. The struggle to defend and keep the right to marry after we win it, even more than the recent battles over "gays in the military," will define the position and public understanding of gay people for years to come. It will touch every issue and every state. Together with other organizations, The Marriage Project has identified the tasks at hand, and has prepared materials to assist lesbians, gay men, our local and national organizations, and our allies, in doing the tasks that each one is best equipped to handle. This is an immense challenge, but also an opportunity to do the kind of public education and grassroots organizing we must undertake if we are to get out front and be prepared. What follows are some materials from Lambda's Marriage Project to help get you up to date and able to join the fight. Some of the materials address the legal terrain we will be battling on, others are aimed at facilitating political organizing and engaging the public on the freedom to marry and gay people. The six documents that follow below, listed in their order of appearance, should help organize our legal, political, and cultural efforts to ensure that sexual minorities obtain and retain equal marriage rights in the years ahead. Critical to the coalition building and public education are vehicles such as the Marriage Resolution, described in both the "Briefing" and the "Questions & Answers" documents. The resolution is short and simple: Because marriage is a fundamental right under our Constitution, and because the Constitution guarantees equal protection of the law, RESOLVED, the state should permit gay and lesbian couples to marry and share fully and equally in the rights and responsibilities of marriage. The "Briefing" provides an overview of the tasks ahead while the "Questions & Answers" provides useful talking points on the most common questions people have about marriage and gay people, enabling anyone to bring the Resolution before an organization. The two therefore should be used in tandem. By reading the Briefing and the Questions & Answers, and then taking the Resolution to organizations -- gay and non-gay, first friendly and then less-friendly -- anybody can help to: (1) promote the necessary discussion and consideration of our equal marriage rights among gay and non-gay people (and organizations), (2) collect signatories as evidence of a growing coalition (Lambda to be a central repository,, with list to be shared), and (3) give people a tool and a task in building that coalition and approaching others. Finally, to give an overview of the legal battles ahead -- - not just to win the freedom to marry, but to assure recognition for same-sex couples' lawful marriages as they travel or return home to another state -- we enclose the "Checklist" (a step-by-- step guide to research on state-by-state recognition issues), as well as the "Background" and the "Summary" (two start-up discussions of the conflicts-of-laws and constitutional issues that will arise). To complement these three documents the Federal Issues Outline additionally identifies federal law questions that will need to be addressed and resolved to ensure coast-to-coast recognition of the right to marry for sexual minorities. Lawyers who wish to join this state-by-state research effort, or assist in researching analogous federal questions, should contact Lambda's Marriage Project Legal Clearinghouse.4 It is impossible to over-emphasize the urgency of getting to work now. Already, in the past few months, radical right legislators have introduced bills in the legislatures of South Dakota, Utah and Alaska purporting to render "void" any marriages between members of the same sex -- measures intended not only to thwart recognition of our marriages down the road, but also to both frame and squelch the issue before we have had a chance to do the necessary ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 260--------------------------------- public education and organizing.5 We won round one in South Dakota,6 lost for now in Utah,7 and are still fighting in Alaska. We cannot allow the enemies of lesbian and gay families to catch us off guard in other states. Political and public education work must accompany the legal work that is driving the timing and inevitability of these momentous battles. Please read the following materials to see how you can help with the legal, political, and cultural struggles that we face. And then join us in this historic moment in our continuing fight for full equality and basic human freedom by contacting the Marriage Project and contributing whatever efforts you can to this endeavor. ENDNOTES 1. Senior Staff Attorney at Lambda Legal Defense & Education Fund, 666 Broadway, 12th Floor, New York, NY 10012 (212-995-8585, 212-995-2306-fax); J.D. Harvard 1983; B.A. Yale 1978; Adjunct Professor, Columbia School of Law. Evan Wolfson is also co- counsel in Baehr v. Lewin 852 P.2d 440, 75 (Haw. 1993), and Director of Lambda's Marriage Project, which encourages and coordinates legal and political work nationwide to win and keep gay people's freedom to marry. 2. Baehr v. Lewin, 852 P.2d 44, 75 (Haw. 1993), on remand to lower court. 3. See, generally, Evan Wolfson, "Crossing The Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the IntraCommunity Critique," 21 N.Y.U. Rev. L. & Soc. change ___ (1995) (forthcoming). 4. See supra note 1 for information on how to contact the Marriage Project. 5. See David W. Dunlap, "Some States Trying to Stop Gay Marriages Before They Start," N.Y. Times, Mar. 15, 1995, p. A18, col.1. 6. Peter Freiberg,, "Gays win in South Dakota, lose in Utah," Wash. Blade, Mar. 3, 1993, p.1, col.1. 7. See "Recognition of Marriages," H.B. 366, Gen. Sess. (1995). See "Utah Won't Accept Same-Sex Marriages," N.Y. Times, Mar. 3, 1995, p. B7, col.4.; Tony Semarad, "Ban on Gay Marriages to be Annulled? Passage May Have Come Too Late to Be Valid," Salt Lake Tribune, p. A1. See also Freiberg at 26. TO: Equal Rights Advocates FROM: Evan Wolfson, Director, The Marriage Project 212-995-8986 (work), 212-995-2306 (fax) RE: BRIEFING: Winning and Keeping Equal Marriage Rights For Lesbians and Gay Men -- What Lies Ahead After Hawaii, What Tasks Must We Begin Now? DATE: May 28, 1995 Thank you for the opportunity to brief you on the status of Lambda's Hawaii marriage case, and the challenges, opportunities, and work that lie ahead for our equality movement. Throughout the country, we must begin preparing now to defend the right to marry, which we are on the verge of winning. Lambda looks forward to working with you, others in our movement, and our allies, and is available as a resource to assist you and others, in organizing and preparing at this historic moment in our equal rights struggle. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 261--------------------------------- Update on the Hawaii Marriage Case In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage licenses to same-sex couples under the Hawaii marriage law presumptively violates the state constitutional guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw. 1993). The Court held that the "different-sex restriction" on marital choice constitutes unconstitutional sex discrimination, much as the analogous "same- race restriction" prevalent just a generation ago constituted unconstitutional discrimination based on race.1 Unless the State can show a "compelling" reason why it should be allowed to continue discriminating, it will have to stop. The case is now back in the trial court, where any justifications the State comes up with must undergo strict-scrutiny review. Id. at 74-75. The State's attorneys have alleged a variety of compelling interests and claimed that the means furthering those interests are narrowly tailored.2 My co-counsel, Daniel R. Foley of Honolulu, and I are hopeful that we will be able to defeat these allegations on remand. The Hawaii Supreme Court is likely to follow through on its earlier holding, and will probably thus uphold a trial court decision ending the "different-sex restriction" on marriage. Equal marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state.3 Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory.4 The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal nationwide recognition of their marriage unions. Despite a powerful cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, there will likely be a backlash at both the federal and state level, possibly in almost every state. These questions are likely to arise: Will these people's validly-contracted marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions for people married in Hawaii? We at Lambda believe that the correct answer to these questions is "Yes." To support that answer, common sense and people's general intuitions both back us up and and are there for us to tap into: marriage is marriage; it's a fundamental right; if you're married, you're married; this is one country, and you don't get a marriage visa when you cross a state border. However, we also know that, as always, lesbians and gay men will have to fight against the tendency of some in politics and the judiciary to create a "gay exception" to even the clearest principle of constitutional law or fairness. Throughout the country, we must now undertake the public education, political organizing, and just plain asking people and groups for support, while preparing, too, for the litigation and political backlash that will follow. Legal Tasks Ahead Lambda has prepared a summary of the legal issues and theories that will be invoked regarding nationwide recognition of marriages validly contracted in Hawaii, as well as a bibliography of articles on various aspects of equal marriage rights. Identifying the legal tasks ahead, we have also already begun work to:  develop networks of attorneys, law professors, and law students to research on a state-by-state basis the legal arguments available against backlash and in favor of recognition (working, i.e., through the ABA, NLGLA)  organize such research by developing checklist of issues and legal areas for analysis  collect materials in a national clearinghouse for future battles  promote, develop, and publish law review articles and spin-offs to mainstream idea of equal marriage rights, recognition, and related constitutional and federalist positions  enlist legal scholars, former law clerks, etc. to do this mainstreaming work and reach judges through conferences, publications, trainings, and create a "buzz" ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 262---------------------------------  prepare materials for legislatures, ranging from briefings to explanatory materials to draft legislation directly on issue and on related issues, i.e., marriage validation. Political Tasks Ahead At the same time, it is vital that all of us, and our allies, begin work now on the political tasks (i.e., public education, national and local organizing) that will shape the legal outcome. On both the national and local levels, all of us must begin now to:  send wake-up calls to our national and local community organizations, and our allies (through, for example, conferences, ad hoc forums, contacts, and briefings such as this)  create a non-defeatist sense of entitlement and expectation, and a climate of receptivity and inevitability (tempered with a commitment to the long haul) -- tap into power of marriage as issue and personal desire even for those less politicized people in our communities  prepare and begin public education campaigns (in conjunction with appropriate groups and professionals)  develop successful "messages" (with polling and p.r. professionals) on the themes of marriage, lesbian and gay families, equal rights, fairness, people's expectations for their partners and children, and federalism -- these are themes that work for us, and a chance to show who we are, frame the battle as we want, address our issues, and present our lives and love affirmatively -- tap into more comfortable, genuine rhetoric for mainstream  marshal evocative stories of how being denied the right to marry affects real people  build a coalition (after developing lists of targets, teams for visiting, and talking points, educate and conduct repeated meetings with potential allies, i.e., progressive organizations, asking for their consideration of the issue over the next several months, and either now or eventually, for their support and endorsement of a resolution in favor of Baehr, lesbian and gay families, and equality)  conduct such repeated meetings with other opinion- shapers: community leaders, churches and religious groups, professional organizations (i.e., social workers, sociologists, psychologists, etc.)  initiate such repeated meetings with editorial boards (following advance prep work through networks, with briefing packets and explanatory memoranda)  prepare such briefing packets, memoranda, issue sheets, organizing manuals, talking points  promote and publish op-ed pieces, features, etc.  organize public forums on topic  organize and conduct trainings to assist local groups in doing this political, educational, and "mainstreaming" work. Although there are many challenges and a backlash ahead, there are also terrific opportunities for organizing and for taking our movement to a new and positive plane. Most Americans, gay or non-gay, have not yet had to give real thought to the validity or meaning of same-sex couples' marriages, or of gay people's being denied the equal right to marry. While the initial reaction of many will range from incredulous to hostile, we also have much going for us: the fairness and rightness of respecting family relationships and committed, caring unions; the ability to present these stories in a compelling, positive, warm, and sympathetic manner (asking people how they would resolve the Catch-22 created by a denial of the right to marry); the logic, indeed, imperative of not requiring people to choose between marriage and movement from state to state; the sense that marriage is marriage, and this is one country in which if you are married, you are married; and a number of sound constitutional, statutory, common law, and fairness arguments. Consider two success stories so far: (1) On August 6, 1994, the Japanese American Citizens League, the nation's largest Asian-American civil rights organization, voted at the national level, over internal opposition, to support equal marriage rights and the decision in Baehr v. Lewin. This is an inspiring start toward winning mainstream endorsement of equal ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 263--------------------------------- marriage rights and building the necessary coalition and educational foundation, and an example of what we must do now vis-a-vis other allies. (2) After some preliminary briefings and education, U.S. Senator Slade Gorton of Washington State declared his opposition to federal interference with equal marriage rights, including by constitutional amendment. He based his position not on a support for our equal right to marry in itself, but rather on a belief that it is not appropriate to interject the Congress into a matter traditionally left to the States (and the traditional and constitutional respect for marriages performed out of state). We must begin asking people and groups -- beginning with our own communities and then our allies, later including other opinion shapers -- for their support. The very next step has to be bringing ourselves, our local and national community groups, and then our allies up to speed on what will follow a win in Hawaii, and on these legal and political tasks that we must undertake now. Lambda has begun such briefings and urges you to organize others, so that we can avoid the unpreparedness that was apparent in the 1993 battle over our right to serve in the military. This time, we have some lead time in which to prepare. Then we need to get as many organizations as possible to endorse this short and simple Marriage Resolution: The Marriage Resolution Because marriage is a fundamental right under our Constitution, and because the Constitution guarantees equal protection of the law, RESOLVED, the State should permit gay and lesbian couples to marry and share fully and equally in the rights and responsibilities of marriage. The Marriage Resolution serves as a vehicle for: (1) promoting the necessary discussion and consideration of our equal marriage rights among gay and non-gay people (and organizations), (2) collecting signatories as evidence of a growing coalition (Lambda to be a central repository, with list to be shared), and (3) giving people a tool and a task in building that coalition and approaching others. Use the Resolution, contact us to sign up your group, and get others on board! As activists and committed organizers, you and your organizations have a critical role in preparing the groundwork NOW for when this issue comes to your home state, as it will. This landmark civil rights battle cannot be left just to lawyers, nor is this is an issue only for Hawaii. Every state, every gay person, every person who cares about equality will be called upon to defend the rights we will have won. Lambda is available to assist you in your leadership at this historic juncture. Please feel free to contact the Lambda Marriage Project for materials or more information, to share your thoughts and plans, and to join with us and others in this work. Some of the Materials Available from Lambda:  Advocate article, 7/26/94, a "wake-up call"  Bibliography of marriage resources  Lambda memo on legal issues regarding nationwide recognition  Marriage Resolution, Q&A, and "talking points" ENDNOTES 1. See Loving v. Virginia, 388 U.S. 1 (1967) ("same-race restriction on choice of a marriage partner violates U.S. Constitution, both as denial of equal protection and as intrusion on ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 264--------------------------------- fundamental right to marry). 2. See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts that marriage statute "intended to foster and protect the propagation of the human race through male-female marriages"). Contrary to some press reports, this law is unlikely to impede the progress of the litigation, which is very much still on track. 3. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor can the legislature alter the outcome (notwithstanding legislation such as that it adopted in June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional amendment. 4. As among non-gay Americans, there is a vast demand among lesbians and gay men for the equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community Critique," 21 N.Y.U. Rev. of L. & Soc. Change (1995) (forthcoming). Marriage brings with it a host of legal and social benefits and protections otherwise largely unattainable. And even those in our movement who may not have chosen to fight to win this right are undoubtedly not willing to see us lose it -- with all the potential damage such a setback would entail across a range of lesbian and gay concerns. QUESTIONS & ANSWERS ABOUT THE MARRIAGE RESOLUTION Thanks to a historic court case now underway in Hawaii, lesbians and gay men may be on the verge of winning the right to marry -- a basic right still denied them in all fifty states. In the past, other people were refused the right to marry -- for example, because of their race -- until the law was changed to end this denial of a basic human right. Like non-gay people, gay people need and want the right to marry. Even once gay men and lesbians finally win this fundamental right -- a right central to true equality as well as a long list of important benefits -- the battle will not be over. There may be a backlash to try to take away the right to marry, or to say that same-sex couples married in Hawaii are not married in other states. The battle may be a long one, with victories and setbacks over several years. To prepare for the struggle, we must gather true supporters of gay people's equal rights, and ask them to sign on to: The Marriage Resolution Because marriage is a fundamental right under our Constitution, and because the Constitution guarantees equal protection of the law, RESOLVED, the State should permit gay and lesbian couples to marry and share fully and equally in the rights and responsibilities of marriage. Here are the answers to some questions people might have: Why do we need "gay marriage"? We don't; we need marriage. The term "gay marriage" implies that same-sex couples are asking for rights or privileges that married couples do not have. What we are asking for is our equal right to marry the one we love and care for, just as non-gay Americans do. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 265--------------------------------- Isn't marriage traditionally defined as a union between men and women? Yes. But it is not right for the government to prevent gay people from sharing the rights and responsibilities of marriage. What should matter is not the gender or race of those marrying, but their commitment. After all, at different times marriages were also "traditionally" defined as only unions between people of the same race or religion, and as unions in which wives were the property of their husbands. Those "traditional" elements of marriage changed to reflect American constitutional values and everyone's basic right to equality. Do gay people really need the right to marry? Absolutely. Many same-sex couples share the same responsibilities as married couples. However, nowhere in the United States do they receive the same recognition or benefits that married couples do. In fact, they face tremendous discrimination, and are treated as second-class citizens. For example, lesbians and gay men who have been their partner's primary caretaker are often turned away at the hospital when there's been an accident or illness; refused "family" health coverage, taxation, and inheritance rights; and even denied protection in case the relationship ends. Sometimes they see their children taken away, or their role as parents denied! Regardless of the fact that they have taken responsibility for their partner's well-being, both economically and emotionally, their legal status is, at best, that of a roommate. Finally, lesbians and gay men are denied the emotional, social, and even religious meaning that marriage has for many. What about domestic partnership? In certain cities, municipalities, and companies, there is limited recognition of relationships between unmarried partners, including same-sex couples. The benefits and responsibilities of such "domestic partnerships" vary considerably. However, no domestic partnership plan can confer the same set of benefits and responsibilities that marriage does. Domestic partnership is of limited help to some unmarried couples, but is no substitute for the equal right to marry. What's happening in Hawaii? The case began in 1991, when the state clerk refused marriage licenses to three couples (two lesbian couples, one gay male couple). In 1993, the state Supreme Court ruled that the refusal violated the state Constitution, which guarantees equality and prohibits sex discrimination. The case is now back in the lower court, where, unless the state can come up with a "compelling" reason for discriminating, it must stop. The state legislature passed a law again trying to restrict marriage, but gave only one reason (procreation) for the discrimination. Because this is not a good reason for refusing to allow these couples to marry, lawyers are optimistic. But this equal rights battle cannot be left just to lawyers, nor is it just about Hawaii. Isn't marriage really about procreation? No. Many non-gay people marry, and cannot or do not have children. And many gay men and lesbians do have children, but are so far denied the right to raise those children within a marital relationship. Legally and in reality, marriage is best understood as a relationship of emotional and financial interdependence between two people who make a public commitment. Many of them -- gay or non-gay -- wish to be parents; many others do not. The choice belongs to the couple, not the state. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 266--------------------------------- Do all lesbians and gay men want the right to marry? No, gay people are as diverse as non-gay people; many would not choose to marry even if they could. However, virtually all gay people want the right to decide for themselves whether and whom to marry, just as non-gay people do. Don't some religions oppose lesbian and gay relationships? Yes, but this is not a fight to force any religious institution to perform or extend religious recognition to any marriages it doesn't want to. This is about the right to the civil marriage license issued by the state. Just as the state should not interfere with religious ceremonies one way or the other, so religious groups should not control who gets a civil marriage license. Of course, many lesbians and gay men are active in their respective religions, many of which do recognize and support their loving unions and commitments. Isn't this a bad time to fight for the right to marry? To some, there is never a good time to fight any battle for equal rights. But here we have no choice. In this particular battle, the timeline centers on the lawsuit. When and if the Hawaii Supreme Court hands down a final ruling affirming the right of same-sex couples to marry, many people in Hawaii and elsewhere will get married there. When they return home to other states, the nationwide validity of their legally contracted marriages may be challenged. Although there are powerful legal and practical reasons why a couple's lawful marriage in one state must be recognized throughout the country (this is, after all, one country, and if you're married, you're married), there will undoubtedly be an effort in some states and possible in the federal government to block this recognition. As always in the struggle for human rights, the outcome will depend in part on how well those committed to equal rights have prepared for the state- by-state and national legal and political battles, beginning now. Recall that just a generation ago, a similar "same-race" restriction was in place, and state governments denied interracial couples the right to marry. Under slavery, African- Americans were not even permitted to marry at all, which was one of the ways they were legally dehumanized! Today we realize that this was wrong, and the choice of a marriage partner belongs to each man or woman, not the state. The same is true for lesbians and gay men. It's a matter of basic fairness, social responsibility, civic equality, and human dignity. How can I help? By getting the word out, educating the public about gay people's right to marry, and becoming part of a broad-based coalition of individuals and groups that support equal marriage rights. Make sure that any organization you belong to or can reach out to, sign on to the Marriage Resolution. By endorsing the Marriage Resolution, you are telling politicians, judges, and others that it is time to end this discrimination against lesbians and gay men throughout the United States. Once your organization(s) have endorsed this resolution, please let us know immediately by mail, phone, or fax. Then circulate it to others. Contact us at: The Marriage Project Lambda Legal Defense & Education Fund 666 Broadway, 12th Floor New York, NY 10012 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 267--------------------------------- 212-995-8585 212-995-2306-faxTO: Attorneys, Academics, and Students FROM: Evan Wolfson, Lambda Legal Defense & Education Fund Jeffrey Gibson, ABA Section on Individual Rights and Responsibilities, Chair Lesbian & Gay Committee Barbara Cox, California Western School of Law DATE: January 22, 1995 RE: CHECKLIST for State-by-State Legal Research on the Nationwide Recognition of Same-Sex Couples' Validly Contracted Marriages Lambda Legal Defense & Education Fund ("Lambda") and the Section on Individual Rights and Responsibilities of the American Bar Association, together with Gay & Lesbian Advocates & Defenders and other organizations, have formed a network of attorneys to research the critical constitutional and legal questions that may arise following what would be a landmark victory in Baehr v. Lewin, the Hawaii equal marriage rights case. We are seeking your participation in this state-by-state project. If you are willing to help, please fill out the accompanying form and mail or fax it to Lambda today. We will then contact you to put you in touch with others researching in the same area. What we need from you is research in your state on the following questions. Please try to be thorough, creative, and exhaustive in providing this information. Lambda's Marriage Project Legal Clearinghouse plans to compile and distribute the work we do together as part of a manual for attorneys around the country. We would like you to submit your materials by June 1, 1995. Please research the questions set forth in this checklist (to get you started, see the accompanying memo entitled "Background materials..."). When writing up your research and appending cases or other materials, please indicate which question you are answering. This will help us in being accurate when compiling information gathered from attorneys around the country. QUESTIONS: This checklist addresses first choice of law questions and then full faith and credit (and other constitutional) questions. CHOICE OF LAW APPROACHES Marriage Validation Statutes: 1. Does your state have a marriage validation statute? If so, include a copy of the text of the statute. If your state has a marriage validation statute, please review the cases under that statute and answer questions 2-5. If not, proceed to question 6. 2. Have the courts used the marriage validation statute to recognize an out-of-state ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 268--------------------------------- marriage? If so: (a) what types of out-of-state marriages were validated, (b) what was the court's reasoning for applying the validation statute to the marriage, and (c) how could we use the court's reasoning to argue that it should use the validation statute to recognize an out-of-state marriage by a same-sex couple? Be specific. 3. Under what circumstances, if any, have any courts used a "public policy exception" to refuse to apply the marriage validation statute? Be specific in detailing the specific public policy exception used and whether there is any likelihood that a court would use that same public policy to refuse to apply the marriage validation statute in cases of an out-of-state marriage of same-sex couples. Also indicate whether the use of the public policy has been critiqued in the courts or in local law reviews or journals. 4. If public policy exceptions have been used to refuse validation, have any courts used the marriage validation statute to recognize an out-of-state marriage despite the existence of public policy exceptions? Be specific in detailing the court's reasons for not using the public policy exception and recognizing the out-of-state marriage under the validation statute. 5. Determine whether the marriage validation statute in your state was adopted as a segment of the Uniform Marriage and Divorce Act or any other interstate arrangement. Be specific in indicating the uniform act or interstate arrangement. Marriage Evasion Statutes: 6. Does your state have a marriage evasion statute? If so, include a copy of the text of the statute. If your state has a marriage evasion statute, please review any prior cases under that statute and answer questions 7-10. If not, proceed to question 11. 7. Have the courts required that an out-of-state marriage must be statutorily prohibited within the state in order to be invalid under the evasion statute? If so, explain what the specific statutory prohibition was, and how the courts used that prohibition to find a violation of the marriage evasion statute. Be specific. 8. Have any courts recognized an out-of-state marriage by state domiciliaries that was statutorily prohibited within the state notwithstanding the evasion statute? If so, explain how the marriage was statutorily prohibited and why the court found that it did not violate the evasion statute. Be specific. 9. Have any courts found that an out-of-state marriage violated the marriage evasion statute even if the marriage was not specifically prohibited within the state by statute? If so, what type of marriage was involved and on what basis did the court find that the marriage was invalid under the evasion statute? Be specific. 10. If any courts have found that an out-of-state marriage violated the marriage evasion statute, did it do so on public policy grounds, rather than or in addition to statutory prohibition? If so, what were the public policy grounds and why did the court find that the marriage violated that public policy? Also indicate whether the use of the public policy has been critiqued in the courts or in local law reviews or journals. Be specific. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 269--------------------------------- General Public Policy Issues: Because we have to be prepared to address "public policy" grounds that might be alleged to support or oppose recognition of out-of-state marriages by same-sex couples, the following broad public policy questions must be answered. Public policy concerns may arise at any time in the choice-of-law arena. 11. List any statutes or case precedent that might be used to support an argument that marriages by same-sex couples would violate state public policy (e.g. "sodomy" statutes, prohibition of lesbian or gay adoption, cases denying benefits to same-sex couple or refusing to permit co-parent adoption or visitation, etc.) If statutes exist, include a copy of the text of the statute. If precedent exists, include a brief summary of the case, an explanation of the public policy, and how you think that it might be used to argue that marriage by same-sex couples violates public policy. 12. List any statutes or case precedent that might be used to support an argument that marriage by same-sex couples would not violate state public policy (e.g. anti-discrimination or "domestic partnership" statutes or policies, cases determining that "sodomy" statutes are unconstitutional, cases permitting co- parent adoption or visitation, etc.) If statutes exist, include a copy of the text of the statute. If precedent exists, include a brief summary of the case, an explanation of the public policy, and how you think that it might be used to argue that marriage by same-sex couples does not violate public policy. Recognition of Out-of-State Marriages: Most states have handled cases on whether to recognize out- of-state marriages. In this question, do not consider cases decided under choice-of-law theory. Instead, focus on cases that do not specify choice-of-law theory but use public policy or other grounds for deciding whether to recognize the marriage. Save the choice-of-law cases for the next section. 13. Has your state had any cases deciding whether to recognize an out-of-state marriage by state domiciliaries? If so: (a) list those cases, (b) include the type of out-of-state marriage that was involved, (c) why was there a question of whether it should be recognized in that state, and (d) provide an explanation of the court's reasoning for recognizing or refusing to recognize the out-of-state marriage. Be specific. 14. If your state prohibited interracial marriages, did any cases (whether majority, concurring, or dissenting opinions) discuss the racism inherent in the prohibition? List those cases (and any others of particular interest), and provide the court's reasoning and an explanation of how that reasoning challenges the inherent racism or denies that racism is behind the prohibition. Be specific. Have any commentators or local historians discussed the state's history regarding interracial marriage and how the law of the state was skewed by racism regarding marriage and family relationships? Discuss. Choice-of-Law Theory Cases: ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 270--------------------------------- 15. In deciding out-of-state marriage recognition cases, has your court explicitly used a choice-of-law theory (e.g. First Restatement, etc.) in deciding whether to recognize the marriage? If so, what choice-of-law theory did it use and how did it use that theory to determine whether to validate the out-of-state marriage? Be specific. 16. If your state has not had a marriage case decided by choice-of-law theory, what choice-of-law theory does it use for other conflicts cases? Primarily, these cases would be torts or contracts cases, although numerous other types are possible. Be specific in stating what choice-of-law theory your state uses. It is possible that your state uses one or more theories. If it does, be sure to indicate which theory it uses for which cases. 17. In applying that choice-of-law theory, how does your state court determine when to use its own law or when to use the law of the other state? In other words, using the cases, explain how the court applied its choice-of-law theory and how those cases might be used to support or oppose recognition of an out- of-state marriage by same-sex couples. Be specific. 18. If your courts have used any public policy grounds in deciding choice-of-law cases, how have they used public policy to decide which law to apply, how has the use of public policy been critiqued by the courts, and how has it been critiqued in local law reviews or journals? Be specific. FULL FAITH AND CREDIT (AND OTHER CONSTITUTIONAL) APPROACHES Advocates need to be prepared to address both the choice-of- law issues and the constitutional Full Faith and Credit issues that arise in marriage recognition cases. Research on a national basis is being done on Full Faith and Credit and other constitutional theories (i.e., right to travel, equal protection, fundamental right to marry). What we need from you in particular is research on when courts in your state have used the Full Faith and Credit clause (or other federalism-related doctrines) for cases arising in your state. 19. How have your state courts or the federal courts for your state defined (a) public acts, (b) records, or (c) judicial proceedings in Full Faith and Credit cases? How can these cases be used to support or oppose an argument that marriage fits within those definitions and thus an out-of-state marriage by same-sex couples should be protected under the Full Faith and Credit? Be specific. 20. Have any courts used the Full Faith and Credit clause in deciding whether to recognize out-of-state marriages or whether to refuse to recognize out-of-state marriages? If so: (a) indicate the kinds of marriages the court considered, (b) its reasoning for finding that the Full Faith and Credit clause controlled the issue, and (c) its reasoning for providing constitutional protection or refusing to provide constitutional protection under the clause. Be specific. 21. In cases when issues arising under the Full Faith and Credit clause might have been invoked but were not, do your courts or commentators in local law reviews or journals shed any light on why those issues were not raised (i.e. impact of racism, failure of attorneys to argue the issue and why). If so, explain the reasons for the failure to raise these issues. Be specific. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 271--------------------------------- 22. Other than Full Faith and Credit, have the courts or commentators in local law reviews or journals discussed the use of other constitutional theories (i.e., right to travel, fundamental right to marry) as a basis to recognize or not recognize out-of-state marriages? If so, explain those theories and how they would support the recognition or lack of recognition of the marriages. Be specific. General Marriage Requirements: 23. We need to determine and collect the marriage requirements for every state. Please research your state's marriage statutes and indicate: (a) what the requirements are to marry in your state; (b) is there a domiciliary or residency requirement for your state and, if so, what is it; (c) in issuing marriage licenses, (1) does your state issue a marriage license that can be used in other states; (2) does your state require that a marriage license be issued in your state even if the marriage is going to be held out-of-state; (3) does your state allow weddings to be performed locally with a marriage license issued from out- of-state; (d) what other requirements exist in your marriage statutes that might affect the ability of a same-sex couple to marry or have their marriage recognized in your state; (e) who can officiate marriages in your state and what does "officiate" actually mean under your statutes; and (f) are there any statutes in your state that recognize specific religious marriages as legally valid even when they do not conform to the other requirements in your marriage statutes (see, e.g., N.H. ch. 457, sec. 37, which recognizes marriages performed by Jewish rabbis or Quakers in the way usually practiced by those religions, notwithstanding other statutory requirements.) Include a copy of all cited statutes. 24. Is marriage by same-sex couples expressly prohibited in your state? (a) If so, include a copy of the text of the statute and any legislative history that exists for the prohibition. Many statutes are ambiguous, in that they often include references to "a man and a woman" or "husband and wife". If there is any possible reading of your statutes that would support an argument that marriage by same-sex couples is prohibited, include those statutes. (b) If your state prohibits marriage by same-sex couples, how does the prohibition compare to other prohibitions (i.e., incest, polygamy, age or remarriage restrictions) and can we use those differences (or similarities) to argue in favor of marriage by same-sex couples (i.e., if they previously recognized a "more prohibited" out-of-state marriage)? Be specific. For all of these questions, it is vital that your research be specific, creative, and exhaustive. We need to have as much information on all these questions, and the related ones that arise during your research, in order to make it possible to compile information that will be useful to other attorneys and all of us in the battle ahead..  ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 272--------------------------------- Thank you in advance for your willingness to participate in this national research effort. We are confident that this research will assist in preparing same-sex couples to assure equal recognition of their marriages nationwide. If you know of others who can assist with this project, or if you have questions while completing this checklist, please contact: Professor Barbara Cox, California Western School of Law at (619) 525-1496, or Evan Wolfson, Senior Staff Attorney and Director of the Marriage Project, Lambda Legal Defense & Education Fund at (212)-995-8585. Responses and supporting materials should be mailed to: The Marriage Project Legal Clearinghouse Lambda Legal Defense and Education Fund 666 Broadway, 12th Floor New York, New York 10012 Sign-Up Form PLEASE FILL OUT COMPLETELY AND FAX (OR MAIL) to: Evan Wolfson, Marriage Project Legal Clearinghouse Lambda Legal Defense & Education Fund (212-995-2306-fax): YES, I would like to help ensure that we not only win, but keep, equal marriage rights for lesbians and gay men, and assure that same-sex couples' marriages are recognized nationwide. Please count on me as a participant in the Marriage Project Legal Clearinghouse. NAME: ADDRESS: ORGANIZATIONAL AFFILIATION(S) (if any): PHONE (Day): (Evening): FAX: E-MAIL: ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 273--------------------------------- AREA(S) OF SPECIALIZATION/PRACTICE: COMMENTS/OTHER POTENTIAL PARTICIPANTS: (Continue on back if necessary)TO: Attorneys, Academics, and Students FROM: Evan Wolfson, Lambda Legal Defense and Education Fund Jeffrey Gibson, ABA Section on Individual Rights and Responsibilities, Chair Lesbian & Gay Committee Barbara Cox, California Western School of Law DATE: January 9, 1995 RE: BACKGROUND MATERIALS for State-by-State Legal Research on the Nationwide Recognition of Same-Sex Couples' Validly Contracted Marriages I. PURPOSE OF PROJECT AND BACKGROUND MEMO The purpose of this summary Background memo is to prepare you to help in a national effort to research choice-of-law and Full Faith and Credit issues on a state-by-state basis. Choice- of-law and constitutional questions will arise once the Supreme Court in Hawaii recognizes same-sex couples' equal marriage rights in Lambda's pending Baehr v. Lewin case. Undoubtedly, many gay and lesbian couples will travel to Hawaii and get married. They will then return home. This research project seeks to compile the statutes and precedent in each state to prepare advocates to address the choice-of-law and Full Faith and Credit questions that may arise during litigation if same-sex couples' validly contracted marriages are denied recognition (e.g., when they file a joint tax return, seek employer-paid health insurance benefits, or register as a "family" for membership purposes, etc.) The summary below highlights the main choice-of-law and Full Faith and Credit analyses that will be used by most courts in resolving these cases. II. OVERVIEW In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage licenses to same-sex couples under the Hawaii marriage law presumptively violates the state constitution's guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw. 1993). The Court remanded the case to the trial court for strict-scrutiny review as to whether Hawaii's alleged compelling state interest(s) justify the statute's discrimination, and whether the means furthering the asserted interest(s) are narrowly drawn. Id. at 74-75. The State's attorneys have alleged a variety of compelling interests and claimed that the means furthering those interests are narrowly tailored.1 Co-counsel Daniel R. Foley of Honolulu and Evan Wolfson of Lambda Legal Defense and Education Fund are hopeful that the plaintiffs will be able to defeat these allegations on remand. Indications are that the Hawaii Supreme Court is likely to follow through on its earlier holding, and will thus uphold a trial court decision ending the "different-sex restriction" on marriage. Equal marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state.2 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 274--------------------------------- Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory.3 The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions. Despite a powerful cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, these questions are likely to arise: will these people's validly-contracted marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions? We believe that the correct answer to these questions is "Yes." To support that answer, there is much common sense and people's general intuitions both to back us up and for us to tap into: marriage is marriage; if you're married, you're married; this is one country; and it's a fundamental right. However, we also know that, as always, lesbians and gay men will have to fight against the tendency of some in politics and the judiciary to create a "gay exception" to even the clearest principle of constitutional law or fairness. Throughout the country, we must now undertake the public education, political organizing, and just plain asking people and groups for support, while preparing, too, for the litigation that will follow. This summary briefly surveys the legal grounds for gaining nationwide recognition of the marriages same-sex couples contract in Hawaii.3 Because the better answers are on our side -- and because the legal battle, as well as people's serious consideration of what is involved in marriage and respect for the marriages of gay people, are just beginning to take shape -- it is important we begin to marshal and mainstream our arguments without ceding ground. On this critical front, we have not yet begun to fight. Broadly speaking, there are two basic approaches to marriage recognition: constitutional and statutory/case law, discussed in detail below. Obviously, if there is a successful determination that the Constitution requires recognition nationwide, as we believe there should be, there would be no need to pursue the complex state-by-state issues that arise under conflicts of law and other approaches by which states have dealt with marriage recognition in the past. Such a constitutional outcome could arise under the Full Faith and Credit clause, other federalist principles (i.e., right to travel), equal protection doctrine, or the fundamental right to marry itself, as discussed below. In these background materials, we first lay out the non- constitutional approaches, as courts might elect to avoid a constitutional issue by recognizing same-sex couples' marriages on other bases. As advocates, we must master, further develop, and be prepared for both the constitutional and conflicts approaches, as well as more general public policy considerations such as practicality and fairness, without waiving or abandoning any. III. CHOICE-OF-LAW STATUTES AND CASES a. Introduction Once Hawaii protects the right of same-sex couples to marry, the question will arise to what extent an out-of-state marriage by a same-sex couple will be recognized upon the couple's return to their domicile. For example, Amy and Betty or Andy and Barry travel from their home state to Hawaii to marry following recognition of same-sex marriage upon conclusion of the Baehr case. Following their marriage and honeymoon in Hawaii, they return to their domicile and assert their marital status in that state, just as non-gay people do. At some point, a benefit provider (be it a health insurance carrier, health club owner, workers' compensation board, government body, or other institution) may refuse to accept that the couple is validly married. Then the parties will proceed to litigate our couple's marital status within their domicile state.4 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 275--------------------------------- States have a variety of rules to decide the question. For example, the Restatement (Second) of Conflict of Laws provides a system of analysis for courts seeking to resolve this question of first impression. Although some commentators object to the Second Restatement's position on marriage, the Second Restatement's usefulness at this point is to indicate an organization for analyzing how some courts in various jurisdictions may address marriage by same-sex couples. Section 283 states that: (1) The validity of marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage under the principles stated in  6. (2) A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage. Turning to section 6, that section states that "A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law." When no statutory directive exists, to determine the state with the "most significant relationship" to the issue, the court should consider various factors relevant to the choice-of-law.5 Thus, we will begin, as the courts must do, by considering the statutory directives of the various states as the first step in determining whether our couple's marriage will be validated within their domicile.6 When no statutory directive exists, the courts of the state with the "most significant relationship," usually the parties' domicile, will consider choice-of-law theories to resolve whether to recognize the marriage which was valid where celebrated. Courts considering this issue usually begin by recognizing the general rule preferring validation of marriages which exists with an "overwhelming tendency" in the U.S.7 Under this rule, marriages will be found to be valid if there is any reasonable basis for doing so.8 There are such strong policy reasons behind this rule that it has become well entrenched in the substantive law of all the states.9 "The validation rule confirms the parties' expectations, it provides stability in an area where stability (because of children and property) is very important, and it avoids the potentially hideous problems that would arise if the legality of a marriage varied from state to state."10 The parties' expectations arise from the fact that the married couple needs to know "reliably and certainly, and at once, whether they are married or not."11 Additionally, the concern about uncertainty comes from the problem of a couple being married in one state and not another or being continually uncertain about their marital status while pursuing litigation to determine that status.12 Despite this overwhelming tendency to validate the marriage, our same-sex couple may be left unsure whether their marriage will be recognized, due to the discretion courts have to refuse recognition on public policy grounds. Given this inherent uncertainty, we need to research these questions to provide what guidance is available, from statutes and choice-of-law theories, to determine the validity of our couple's marriage. b. Validation Statutes This section gives background for checklist questions 1-5. Numerous states have adopted some form of the Uniform Marriage and Divorce Act  210 which was intended to validate marriages celebrated outside a state within the adopting state. There are some variations in the statutory language. Colorado has a statute which, like most other states, simply adopts the language from the Uniform Marriage and Divorce Act. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 276--------------------------------- All marriages contracted within this state prior to January 1, 1974, or outside this state that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties are valid in this state.13 The comments of the Uniform Marriage and Divorce Act indicate that  210 was intended to validate marriages, even if the parties would not have been allowed to marry in their domicile.14 The comment also states that  210 "expressly fails to incorporate the 'strong public policy' exception of the Restatement [Second] and hence may change the law in some jurisdictions. This section will preclude invalidation of many marriages which would have been invalidated in the past."15 Thus, a strong argument can be made in states which have adopted  210 that they are prevented from contradicting the policy behind that section, validation in all circumstances, by refusing to recognize our couple's marriage on public policy grounds. Many states with validation statutes also adopted  207 of the Uniform Marriage and Divorce Act which lists narrow prohibitions against marriage. For example, the Colorado statute states: 14-2-110 Prohibited marriages. (1) The following marriages are prohibited: (a) A marriage entered into prior to the dissolution of an earlier marriage by one of the parties; (b) A marriage between an ancestor and a descendent or between a brother and a sister, whether the relationship is by the half or the whole blood; (c) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established custom of aboriginal cultures. Colorado cases, when applying these two sections of the Marriage and Divorce Act, are similar to those found in other states. Those cases give out-of-state marriages clear acceptance, even when contrary to other marriage statutes in the state, unless the marriages were expressly prohibited. Thus, questions 1-5 ask you to research whether your state has a validation statute, under what circumstances that validation statute has been used, and whether the courts have used public policy grounds in deciding whether to apply the validation statute to an out-of-state marriage. Question 24 asks whether and how your state prohibits marriage by same-sex couples to help determine whether the courts will recognize their out-of- state marriages. c. Evasion statutes This section gives background for questions 6-10. Illinois, Massachusetts, Vermont, and Wisconsin adopted the Uniform Marriage Evasion Act during its brief existence.16 The typical language contained in these statutes can be found in the Vermont statute. If a person residing and intending to continue to reside in this state is prohibited from contracting marriage under the laws of this state and such person goes into another state or country and there contracts a marriage prohibited and declared void by the laws of this state, ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 277--------------------------------- such marriage shall be null and void for all purposes in this state.17 Numerous other states also have evasion statutes, although not adopted as part of the Uniform Marriage Evasion Act. With all evasion statutes, the most important question that needs to be answered is whether your state prohibits marriage by same-sex couples statutorily. Under the clear language of most evasion statutes, they only apply if the marriage in question has been prohibited. If your state does prohibit marriage for same- sex couples statutorily, then we will need to look for cases when other types of marriage were also statutorily prohibited and whether the courts upheld those marriages despite the statutory prohibition or found them to violate the evasion statute. If your state does not prohibit marriage for same-sex couples, then we will be able to make the argument that the evasion statute does not apply unless the statute has been applied to other marriages that were also not prohibited. Questions 6-10 ask you to determine whether your state has an evasion statute and to locate cases interpreting that statute and how the courts have used the statute in deciding the marriage recognition cases. Question 20 asks whether your state prohibits marriage by same-sex couples so that we can determine whether the evasion statute, on its face, applies. d. General policy issues and out-of-state marriage cases Questions 11-12 consider public policy grounds that may be raised by parties and courts regardless of marriage validation statutes, marriage evasion statutes, or choice-of-law theory. Question 13 asks for research on general out-of-state marriage cases that do not fit under either validation or evasion statutes but also were not explicitly decided using choice-of-law theory. Question 14 asks for research on miscegenation cases and the racism inherent in the prohibition of interracial marriage. Questions 23-24 ask for research on the specific marriage requirements in your state and whether your state prohibits marriage by same-sex couples. e. Choice-of-law theory This section gives background for questions 15-18. Although the question of whether to recognize a marriage by same-sex couple may well be determined by a validation statute or an evasion statute, it is likely that courts will also consider their state's choice-of-law theory in determining whether to recognize an out-of-state marriage. Choice-of-law theories are used to help courts determine which state's law to use when faced with resolving cases involving parties or law from different states. In these cases, the question would be whether to recognize the valid Hawaii marriage or to refuse to recognize it due to the domiciliary state's refusal to allow marriage by same- sex couples. This section will list the main choice-of-law theories used today and will briefly, and incompletely, summarize how a same- sex marriage might be addressed under those theories. Each state uses some choice-of-law theory in deciding cases. Once you determine the choice-of-law theory your state uses, this section will provide background on each of those theories and the questions that will arise under them on the issue of an out-of- state marriage by a same-sex couple. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 278--------------------------------- 1. First Restatement For marriage cases decided under  121 of the First Restatement, the rule of lex loci celebrationis would apply, meaning a marriage valid where celebrated was valid everywhere.18 Although comment d of  121 indicates that the law of the domicile governs the domestic status of marriage, the differences between states in their marriage laws would "lead to great difficulty, if it were not for the fact that all Anglo-American states agree in creating the status of marriage (except in rare cases considered in  131 and 132) in every case where there is a contract of marriage valid in the state where the contract is made."19 The courts are understandably reluctant "to negate a relationship upon which so many personal and governmental considerations depend."20 In fact, denying a normal incident of marriage to a validly married couple is a harsh measure that should be avoided unless enjoyment of that incident "violently offends the moral sense of the community."21 But it would be possible, under the First Restatement, that some would argue that our couple's marriage in Hawaii offends a community's "moral sense" and should be treated as one of the "rare" cases under  132. That section states: A marriage which is against the law of the state of domicile of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases: (a) polygamous marriage, (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicile, (c) marriage between persons of different races where such marriages are at the domicile regarded as odious, (d) marriage of a domiciliary which a statute at the domicile makes void even though celebrated in another state. Thus, although  121 of the First Restatement would lead one to expect that our couple, married in Hawaii, could return to their domicile and find strong support for validation of their marriage,  132 appears to allow the domiciliary state to limit marital recognition. Although marriages by same-sex couples were not specifically included within  132, comment b indicates that the list is "not intended to be an exclusive enumeration and if a marriage offends a strong policy of the domicile in any other respect, such marriage will be invalid everywhere."22 However, with regard to miscegenous marriages (which were still restricted when the First Restatement was published) comment c indicates that, in order to be "odious" under  132(c), it must "not only be prohibited by statute but must offend a deep-rooted sense of morality predominant in the state."23 Thus, despite  132, in states following the First Restatement, our same-sex couple could have their marriage in Hawaii validated if (1) the state chose to follow  121 which would validate it automatically or, (2) even if the state followed  132, it did not have a statute prohibiting same-sex marriage or same-sex marriage was not found to offend that state's "predominant" sense of morality. It would be possible, however, that a court might say that our same-sex couple's marriage violates the community's "sense of morality."24 Despite the fixed rule in favor of validity, numerous older cases following the First Restatement did reject out-of-state marriages as invalid, despite being valid where celebrated.25 Thus, even when choice-of-law decisions tended to follow mechanical rules, courts maintained their archaic prerogative to invalidate marriages when contrary to local public policy or prejudice. Because  132 allows an explicit "escape device" from  121's rule favoring validation, courts hesitant to recognize marriages by same-sex couples may attempt to invoke public policy grounds to refuse recognition. Advocates in First Restatement states should be prepared to reject this approach, as well as to defeat it on its own terms by showing that its essential elements are not met. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 279--------------------------------- 2. Interest Analysis In the late 1950's and early 1960's, Brainerd Currie developed his "governmental interest analysis" theory in a series of law review articles.26 Currie argued that the positive law and common-law rules of a state expressed state policy choices which that state had an "interest" in applying to the state's domiciliaries. Currie divided the conflicts world into three portions: false conflicts, true conflicts, and unprovided-for cases. False conflicts occur when the parties have a common domicile, that state has the only interest in applying its law, and the forum should apply the law of the common domicile. True conflicts arise when more than one state has an interest in applying its law to its domiciliary and unprovided-for cases occur when no domiciliary benefits from application of his or her state's law. In those cases, Currie suggests applying the forum law because there is no good reason to displace it since the problem is insoluble. Interest analysts note that courts, regardless of the approach or method used, generally end up applying their own law, as Currie advocated they should. Currie would probably find that our couple's situation involves a "false" conflict because, although they were married under one state's law, that state was not their domicile and their domicile's law should control. But, as can be seen from the statutory review above, the domicile's law may be quite difficult to ascertain. 3. Second Restatement The Restatement (Second) of Conflict of Laws, reported by Professor Willis Reese, was completed in 1971. According to Reese, the Restatement's goal was to state narrow, precise, definite rules in areas such as status, corporations, and property where some consensus existed among courts as to factors to be considered, while retaining broad, flexible rules in areas of contracts and torts which would lead courts to sound results. When considering the validity of out-of-state marriages, the Restatement (Second) directs courts to consider the law of the state with the "most significant relationship to the spouses and the marriage" to the issue involved in the particular case. What state has the "most significant relationship" is determined by consulting the factors in  6. Having determined which state has this "most significant relationship," next using  283(2), the court will then consider the marriage to be valid if it was valid where celebrated "unless it violates the strong public policy" of the state with the most significant relationship to the marriage. Reese notes that the primary values involved are protection of the expectations of the parties, who must have intended to enter into a valid marriage, and recognition of the general policy favoring validation of marriages. The Second Restatement, although clearly tending toward validation as a general rule, also attempts to protect "the interest of a State in not having its domiciliaries contract marriages of which it disapproves" and would defer to the domiciliary state, as the state with the most significant relationship to the couple, to consider whether a given marriage violates its public policy. Again, this analysis potentially leaves the court significant discretion in determining if such a strong public policy exists and what it is. 4. Leflar's choice-influencing considerations Finally, Robert Leflar's "choice-influencing considerations" theory attempted to focus on those factors that influenced courts in their choice-of-law analysis. Leflar's considerations include: (1) predictability of result, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. The theory is extremely flexible and allows courts to apply a law that the other theories would not permit but which would be appropriate in the case. The "better rule of law" consideration- -one that finds no parallel in  6 of the Second Restatement--is the one that has proven most controversial, due to fears that it would lead courts to give inadequate deference to the forum state's legislation or that it would lead to an uncritical application of forum law. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 280--------------------------------- Leflar indicated that "justice in the individual case" is the ultimate result to be achieved in choice-of-law cases. He believed that the better law would be the one that upheld a "fair transaction entered into by the parties in good faith," including marriages. Leflar did recognize that looking to the "better rule" might lead judges to the forum's own law, especially if foreign law might "interfere with fundamental local policies." It is evident that the search for the better rule of law may lead a court almost automatically to its own lawbooks. The idea that the forum's own law is the best in the world, especially better than fancy new sets of laws based on such nontraditional approaches as research and policy analysis, is unfortunately but understandably still current among some members of our high courts.27 He found an automatic preference of forum law to be unjustifiable and believed that judges could appreciate when their forum law was anachronistic, behind the times, or a "drag on the coat tails of civilization."28 He referred to Sunday laws, fellow-servant rules, and married women's incapacity to contract as illustrations.29 Archaic laws should yield to more progressive ones, thereby serving one of choice-of-laws' functions as "growing pains for the law of a state, at all events in a federation such as our own."30 When a court finds itself faced with a choice between such anachronistic laws still hanging on in one state, and realistic practical modern rules in another state, with both states having substantial connection with the relevant facts, it would be surprising if the court's choice did not incline toward the superior law. A court sufficiently aware of the relation between law and societal needs to recognize superiority of one rule over another will seldom be restrained in its choice by the fact that the outmoded rule happens still to prevail in its own state. One way or another it will normally choose the law that makes good sense when applied to the facts.31 Leflar believed that judges were "perfectly capable" of preferring rules of law that "make good social-economic sense for the time when the court speaks."32 Judges concerned with "justice in the individual case" and "protection of justified expectations of the parties" would prefer the better rule of law.33 It seems likely that judges considering these factors would recognize our couple's marriage in Hawaii. 5. Considering marriages by same-sex couples under these approaches Regardless of the approach used by any particular state, advocates will find significant general support for validation of our same-sex couple's marriage as a starting point in the choice- of-law analysis. Commentators, ranging from Leflar, MacDougal and Felix,34 to Richman and Reynolds,35 and Scoles and Hay,36 tend to treat marriage as a relatively settled area of choice-of- law. None of them, however, has anticipated what will happen when a domicile that does not have equal marriage rights is faced with a challenge to a marriage by same-sex domiciliaries celebrated in a state which recognizes its validity. All start from the overwhelming tendency in choice-of-law cases to validate the marriage.37 Courts tend to validate marriages, using either the First Restatement's lex celebrationis, which recognizes marriage as a status question and looks to the state creating the status to determine its validity, or modern theories which protect parties' expectations, provide stability, and avoid the "hideous" problems that result when one's marital status varies from state to state.38 Considerations such as providing predictability for the parties involved and protecting interstate order would lead to validation, whether considered under Leflar's theory39 or sections 6(a) and (f) of the Second Restatement. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 281--------------------------------- Following the approach often taken in contracts cases, states will validate the marriage to protect the parties' expectations, unless doing so would offend a state's strongly held public policy.40 This exception for a state's public policy recognizes Currie's governmental interest analysis and section 6(b) of the Restatement (Second) in protecting the purpose behind a state's marriage laws. It also fits within Leflar's forum state's interest in applying its law when its domiciliaries leave the state to marry in another state which would permit a marriage that could not be celebrated within their domicile.41 All of these modern theories leave it to the court to consider the strength of the domicile's policies underlying particular marital regulations, which will vary from state to state although based on similar regulations and prohibitions.42 Thus, to determine whether our couple is validly married, most courts will find that it is "(a) the whole law of the domicile, including its conflicts rules, that we should look to in the first instance; and (b) its conflicts rules will ordinarily refer the question to the law of the place of performance, which will usually sustain the marriage; but (c) in some cases its reference will be to its own internal marriage laws."43 But what result? The tendency to validate the marriage, which all commentators recognize as extremely strong,44 will be countered by the overwhelming homophobia existing in the judiciary today.45 Courts will be able to refuse recognition of our couple's marriage by choosing to group it with cases of incest and polygamy which are the most frequent examples of invalidity.46 Perhaps a more exact match would be miscegenous marriages, which are conceptually more similar to marriages by same-sex couples and offer more compelling and resonant analogies and moral lessons. Questions 15-18 ask you to determine what theory your state uses, whether it has used the theory in deciding any out-of-state marriage cases, and if it has not, how the reasoning it has used in other cases applying its chosen choice-of-law theory can be predicted to apply in marriage cases of same-sex couples. IV. FULL FAITH AND CREDIT ARGUMENTS UNDER THE U.S. CONSTITUTION "If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom." - Justice Robert Jackson47 The Constitution specifically declares what Americans have come to expect, that this is one country and you do not shed your rights as you cross a state border: Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. And the Congress may by general laws prescribe the manner in which such Acts, Records and Proceedings shall be proved and the Effect thereof. U.S. Const., Art. IV,  1. Successfully establishing that the Full Faith and Credit Clause requires all states to recognize a marriage legally contracted in another State would yield the most sweeping possible outcome, and, as a constitutional holding, the one most immune from legislative tampering. We believe that full faith and credit recognition is mandated by the plain meaning of the Full Faith and Credit Clause, and by basic federalist imperatives that unite this into one country and permit us to travel, work, and live in America as we have come to today. Simply put, all Americans, gay and nongay alike, would be best served by requiring full faith and credit for marriages validly contracted in any U.S. state. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 282--------------------------------- a. Applying the Full Faith and Credit Clause Marriage qualifies for recognition under each prong of the Full Faith and Credit Clause, partaking as it does of each of the three categories: public Acts, Records, and judicial Proceedings:  Creation of a marriage is a "public Act" both because it occurs pursuant to a statutory scheme, and is performed in most states by a public or legally-- designated official, and because the marriage is itself an act -- a res, a thing or status itself created by a State (which thus acts).  The marriage certificate is the "Record" of that res, recording (with delineated legal effect) that a marriage has been validly contracted, that the spouses have met the qualifications of the marriage statutes, and that they have duly entered matrimony. (Along with marriage certificates, analogous public records of even lesser consequence, ranging from birth certificates to automobile titles, have been accorded full faith and credit).  Finally, celebrating a marriage is arguably a "judicial Proceeding" in at least those sixteen states in which judges, court clerks, or justices of the peace officiate. Perhaps more important, marriage partakes of important elements of a "judgment," the state "act" or "judicial Proceeding" that has received with least question the greatest "full faith and credit" from the Supreme Court.48 Application of the Full Faith and Credit Clause to require recognition of marriages is consistent with the intent of the Framers and with Supreme Court precedent. The Court has stated that the Full Faith and Credit Clause altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation, in which rights judicially established in any part are given nationwide application. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).49 The Supreme Court has never ruled on the issue of whether marriages must be accorded Art. IV,  1 respect, but state courts and lower federal courts often have, even in instances where the marriages would not be recognized under the laws of the forum state.50 The Supreme Court's silence on the full faith and credit due marriage reflects, we believe, both the county's history of racism and aversion to interracial marriage,51 as well as the resultant general neglect of the Clause itself52 -- burdens our adversaries should be forced to carry. If they prevail, those opposing recognition of same-sex couples' validly-contracted marriages ineluctably stand to create a legal and practical nightmare, whereby Americans have to get their "marriage visa" stamped when they cross a state border, or where they (or their parents) are simultaneously married and unmarried in different reaches of the country. Such a situation is simply untenable, both in terms of federalism and the meaning and expectations around marriage, itself a fundamental right.53 b. The Full Faith and Credit Clause's Implementing Statutes Congress has implemented the Full Faith and Credit Clause by means of 28 U.S.C.  1738, 1738A, 1739 ("the Statutes"). Because the Statutes are not part of the Constitution, they can, of course, be altered by Congress. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 283--------------------------------- Section 1738 provides, in part: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of [such jurisdiction] from which they are taken. This statute is most notable for clarifying that full faith and credit obligations apply to all courts in the United States, thus requiring federal courts also to give complete faith and credit to State acts, records and judicial proceedings. The Statutes elaborate on the meaning of "full-faith and credit" by defining it as the same faith and credit given by law and usage in the courts of the state producing the act, record, or proceeding. For example, other states must accord a marriage license issued in Hawaii the same weight and consequence that certificate receives in Hawaii. The U.S. Supreme Court first applied the principle of according full faith and credit to out-of-state acts, records, and proceedings in the context of judgments. For example, to determine what full faith and credit judgments should receive "[i]t remains only then to inquire in every case what is the effect of a judgment in the state where it is rendered."54 But full faith and credit is not limited to judgments; over time the Court has extended the same analysis to other acts, records, and proceedings.55 In each instance, a court in the forum state must accord the act, record, or proceeding the same effect it has in the state where issued. By statute Hawaii regards a marriage certificate issued pursuant to its marriage law to be prima facie evidence of a validly contracted marriage.56 Therefore, the courts of all other states must also recognize the certificate as prima facie evidence of a validly contracted marriage.57 c. Other Constitutional Grounds A State's refusal to recognize a marriage validly contracted under the laws of Hawaii would place a direct and tangible obstacle in the path of interstate migration and burden people's now-not-merely-abstract right to marry, thus implicating other constitutional provisions relating to due process, the right to travel and move freely throughout the nation, equal protection, interstate commerce, and privileges and immunities,58 as well as the fundamental right to marry itself. For example, a married couple in Hawaii who wished to travel in or to another state would essentially have to choose between their marriage and their right to travel. The rights to marry and to have that marriage recognized are of fundamental importance, both in and of themselves,59 and in part because marital status includes substantial economic and practical protections and benefits, upon which may depend the couple's ability to live as they want, raise children as they want, or even subsist. By refusing to recognize a couples's marriage, a State would, for example, "unduly interfere with the right to 'migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629 (1969);60 see also Edwards v. California, 314 U.S. 160 (1941)61; Crandall v. Nevada, 73 U.S. 35 (1867).62 Whatever cluster of constitutional grounds ultimately proves successful, it is clear that those opposing recognition of same- sex couples' marriages are advocating a position that could do great damage not only to the individual couples and children involved, but also to ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 284--------------------------------- the institution of marriage, family relationships, and the links and mobility vital to our federal union.63 For all these reasons, the position that the Constitution mandates full faith and credit for validly contracted marriages is right and should be developed. Questions 19-22 ask for your research on how your state has interpreted the full faith and credit clause, whether its interpretations support the argument that marriage comes within the clause's protection, and whether it has decided any out-of- state marriage cases using the full faith and credit clause. You should also collect and discuss any treatment of the other constitutional theories suggested above. V. Summary and Conclusion We want to repeat our thanks to you for volunteering to participate in this research project. We believe that we have a window of about 12-18 months before the Hawaii Supreme Court will ultimately decide whether same-sex couples can marry in Hawaii. By using this time effectively, we will be prepared, both legally and politically, to protect equal marriage rights for same-sex couples returning from Hawaii to a potentially hostile domicile. This research project will not be successful without your help.  If you know of others who can assist with this project, or if you have questions while completing the checklist, please contact: Professor Barbara Cox, California Western School of Law, at (619) 525-1496, or Evan Wolfson, Senior Staff Attorney and Director of the Marriage Project, Lambda Legal Defense & Education Fund, at (212)-995-8585. Responses and supporting materials should be mailed to: The Marriage Project Legal Clearinghouse Lambda Legal Defense and Education Fund 666 Broadway, 12th Floor New York, New York 10012 ENDNOTES 1. See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts that marriage statute "intended to foster and protect the propagation of the human race through male-female marriages"). 2. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor can the legislature alter the outcome (notwithstanding legislation such as that it adopted in June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional amendment. 3. As among non-gay Americans, there is a vast demand among lesbians and gay men for the equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community Critique," 21 N.Y.U. Rev. of L. & Soc. Change ____ (1995) (forthcoming). 3. For a fuller discussion of these and other issues, see the materials identified in the bibliography of equal marriage rights maintained by Lambda; see also Barbara J. Cox, "Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 285--------------------------------- When We Return Home?," 1994 Wisc. L. Rev. 1033; Deborah M. Henson, "Will Same-Sex Marriages Be Recognized in Sister States?: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin," 32 U. Louisville J. Fam. L. 551 (1994); Evan Wolfson & Gregory v. S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming); Jennifer Gerarda Brown, "Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage," 68 S. Cal. L. Rev. ___ (1995) (forthcoming); Joseph W. Hovermill, "A Conflict of Laws and Morals: The Choice of Law Implications of Hawaii's Recognition of Same-Sex Marriages," 53 Md. L. Rev. 450 (1994); Thomas Keane, "Aloha, Marriage? Constitutional and Choice of Law Arguments of Same-Sex Marriages," 47 Stan. L. Rev. 499 (1994). 4. Some commentators object to the idea that marital status is "universal" and believe that one's marital status should be determined on an issue-by-issue basis, after considering the policies behind each particular incident of marriage. David E. Engdahl, Proposal for a Benign Revolution in Marriage Law and Marriage Conflicts Law, 55 Iowa L. Rev. 56, 108-10 (1969); Hans W. Baade, Marriage and Divorce in American Conflicts Law: Governmental-Interests Analysis and the Restatement (Second), 72 Colum. L. Rev. 329, 356-57 (1972); J. David Fine, Application of Issue Analysis to Choice-of-Law Involving Family Law Matters in the United States, 26 Loyola L. Rev. 31 (1980); Reese, supra note 23, at 952, 965. This analysis conforms to the factual reality of how most cases arise. The problem with this analysis in our situation, however, is that our couple is concerned about their "status", that is, whether, in fact, they are married for all purposes. Some courts have resolved the choice-of-law problem by finding a person to be a spouse for some purposes, for example intestate succession, but not for others, such as cohabitation. See, In re Dalip Singh Bir's Estate, 83 Cal. App. 2d 256, 259-60, 188 P.2d 499, 502 (1948)(public policy not affected by dividing property between polygamous wives validly married abroad, but would be affected by cohabitation in the state); Miller v. Lucks, 203 Miss. 824, 832, 36 So. 2d 140, 142 (1948)(interracial couple's marriage valid for intestate succession but would not be recognized for in-state cohabitation); and other cases cited in Engdahl, at nn. 218-226 and accompanying text. This piecemeal response is unacceptable. Litigating marital recognition for a specific incident of marriage after one spouse had already died, as occurred in the above cases, is a legitimate exercise. In such situations, considering the policies behind each incident could more easily lead to recognition of the marriage, where recognition universally would be denied, because the policy behind granting the incident would not "offended" by recognizing the marriage. But if our couple is denied the opportunity to determine their "universal" marital status for all incidents of marriage, they must relitigate their marital status repeatedly as they request recognition of their marriage for each incident. This is an untenable prospect and would be unacceptable for other couples. In fact, our couple may choose to bring a declaratory judgment action upon returning to their domicile to determine their marital status for all purposes. See Reese, supra note 23, at 953. 5. Id. at  6(2). Those factors include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of the parties' justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Id. 6. Leflar, 41 N.Y.U. L. Rev. 267, 271 (1966), states that if the forum's legislature has enacted a choice-of-law statute, forum courts will follow it, once they determine what it means. Reese also notes that a marriage validation statute, such as  210 of the Uniform Marriage and Divorce Act, would require a court to uphold a foreign marriage. Reese, 26 Int'l & Comp. L.Q. 952, 963. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 286--------------------------------- 7. William M. Richman and William L. Reynolds, Understanding Conflict of Laws  116 at 362 (2d ed. 1993). 8. Id. 9. Id. 10. Id. 11. Robert A. Leflar, Luther L. McDougal III, and Robert L. Felix, American Conflicts Law  220 at 605 (4th ed. 1986). 12. Id. 13. Colo. Rev. Stats. Ann. 12-2-112 (West 1991). 14. Uniform Marriage and Divorce Act  210, 9 U.L.A. 176 (1987). 15. Id. 16. Ill. Ann. Stat. ch. 750, para. 5/216 (Smith-Hurd 1993); Mass. Gen. Laws Ann. ch. 207  10 (West 1994); Vt.Stat. Ann. tit. 15  5 (1993); Wis. Stat.  765.04 (1993). 17. Vt. Stat. Ann. tit. 15  5 (1993). 18. First Restatement 121. For cases applying this rule, see Fine, 26 Loy. L. Rev. 31, 37 n.11 (1980). 19. First Restatement 121, comment d. Section 131 applies to remarriage after divorce and section 132 applies to marriages void under domicile law. Id. 20. Johnson, 38 N.D. L. Rev. 442, 456 (1962). 21. Charles W. Taintor II, Marriage in the Conflict of Laws, 9 Vand. L. Rev. 607, 615 (1956). 22. First Restatement  132, comment b. 23. Id. at comment c. Taintor, 9 Vand. L. Rev. 607, 625 (1956), concludes that only when a state declares a marriage will be void does that state express "a strong enough public policy to require the inference that it makes extra-state ceremonies ineffective...." Taintor was describing the state of the law under the First Restatement which was in effect almost universally at the time of that article. Thus, only those First Restatement states that expressly prohibit same-sex couples from marrying could even begin to claim that they have sufficiently declared that these marriages are odious within the meaning of  132(c). 24. Additionally, section 134 could be used by states that did not want to recognize marriage of same-sex couples not originally their domiciliaries but who moved to that state after their marriage. Section 134 allows one state to refuse to extend any particular incident of marriage to a couple if it would find it sufficiently offensive to public policy to do so. 25. See Taintor, supra notes 259, 290 and 293; and Johnson, supra note 183. 26. These articles are collected in Currie's Selected Essays on the Conflict of Laws (1963). ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 287--------------------------------- 27. Leflar, 41 N.Y.U.L. Rev. 267, 298 (1966). 28. Id. at 299. 29. Id. at 299, n.113. 30. Id. (citing Paul A. Freund, Chief Justice Stone and the Conflict of Laws, 59 Harv. L. Rev. 1212, 1216 (1946)). 31. Id. 32. Leflar, Conflicts Law: More on Choice-Influencing Considerations, 54 Cal. L. Rev. 1584, 1588 (1966). 33. Id. 34. Leflar, McDougal, and Felix, American Conflicts Law  219-21 (4th ed. 1986). 35. Richman and Reynolds, Understanding Conflict of Laws  116 (2d ed. 1993). 36. Scoles and Hay, Conflicts of Law  13.1-13.18 (2d ed. 1992). 37. Richman and Reynolds, supra note 32, at  116 at 362. 38. Id. 39. Leflar, McDougal, and Felix, supra note 31, at  220 at 605. 40. Richman and Reynolds, supra note 32, at  116 at 363. 41. Leflar, McDougal, and Felix, supra note 31, at  220 at 606. 42. Id. 43. Id. See also Williams v. North Carolina, 317 U.S. 287, 298 (1942) which states: "Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders." 44. Leflar, McDougal, and Felix, supra note 31, at 605, Richman and Reynolds, supra note 32, at  116 at 362, and Scoles and Hay, supra note 33, at  13.5 at 436. 45. See Rhonda R. Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799 (1979). 46. Scoles and Hay, supra note 32, at  13.5 at 436. 47. Estin v. Estin, 334 U.S. 541, 553 (1948) (Jackson, J., dissenting). 48. Experts agree that judgments receive the most immediate, unquestioned full faith and credit. See, e.g., Lea Brilmayer, "Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context," 70 Iowa L. Rev. 95, 97 (1984). 49. Magnolia was partially overruled on other grounds. Thomas v. Washington Gas Light ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 288--------------------------------- Co., 448 U.S. 261 (1980). 50. See, e.g., Parish v. Minvielle, 217 So.2d 684, 688 (Ct. of App. La. 1969) (Louisiana does not recognize or permit common-law marriages but must give effect to them when validly contracted in Texas); Guidry v. Mezeal, 487 So.2d 780, 781 (Ct. of Appeals La. 3rd Cir. 1986); Succession of Rodgers, 499 So.2d 429, 495 (Ct. of Appeals La. 2d. Cir. 1986); Commonwealth ex rel. Alexander v. Alexander, 289 A.2d 83, 86 (Pa. 1971) (Jones, J., concurring) (Pennsylvania must give full faith and credit to a Georgia marriage certificate); Orsburn v. Graves, 210 S.W.2d 496 (Ak. 1948) (Arkansas must give full faith and credit to validly contracted Texas common-law marriage). Although New York does not recognize common-law marriages, it gives Art. IV  1 full faith and credit to marriages that are valid under the laws of other states. Thomas v. Sullivan, 922 F.2d 132, 134 (2nd Cir. 1990); Ram v. Ramharack, 571 N.Y.S.2d 190 (N.Y. Sp. Ct. Queens Cty 1991). 51. See Robert H. Jackson, "Full Faith and Credit -- the Lawyer's Clause of the Constitution," 45 Colum L. Rev. 1, 7 (1945) (Full Faith and Credit Clause under-invoked in contexts such as marriage because "the slavery question and [Jim Crow laws] had begun to distort men's view of government and of law. Talk of 'state sovereignty' became involved in the issue."). 52. Id. at 3 (former Supreme Court justice observes that the Full Faith and Credit "[C]lause is a relatively a neglected one in legal literature.... The practicing lawyer often neglects to raise questions under it, and judges not infrequently decide cases to which it would apply without mention of it."). Indeed, the whole idea of enforceable rights is itself relatively new, as is the constitutionalization of family and marriage law, both largely arising since the heyday of non-recognition cases. 53. Thus, even more than developing any technical legal argument, it is critical that we collect and explain evocative real life examples of how burdensome, or indeed impossible, it would be to have the status of one's marriage, or one's parents' marriage, vary from state to state. 54. Mills v. Duryee, 7 Cranch 481, 11 U.S. 481, 484, 5 L.Ed. 411 (1813); see also Wright v. Georgia R.R. & Banking Co., 216 U.S. 420, 429 (1910). 55. See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (holding that "public acts", including plaintiff's corporate charter, must be given same effect as in issuing state). 56. See Haw. Rev. Stat.  527-1 and 572-13 (c) (1985); see also Conn. Gen. Stat. Ann.  46b-35 (1958). For a list of states statutorily prescribing what full faith and credit their marriage certificates should receive see Evan Wolfson and Gregory v. S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming). 57. Another set of issues may arise if states take the position that people do, on the face of it, appear to be married, and then pass statutes giving benefits to different-sex married couples while denying them to same-sex married couples. Challenges might arise under gender discrimination, sexual orientation, and other equal protection theories, as well as due process and fundamental right to marry theories. Naturally, the fall-out in these battles may also prompt reconsideration of the use of marriage as the unique criterion it is today in many contexts. 58. U.S. Const., art. IV, 2. See, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 289--------------------------------- 59. Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 438 (1965); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987). 60. In Shapiro v. Thompson, the Court grounded the right to travel in the Equal Protection Clause and employed strict scrutiny analysis. 61. Edwards involved California's attempt to slow travel into the state by prosecuting citizens who knowingly brought into the state any indigent nonresident. The Supreme Court unanimously upheld the constitutional right to cross state lines, but disagreed on the constitutional provision abridged. The majority relied on the Commerce Clause as prohibiting "attempts...of any single state to isolate itself from difficulties common to all of them...by the single expedient of shutting its gates to the outside world." Id. at 173. The two concurrences found the Privileges and Immunities Clause of the Fourteenth Amendment to be the applicable constitutional text, and focused on individual rights in finding that right to free movement between states is a right of national citizenship. Mobility, Justice Douglas argued in his concurrence, is basic to any question of freedom of opportunity and to prevent the indigent from seeking new horizons would "contravene every conception of national unity." Id. at 181. This takes on even greater force when linked to marriage. 62. In Sosna v. Iowa, the Court applied rationality review in upholding a one-year durational residency requirement for divorce. 419 U.S. 393 (1975). In distinguishing previous cases in which durational residency requirements held invalid, Justice Rehnquist explained that the recent traveler was not "irretrievably foreclosed from obtaining some part of what she sought; her access to the courts was merely delayed." Id. The Court's distinction seemed to turn on the perceived significance of the burden on the right to interstate migration. In the Court's view a "mere" one-year's delay in securing a divorce was not a sufficient "penalty" on travel as to merit strict scrutiny. On the other hand, in Boddie v. Connecticut, the Court held that Connecticut could not, consistent with the obligations imposed by the Due Process Clause, deny access to a divorce court based on ability to pay a fee. 401 U.S. at 380. A State's refusal to recognize a same-sex couple's marriage from Hawaii, would penalize, not merely delay, those individuals who have exercised their right to move freely throughout our country. 63. The best things our opponents have going for them are, of course, (1) people's ignorance and hostility regarding gay issues, and (2) the fact that, as a historical matter, marriage recognition has not largely been treated as a constitutional matter. We must address this latter point by showing (a) the parallels to non-recognition in other circumstances, i.e., race, and (b) the increasing constitutionalization of marriage and other rights. The fact that the Full Faith and Credit Clause was muzzled in the past does not justify its non-invocation in the future, if needed. Cf., e.g., Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (Court reverses precedent of over a hundred years to reestablish view of federalism less deferential to states' rights). WINNING AND KEEPING EQUAL MARRIAGE RIGHTS: WHAT WILL FOLLOW VICTORY IN BAEHR V. LEWIN? A Summary of Legal Issues Evan Wolfson1 BACKGROUND In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage licenses to same-sex couples under the Hawaii marriage law presumptively violates the state ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 290--------------------------------- constitution's guarantee of equal protection. Baehr v. Lewin, 852 P.2d 44, 58, 68 (Haw. 1993). The Court remanded the case to the trial court for strict-scrutiny review as to whether Hawaii's alleged compelling state interest(s) justify the statute's discrimination, and whether the means furthering the asserted interest(s) are narrowly drawn. Id. at 74-75. The State's attorneys have alleged a variety of compelling interests and claimed that the means furthering those interests are narrowly tailored.2 My co-counsel Daniel R. Foley of Honolulu and I are hopeful that the plaintiffs will be able to defeat these allegations on remand. Indications are that the Hawaii Supreme Court is likely to follow through on its earlier holding, and will thus uphold a trial court decision ending the "different-sex restriction" on marriage. Equal marriage rights for same-sex couples would then be a reality in the Nation's fiftieth state.3 Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory.4 The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal recognition of their unions. Despite a powerful cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, these questions are likely to arise: Will these people's validly-contracted marriages be recognized by their home states and the federal government, and will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions? We at Lambda believe that the correct answer to these questions is "Yes." To support that answer, there is much common sense and people's general intuitions both to back us up and for us to tap into: marriage is marriage; it's a fundamental human right; if you're married, you're married; this is one country. However, we also know that, as always, lesbians and gay men will have to fight against the tendency of some in politics and the judiciary to create a "gay exception" to even the clearest principle of constitutional law or fairness. Throughout the country, we must now undertake the public education, political organizing, and just plain asking people and groups for support, while preparing, too, for the litigation that will follow. This summary briefly surveys the legal grounds for gaining nationwide recognition of the marriages same-sex couples contract in Hawaii.5 These grounds include the U.S. Constitution, the common law, and statutory law. Because the better answers are on our side -- and because the legal battle, as well as people's serious consideration of what is involved in marriage and respect for the marriages of gay people, are just beginining to take shape -- it is important we begin to marshal and mainstream our arguments without ceding ground. On this critical front, we have not yet begun to fight. I. THE U.S. CONSTITUTION "If there is one thing that the people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom." - Justice Robert Jackson6 A. The Full Faith and Credit Clause The Constitution specifically declares what Americans have come to expect, that this is one country and you do not shed your rights as you cross a state border: Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State. And the Congress may by general laws prescribe the manner in which such Acts, Records and Proceedings shall be proved and the Effect thereof. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 291--------------------------------- U.S. Const., Art. IV,  1. Successfully establishing that the Full Faith and Credit Clause requires all states to recognize a marriage legally contracted in another State would yield the most sweeping possible outcome, and, as a constitutional holding, the one most immune from legislative tampering. We believe that full faith and credit recognition is mandated by the plain meaning of the Full Faith and Credit Clause, and by basic federalist imperatives that unite this into one country and permit us to travel, work, and live in America as we have come to today. Simply put, all Americans, gay and non- gay alike, would be best served by requiring full faith and credit for marriages validly contracted in any U.S. state. 1. Applying the Full Faith and Credit Clause Marriage qualifies for recognition under each prong of the Full Faith and Credit Clause, partaking as it does of each of the three categories: public Acts, Records, and judicial Proceedings:  Creation of a marriage is a "public Act" both because it occurs pursuant to a statutory scheme, and is performed in most states by a public or legally- designated official, and because the marriage is itself an act -- a res, a thing or status itself created by a State (which thus acts).  The marriage certificate is the "Record" of that res, recording (with delineated legal effect) that a marriage has been validly contracted, that the spouses have met the qualifications of the marriage statutes, and that they have duly entered matrimony. (Along with marriage certificates, analogous public records of even lesser consequence, ranging from birth certificates to automobile titles, have been accorded full faith and credit).  Finally, celebrating a marriage is arguably a "judicial Proceeding" in at least those sixteen states in which judges, court clerks, or justices of the peace officiate. Perhaps more important, marriage partakes of important elements of a "judgment," the state "act" or "judicial Proceeding" that has received with least question the greatest "full faith and credit" from the Supreme Court.7 Application of the Full Faith and Credit Clause to require recognition of marriages is consistent with the intent of the Framers and with Supreme Court precedent. The Court has stated that the Full Faith and Credit Clause altered the status of the several states as independent foreign sovereignties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral part of a single nation, in which rights judicially established in any part are given nation- wide application. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).8 The Supreme Court has never ruled on the issue of whether marriages must be accorded Art. IV,  1 respect, but state courts and lower federal courts often have, even in instances where the marriages would not be recognized under the laws of the forum state.9 The Supreme Court's silence on the full faith and credit due marriage reflects, I believe, both the country's history of racism and aversion to interracial marriage,10 as well as the resultant general neglect of the Clause itself11 -- burdens our adversaries should be forced to carry. If they prevail, those opposing recognition of same-sex couples' validly-contracted marriages ineluctably stand to create a legal and practical nightmare, whereby Americans have to get their "marriage visa" stamped when they cross a state border, or where they (or their parents) are simultaneously married and unmarried in different reaches of the country. Such a situation is simply untenable, both in terms of federalism and the meaning and ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 292--------------------------------- expectations around marriage, itself a fundamental right.12 2. The Full Faith and Credit Clause's Implementing Statutes Congress has implemented the Full Faith and Credit Clause by means of 28 U.S.C.  1738, 1738A, 1739 ("the Statutes"). Because the Statutes are not part of the Constitution, they can of, course, be altered by Congress. Section 1738 provides, in part: Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of [such jurisdiction] from which they are taken. This statute is most notable for clarifying that full faith and credit obligations apply to all courts in the United States, thus requiring federal courts also to give complete faith and credit to State acts, records and judicial proceedings. The Statutes elaborate on the meaning of "full faith and credit" by defining it as the same faith and credit given by law and usage in the courts of the state producing the act, record, or proceeding. For example, other states must accord a marriage license issued in Hawaii the same weight and consequence that certificate receives in Hawaii. The U.S. Supreme Court first applied the principle of according full faith and credit to out-of-state acts, records, and proceedings in the context of judgments. For example, to determine what full faith and credit judgments should receive "[i]t remains only then to inquire in every case what is the effect of a judgment in the state where it is rendered."13 But full faith and credit is not limited to judgments; over time the Court has extended the same analysis to other acts, records, and proceedings.14 In each instance, a court in the forum state must accord the act, record, or proceeding the same effect it has in the state where issued. By statute Hawaii regards a marriage certificate issued pursuant to its marriage law to be prima facie evidence of a validly contracted marriage.15 Therefore, the courts of all other states must also recognize the certificate as prima facie evidence of a validly contracted marriage.16 B. "Conflicts of Law" as a Competing Analysis States resisting recognition of same-sex couples' marriages will probably argue that the Full Faith and Credit Clause does not require them to treat such marriages as an act, proceeding, or record to which they must give effect, but rather allows them to invoke their own marriage laws as applicable. That argument arises because the U.S. Supreme Court has distinguished between the application of the Clause to out-of-state determinations of the legal status, rights, and responsibilities of specific persons, and to choice-of-law decisions in litigation. In my view, the argument is misplaced, as what is at issue is not whose law should govern, but rather what respect must be accorded a res, a marital status, that the couples now possess and embody. In this "conflicts of law" context, the Supreme Court has recognized that full faith and credit does not automatically compel a forum state to subordinate its own statutory policy to a conflicting public act of another state; rather it is for this Court to choose in each case between the competing public policies involved. Hughes v. Fetter, 341 U.S. 609, 611 (1951). The issue in Hughes was whether Wisconsin could under its wrongful death statute deny a cause of action to the estate of an Illinois descendent, where Illinois law would have permitted the suit. In ruling that Wisconsin must allow the suit, the Court balanced ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 293--------------------------------- the strong unifying principle embodied in the Full Faith and Credit Clause looking toward maximum enforcement in each state of the obligations or rights created or recognized by the statutes of sister states against the policy of Wisconsin "against permitting Wisconsin courts to entertain this wrongful death action." Id. The Court noted that "if the same cause of action had previously been reduced to judgment, the Full Faith and Credit Clause would compel the courts of Wisconsin to entertain an action to enforce it" without balancing any policy interests. Hughes, 341 U.S. at 612 n.4. Thus, when state acts, records, or judicial proceedings have been applied to the facts of a particular case to determine the rights, obligations, or status of specific parties, the other states must give those acts, records, or proceedings the same effect they would have at home. The status has been created, the judgment rendered, the record recorded, and rights established -- no question of what legal regime may be invoked is now at pertinent. However, when asked to recognize an unfulfilled or general right or duty based on another state's statute or case law (such as the cause of action that would have been available to Hughes in Illinois), states may weigh the competing interests before deciding which rule of law to apply. Since a marriage -- whether as a certificate, an act, or a judgment-like res -- falls into the category of such adjudications or creations, there can be no policy balancing regarding their recognition. That this is the right result is reinforced by the fact that people could easily have a "judgment" outright were Hawaii to accompany its celebration of marriages with a mechanism whereby married couples could speedily obtain, as suggested by Hughes, a declaratory judgment of marriage. Couples could then return home with their certificate, their newlywed status, their snapshots, and a court order.17 Hence, "conflicts" or "choice of law" is not the proper analysis for cases involving marriage, and the marriage laws of the forum State cannot be used to displace an accomplished act (also recorded and "adjudged") under Hawaii's marriage law. C. Other Constitutional Grounds A State's refusal to recognize a marriage validly contracted under the laws of Hawaii would place a direct and tangible obstacle in the path of interstate migration and burden people's now-not-merely-abstract right to marry, thus implicating other constitutional provisions relating to due process, the right to travel and move freely throughout the nation, equal protection, interstate commerce, and privileges and immunities,18 as well as the fundamental right to marry itself. For example, a married couple in Hawaii who wished to travel in or to another state would essentially have to choose between their marriage and their right to travel. The rights to marry and to have that marriage recognized are of fundamental importance, both in and of themselves,19 and in part because marital status includes substantial economic and practical protections and benefits, upon which may depend the couple's ability to live as they want, raise children as they want, or even subsist. By refusing to recognize a couples's marriage, a State would, for example, "unduly interfere with the right to 'migrate, resettle, find a new job, and start a new life." Shapiro v. Thompson, 394 U.S. 618, 629 (1969);20 see also Edwards v. California, 314 U.S. 160 (1941)21; Crandall v. Nevada, 73 U.S. 35 (1867).22 Whatever cluster of constitutional grounds ultimately proves successful, it is clear that those opposing recognition of same- sex couples' marriages are advocating a position that could do great damage not only to the individual couples and children involved, but also to ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 294--------------------------------- the institution of marriage, family relationships, and the links and mobility vital to our federal union.23 For all these reasons, the position that the Constitution mandates full faith and credit for validly contracted marriages is right and should be developed. II. The Common Law Although there are a number of marriage-recognition decisions invoking the Full Faith and Credit Clause (and none explicitly rejecting it), the vast majority of cases regarding marriage recognition have proceeded under common law. Under that approach, marriages that are validly contracted in one state are given, at least, a strong presumption of validity in all other states. 52 Am.Jur.2d Marriage  3 (1970).24 We must be prepared to make arguments under the common law, although we should not, in doing so, concede the validity of abandoning the Full Faith and Credit Clause and its federalist imperatives. The rule at common law has been that a marriage valid where contracted (under the "lex loci contractus") is valid everywhere (i.e., in the "forum state" or under "lex fori").25 This general rule of course helped obviate the tensions that flow from non- recognition of people's marriages, and thus any need to invoke the Full Faith and Credit Clause. In addition, many states have subscribed to the Uniform Marriage and Divorce Act, or adopted some version of its requirement that all marriages validly contracted in one state will be valid in the forum state.26 Under some common law approaches, this general rule contains a disfavored loophole, what I call the "states' rights 'public policy' exception." Under this exception, although there is a presumption for recognition, states may elect not to recognize a marriage that is valid where contracted if recognition would contradict a strong public policy of the forum state or (in the Second Restatement's formulation) of the state "which had the most significant relationship to the spouses and the marriage at the time of the marriage."27 Restatement, Second, Conflict of Law  283 (1969).28 This states' rights exception arose at least in large part from the historical desire not to have to recognize interracial marriage. Citing the local "public policy exception" -- and ignoring the Full Faith and Credit Clause -- forum states have sometimes refused recognition to out-of-state or foreign marriages that either violated the forum's own marriage laws, or would not have been capable of celebration under those laws, regarding polygamy and bigamy, incest, miscegenation, age, prior divorce, common law marriage, capacity, and proxy marriages. On the other hand, the force of the general rule has often led other courts to recognize marriages that violated the forum's provisions regarding those same subjects.29 In keeping with this mixed pattern, some states undoubtedly will recognize same-sex couples' marriages, while others may attempt to deny recognition, invoking states' rights and adducing a public policy out of miscellaneous anti-gay aspects of their law. There are, of course, no legitimate public policies served by telling a couple that they are not married, or withholding equal protection, respect, and treatment. If they are permitted to pursue this aconstitutional approach, courts would have to determine whether recognition of an out-of-state marriage offends a "strong public policy." They might consider whether the marriage was expressly or impliedly prohibited by local statute or case law,30 and possibly (if seemingly unconstitutionally) whether such marriages are contrary to "morality," "natural law," the traditions of "Christiandom," or "Judeo-Christian teachings."31 They might consider whether the forum state has somehow adopted (or in a meaningful way countenanced) a strong policy of anti-gay discrimination somehow related to same-sex couples' marriages. However, given the strong interests in favor of ensuring that marital status enjoy uniform ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 295--------------------------------- recognition throughout the states -- to protect parties from charges of unlawful cohabitation and adultery, to ensure orderly disposition of property in the event of death or divorce, to protect the interests of children, to facilitate mobility, and generally to protect the expectations of the parties -- states have generally recognized marriages (even if contrary to state law or public policy), refusing to recognize validly contracted marriages only on grounds of strong local public policy. 52 Am.Jur.2d Marriage  80, 82 (1970); Restatement, Second, Conflict of Laws  283 cmt. b (1969). When challenged with a claim of "public policy," advocates should respond with the strongest countervailing policy and justice arguments available under the specific circumstances of the case, as well as general arguments. The policy balancing may occur in the context of the specific right, benefit, or responsibility of marriage arising in the litigation, e.g. intestate succession rights, insurance proceeds, tax status, or maintenance. See Restatement, Second, Conflict of Laws,  283 (1969). Under this approach, advocates may wish to focus on the policy advantages of recognizing the marriage for purposes of the specific incident (e.g. the orderly disposition of descendent's property in a case of intestate succession), and critical elements related to the parties' expectations and fair reliance interests, as well as on recognition of the status of the marriage itself. We might also argue that the "public policy" is not sufficiently strong, as evidenced by how it is expressed (i.e., as a civil rather than criminal statute, or only by inference from other state laws or policies rather than expressly or on point), or that an analogous "public policy" was disregarded in an analogous (albeit non-gay) case. The states' rights exception to the common-law rule of presumptive recognition has not actually been invoked in decades, has received sharp, serious, and sustained scholarly criticism, and should, if necessary, be challenged on constitutional grounds. A product of a shameful past of racism, national disunion, and relatively less mobility, the states' rights exception contradicts the basic premise of federalism that the states cannot treat each other like foreign countries.32 III. Statutory Law The Uniform Marriage and Divorce Act ("the Act") effective in at least seventeen states33 provides that: All marriages contracted within this State prior to the effective date of the Act, or outside this State, that were valid at the time of the contract or subsequently validated by the laws of the place in which they were contracted or by the domicile of the parties, are valid in this State. 9A U.L.A.,  210 (1979). The Act has a great advantage over the common law rule in that its authors explicitly declared: the section expressly fails to incorporate the 'strong public policy' exception of the Restatement and thus may change the law in some jurisdictions. This section will preclude invalidation of many marriages which would have been invalidated in the past. Id., official comment. In interpreting the Act an Illinois court stated that: Out-of-state marriages are recognized as valid, thereby giving full faith and credit to a sister State's laws, if they were valid when contracted. However, the statute further extends what marriages are valid, even if the marriages were not valid where contracted, if the marriages were subsequently validated, either by the law of the State where contracted or by the law of the State where the parties to the marriage were domiciled. By allowing prohibited marriages to become validated, the purpose of the Illinois statute, i.e., to "strengthen and preserve the integrity of marriage and safeguard family relationships" is ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 296--------------------------------- furthered. Estate of Banks, 1994 Ill. App. Lexis 265, (App. Ct. Ill. 5th Dist. 1994) (citation omitted, emphasis added).34 Given that a significant number, indeed a plurality, of states are thus bound (independent of constitutional obligation) to respect marriages celebrated elsewhere, there are ample federalist arguments in favor of having a clean rule based on people's clear expectations regarding marriage and American union. CONCLUSION Most Americans, gay or non-gay, have not yet had to give real thought to the validity or meaning of same-sex couples' marriages and having the equal right to marry. While the initial reaction of many will range from incredulous to hostile, we also have much going for us: the fairness and rightness of respecting family relationships and committed, caring unions; the ability to present these stories in a compelling, positive, warm, and sympathetic manner (asking people how they would resolve this Catch-22); the logic, indeed, imperative of not requiring people to choose between marriage and movement from state to state; the sense that marriage is marriage, and this is one country in which if you are married, you are married; and a number of sound constitutional, statutory, common law, and fairness arguments. Whether under the Full Faith and Credit Clause, other constitutional provisions, or the common law presumption of recognition, we should not give up on this fight before we have even begun to wage it. And we must begin to wage it, not just through legal preparation, but through public education and political organizing. Above all, we must frame the discussion so as to put forward what works for us, while casting our enemies in their true colors -- the same crowd that, hiding behind the banner of "states' rights," has always been hostile to others' equal rights and pursuit of happiness. 1. Senior Staff Attorney at Lambda Legal Defense and Education Fund. With appreciation, I acknowledge the significant assistance of Gregory S. McCurdy and law students Robert Murphy and Camille Massey in the preparation of this summary as well as underlying materials on these topics. 2. See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts that marriage statute "intended to foster and protect the propagation of the human race through male-female marriages"). 3. Because the case involves state, not federal, constitutional questions, the Hawaii Supreme Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor can the legislature alter the outcome (notwithstanding legislation such as that it adopted in June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional amendment. 4. As among non-gay Americans, there is a vast demand among lesbians and gay men for the equal right to choose whether and whom to marry. See, e.g., Evan Wolfson, "Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra- Community Critique," 21 N.Y.U. Rev. of L. & Soc. Change ___ (1995) (forthcoming). Marriage brings with it a host of legal and social benefits and protections otherwise largely unavailable. Id. 5. For fuller discussion of these and other issues, see the material identified in the bibliography of equal marriage rights maintained by Lambda; see also Evan Wolfson & Gregory v.S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming); Jennifer ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 297--------------------------------- Gerarda Brown, "Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage," 68 S. Cal. L. Rev. ___ (1995) (forthcoming); Barbara J. Cox, "Same-Sex Marriage and Choice of Law: If We Marry in Hawaii, Are We Still Married When We Return Home?," 1994 Wisc. L. Rev. 1033; Joseph W. Hovermill, "A Conflict of Laws and Morals: The Choice of Law Implications of Hawaii's Recognition of Same- Sex Marriages," 53 Md. L. Rev. 450 (1994); Deborah M. Henson, "Will Same-Sex Marriages Be Recognized in Sister States?: Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriages Following Hawaii's Baehr v. Lewin," 32 U. Louisville J. Fam. L. 551 (1994); Thomas Keane, "Aloha, Marriage? Constitutional and Choice of Law Arguments for Recognition of Same-Sex Marriges," 47 Stan. L. Rev. 499 (1994). 6. Estin v. Estin, 334 U.S. 541, 553 (1948) (Jackson, J., dissenting). 7. Experts agree that judgments receive the most immediate, unquestioned full faith and credit. See, e.g., Lea Brilmayer, "Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context," 70 Iowa L. Rev. 95, 97 (1984). 8. Magnolia was partially overruled on other grounds. Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980). 9. See, e.g., Parish v. Minvielle, 217 So.2d 684, 688 (Ct. of App. La. 1969) (Louisiana does not recognize or permit common-law marriages but must give effect to them when validly contracted in Texas); Guidry v. Mezeal, 487 So.2d 780, 781 (Ct. of Appeals La. 3rd Cir. 1986); Succession of Rodgers, 499 So.2d 429, 495 (Ct. of Appeals La. 2d. Cir. 1986); Commonwealth ex rel. Alexander v. Alexander, 289 A.2d 83, 86 (Pa. 1971) (Jones, J., concurring) (Pennsylvania must give full faith and credit to a Georgia marriage certificate); Orsburn v. Graves, 210 S.W.2d 496 (Ak. 1948) (Arkansas must give full faith and credit to validly contracted Texas common-law marriage). Although New York does not recognize common-law marriages, it gives Art. IV  1 full faith and credit to marriages that are valid under the laws of other states. Thomas v. Sullivan, 922 F.2d 132, 134 (2nd Cir. 1990); Ram v. Ramharack, 571 N.Y.S.2d 190 (N.Y. Sp. Ct. Queens Cty 1991). 10. See Robert H. Jackson, "Full Faith and Credit -- the Lawyer's Clause of the Constitution," 45 Colum L. Rev. 1, 7 (1945) (Full Faith and Credit Clause under-invoked in contexts such as marriage because "the slavery question and [Jim Crow laws] had begun to distort men's view of government and of law. Talk of 'state sovereignty' became involved in the issue."). 11. Id. at 3 (former Supreme Court justice observes that the Full Faith and Credit "[C]lause is a relatively a neglected one in legal literature.... The practicing lawyer often neglects to raise questions under it, and judges not infrequently decide cases to which it would apply without mention of it."). Indeed, the whole idea of enforceable rights is itself relatively new, as is the constitutionalization of family and marriage law, both largely arising since the heyday of non-recognition cases. 12. Thus, even more than developing any technical legal argument, it is critical that we collect and explain evocative real life examples of how burdensome, or indeed impossible, it would be to have the status of one's marriage, or one's parents' marriage, vary from state to state. 13. Mills v. Duryee, 7 Cranch 481, 11 U.S. 481, 484, 5 L.Ed. 411 (1813); see also Wright v. Georgia R.R. & Banking Co., 216 U.S. 420, 429 (1910). 14. See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (holding ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 298--------------------------------- that "public acts", including plaintiff's corporate charter, must be given same effect as in issuing state). 15. See Haw. Rev. Stat.  527-1 and 572-13 (c) (1985); see also Conn. Gen. Stat. Ann.  46b-35 (1958). For a list of states statutorily prescribing what full faith and credit their marriage certificates should receive see Evan Wolfson and Gregory v.S. McCurdy, "'Let No One Set Asunder': Full Faith and Credit for the Validly Contracted Marriages of Same-Sex and Different-Sex Couples" (forthcoming). 16. Another set of issues may arise if states take the position that people do, on the face of it, appear to be married, and then pass statutes giving benefits to different-sex married couples while denying them to same-sex married couples. Challenges might arise under gender discrimination, sexual orientation, and other equal protection theories, as well as due process and fundamental right to marry theories. Naturally, the fall-out in these battles may also prompt reconsideration of the use of marriage as the unique criterion it is today in many contexts. 17. Professor Henson has also noted this point. 32 U. Louisville J. Fam. L. at 551. There is also an argument to be made regarding the anomaly in requiring states to recognize divorces, but not marriages. 18. U.S. Const., art. IV, 2. See, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 19. Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 438 (1965); Zablocki v. Redhail, 434 U.S. 374 (1978); Turner v. Safley, 482 U.S. 78 (1987). 20. In Shapiro v. Thompson, the Court grounded the right to travel in the Equal Protection Clause and employed strict scrutiny analysis. The Court stated: "Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest." Id. at 638. At issue in Shapiro were state and federal provisions denying welfare benefits to persons who had not resided within the jurisdiction for at least a year. The requirement both deterred and penalized travel. In addition, none of the government's reasons were found to be compelling. The Court said that families could not be "denied welfare aid upon which may depend the ability...to obtain the very means to subsist," solely because they were members of a class which could not satisfy a one-year residency requirement. Id. at 627. In Dunn v. Blumstein, the majority declared that "it is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel...In Shapiro we explicitly stated that the compelling-state-interest test would be triggered by 'any classification which serves to penalize the exercise of [the right to travel]...'" 405 U.S. 330, 339-340 (1972) (quoting Shapiro, supra, at 634). The Dunn Court overturned Tennessee's state and local durational residency requirements for voting, and stated "whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the state must show a substantial and compelling reason for imposing durational residence requirements." Id. at 335. Further, since the residency requirements impinged on the fundamental rights of both voting and travel, they faced a double-barreled assault of strict scrutiny. Likewise, a State's refusal to recognize same-sex couples' marriages from Hawaii would also impinge upon at least two fundamental rights: the right to marry and the right to travel. 21. Edwards involved California's attempt to slow travel into the state by prosecuting citizens who knowingly brought into the state any indigent nonresident. The Supreme Court ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 299--------------------------------- unanimously upheld the constitutional right to cross state lines, but disagreed on the constitutional provision abridged. The majority relied on the Commerce Clause as prohibiting "attempts...of any single state to isolate itself from difficulties common to all of them...by the single expedient of shutting its gates to the outside world." Id. at 173. The two concurrences found the Privileges and Immunities Clause of the Fourteenth Amendment to be the applicable constitutional text, and focused on individual rights in finding that right to free movement between states is a right of national citizenship. Mobility, Justice Douglas argued in his concurrence, is basic to any question of freedom of opportunity and to prevent the indigent from seeking new horizons would "contravene every conception of national unity." Id. at 181. This takes on even greater force when linked to marriage. 22. In Sosna v. Iowa, the Court applied rationality review in upholding a one-year durational residency requirement for divorce. 419 U.S. 393 (1975). In distinguishing previous cases in which durational residency requirements held invalid, Justice Rehnquist explained that the recent traveler was not "irretrievably foreclosed from obtaining some part of what she sought; her access to the courts was merely delayed." Id. The Court's distinction seemed to turn on the perceived significance of the burden on the right to interstate migration. In the Court's view a "mere" one-year's delay in securing a divorce was not a sufficient "penalty" on travel as to merit strict scrutiny. On the other hand, in Boddie v. Connecticut, the Court held that Connecticut could not, consistent with the obligations imposed by the Due Process Clause, deny access to a divorce court based on ability to pay a fee. 401 U.S. at 380. A State's refusal to recognize a same-sex couple's marriage from Hawaii, would penalize, not merely delay, those individuals who have exercised their right to move freely throughout our country. 23. The best things our opponents have going for them are, of course, (1) people's ignorance and hostility regarding gay issues, and (2) the fact that, as a historical matter, marriage recognition has not largely been treated as a constitutional matter. We must address this latter point by showing (a) the parallels to non-recognition in other circumstances, i.e., race, and (b) the increasing constitutionalization of marriage and other rights. The fact that the Full Faith and Credit Clause was muzzled in the past does not justify its non-invocation in the future, if needed. Cf., e.g., Puerto Rico v. Branstad, 483 U.S. 219, 228 (1987) (Court reverses precedent of over a hundred years to reestablish view of federalism less deferential to states' rights). 24. See also, 52 Am.Jur.2d Marriage 80 (1970); Restatement, Second, Conflicts of Laws 283 (1969). 25. Patterson v. Gaines, 6 How. 550, 12 L. Ed. 553 (1848) and see, e.g., Franzen v. E.I. DuPont De Nomours, 146 F.2d 837 (3rd Cir. 1944); 52 Am.Jur.2d Marriage  80 n9 (1970); Krug v. Krug, 296 So.2d 715 (Ala. 1974). 26. The Uniform Marriage and Divorce Act expressly repudiates any "public policy" exception, and thus precludes invalidation of marriages whether or not they could have been celebrated under the law of the forum state. 27. The distinction between "forum state" and "state with most significant relationship" could actually in theory be pivotal, if the "forum state," i.e., the state where recognition is being demanded, is not the state that had the most contacts at the time of the marriage (and thus does not have "standing" under the Restatement to invoke the "public policy exception"). In any case, the Second Restatement identifies factors to be considered in evaluating the strength of an asserted public policy, while emphasizing the strong policy in favor of recognition. 28. The First Restatement contains a much more narrowly worded version of the "state's rights exception," requiring that a marriage be recognized unless it "not only [is] prohibited by statute but [also] offend[s] a deep-rooted sense of morality predominant in the state." At least fifteen states follow the First Restatement. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 300--------------------------------- 29. As my colleague Matt Coles suggests, this fact sets up a case for a "public policy parity" argument: Where recognition was granted in one analogous case, it must be accorded in another, as the "public policy" purportedly justifying denial of recognition of a same-sex couple's marriage is no greater than that previously ignored in recognizing some other marriage (i.e., ones that were miscegenous, "evasive," between parties closely related, etc.). Thus, it is important to be prepared to probe the elements of the claimed "public policy," distinguishing, for example, between an outright prohibition on same-sex couples' marriages and a mere tradition of applying a silent statute solely in favor of different-sex couples. 30. The First Restatement requires that there be explicit statutory prohibition. 31. Such language from the cases, of course, betrays the archaic and offensive roots of the states' rights public policy exception. 32. See Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 313 (1992); see also 45 Colum. L. Rev. 1, 27 (1945) ("[i]t is hard to see how the faith and credit clause has any practical meaning as to statutes if the Court should adhere to" the public policy exception); Gary J. Simson, State Autonomy in Choice of Law: A Suggested Approach, 52 So. Cal. L. Rev. 61, 70 n.51 (1978) (because it prevents consistent results, public policy exception is inconsistent with Full Faith and Credit Clause); Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage 3/14/94 DRAFT at 52 n.157 (on file with Lambda) (article also analyzes economic benefits to state celebrating and recognizing same-sex couples' marriages). 33. See Ariz. Rev. Stat. Ann.  25-112 (1991); Ark. Code Ann.  9-11-107 (Michie 1993); Cal. Family Code  308 (West 1994); Colo. Rev. Stat. Ann.  14-2-112 (West 1989); Idaho Code  32-209 (1993); Kan. Stat. Ann.  23-115 (1992);Ky. Rev. Stat. Ann.  402.040 (Michie 1984); Mich. Comp. Laws  551.271 (1993); Mont. Code Ann.  40-1-104 (1993); Neb. Rev. Stat.  42-117 (1992); N.M. Stat. Ann  401.4 (Michie 1993); N.D. Cent. Code  14-03-8 (1993); S.D. Codified Laws Ann.  25-1-38 (1993); Utah Code Ann.  30-1-4 (1993); Wyo. Stat.  20-1-111 (1993); Walker v. Walker, 44 N.E.2d 937 (1942); Ind. 50 Op. Att'y Gen. 346 (1967); Vital v. Vital, 319 Mass. 185, 65 N.E.2d 205 (1946). Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 3/14/94 Draft, at 49 n.143. See also, e.g., Conn. Gen. Stat. Ann.  466-28 (1958) (marriages contracted in the foreign country where one or both parties are Connecticut citizens "shall be valid" provided (1) both parties have the legal capacity to marry in Connecticut and the marriage is celebrated in conformity to the law of the country of celebration; or (2) the marriage is celebrated in the presence of an American diplomat by ordained clergy). Hawaii's analogous statute is entitled "Contracted without the State." HRS 572-3. 34. Similarly, in determining eligibility for social security benefits the U.S. Department of Health and Human Services recognizes as valid a marriage that would be recognized as valid by the courts of the state in which the wage earner was domiciled. Thomas v. Sullivan, 922 F.2d 132, 136 (2d Cir, 1990), citing 42 U.S.C.  416(h)(1)(A). But see Adams v. Howerton, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982) (court says same-sex couple not legally married under state law, nor would INS be obligated to recognize such marriage for purposes of immigration). Because immigration law has changed since Adams, because it lacked the benefit of cases such as Turner and Baehr, and because it is dicta, the assertions in Adams regarding congressional intent, the meaning of marriage, and the government's obligations are of dubious validity. Overview & Commentary: Bagaz 721/94 El-Al v. Danilowitz and the Future of Sexual Minority Rights in Israel ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 301--------------------------------- Alon Harel1 Introduction This overview and commentary provides some background and interpretive information to help contextualize for American readers the Israeli Supreme Court's recent ruling in El-Al v. Danilowitz. To do so, I shall divide this discussion into three parts. First, I shall sketch the historical background regarding the protection of rights in Israel under a legal system that does not have a written constitution. Second, I shall outline a brief history specifically of the legal treatment of lesbian and gay people in Israel in recent times. Third, I shall explore the importance of the case for the ongoing protection of lesbian and gay rights in Israel. In this way, I hope to provide to the American reader a sense of the importance of this case for the present and future legal protection of sexual minority persons, groups, and interests in Israel. I. The Protection of Rights in Israeli Law: General Historical Background2 The Israeli legal system has gone through a major transformation in recent years. This transformation consists both of changes in the judicial mentality regarding traditional norms of statutory construction and radical statutory changes. Israeli judges have become much more activist in recent years. They are much more willing to interject moral values into legal reasoning: under the influence of Justice Barak, the author of the lead opinion in this case, judicial rulings rely heavily on abstract values such as equality or justice and often avoid detailed, meticulous analyses of statutes or precedents -- a form of analysis that characterized the more traditional justices of the Israeli Supreme Court during the 1950's and 1960's. At the same time, Israeli law has also undergone major constitutional changes in recent years. The most important was a serious and ongoing attempt, beginning in 1992, to establish incrementally a bill of rights by legislating a series of "basic laws" that would enjoy priority over ordinary statutes legislated by the Parliament. This effort was especially significant because it effectively altered key historic premises underlying the relationship between the legislature and the courts. Traditionally, the Israeli legal system was based on the British principle of the sovereignty of Parliament. Hence, Israeli judges, like British judges, possessed no power to invalidate ordinary legislative statutes; the protection of rights was effected either by interpreting such statutes consistently with human rights, whenever feasible, or by invalidating rules and regulations issued by the executive, administrative agencies, or local municipalities. But, under this arrangement based on the British judicial model, courts did not possess the power to invalidate ordinary legislative statutes even when they explicitly violated human rights. This basic legal premise is now gradually changing by the slow but continuing enactment of basic laws. The most dramatic move away from a British model and towards an American model of judicial review was achieved in 1992 with the legislation of Basic Law: Human Dignity and Freedom. This basic law, with some important qualifications, now enjoys constitutional priority over regular legislation of the Parliament. It therefore grants tribunals opportunities to invalidate ordinary legislative statutes that conflict with this basic law. Given the vague nature of some of its sections, this law grants judges enormous powers to scrutinize legislation. The elastic concept of "dignity" in this basic law, Justice Barak has pointed out, provides a basis for wideranging judicial discretion to override ordinary legislation that a court determines infringes on fundamental human rights. As such, this basic law both comports with the Supreme Court's "activist" use of judicial power in recent years generally, and in this case specifically. At the same time, this basic law complicates perceptions of activist judicial activity, which already is decried by some (not necessarily conservative) segments of Israeli society. This basic law therefore exemplifies the contemporary trends and forces that make the El-Al ruling so timely yet so controversial. II. The Legal Treatment of Gays in Israel: A Brief Overview While this general transformation was taking place, and perhaps related to it, the legal ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 302--------------------------------- treatment of gays also has changed dramatically in recent years. Historically, the Israeli criminal code criminalized homosexual inter course between males and numerous other consensual sexual activities. In 1953 and later in 1972, however, the attorney generals of Israel issued instructions not to prosecute for the commission of offenses under this section -- instructions that in fact were followed by the police. Ironically, even though these instructions were relatively liberal and may have been issued for this reason, in retrospect they also may have served to alleviate the build-up of political pressures to change the law in order to eliminate the offense altogether. Thus, several attempts to eliminate the section prohibiting homosexual intercourse altogether, or at least to reduce its punitive sanctions, failed under the strong pressure of the religious parties. It was finally eliminated, but only in 1988. In a major reform of the sections dealing with sexual crimes, the section specifically prohibiting (male) homosexuality was eliminated, but with no explicit reference to its elimination being made during the Parliamentary proceedings. The elimination of this section was deliberately effected discreetly, and with very little attention drawn to it by the press. This quiet tactic facilitated the elimination of the offense by avoiding the active and focused resistance of the religious parties, which can be quite influential in Israeli politics. Four years later, in 1992, the Equal Employment Opportunity Act ("Act") also was revised. Under this revised statute, discrimination in employment relations on the basis of sexual orientation and marital status was explicitly prohibited. Shortly afterward, political activism by the gay movement in Israel forced the military to change its treatment of homosexuals to comply with this revised law. Thus, in the summer of 1993 the Israeli Defense Force regulations were changed and discrimination based exclusively on the sexual orientation of the soldier was prohibited. Accordingly, sexual orientation no longer may be used to exclude soldiers from access to special information, or from jobs that require access to such information. Currently, new bills are under discussion in the Parliament that would expand the legal rights of same-sex partners of gay men and lesbians. Therefore, administrative and legislative reform on the whole has been favorable to sexual minority rights in Israel-- as the judicial activism of this decision illustrates. In closing this brief overview, it bears emphasis that these legal reforms were the direct results of political and social changes in recent years. During the past several years, gay men and lesbians generally have secured greater acceptance and visibility in the media, as well as a more diverse and active social life and a more organized and energetic political movement. As a result, gay men and lesbians in Israel have begun to manifest a vibrant and vocal sexual minority culture. No doubt, the impact of these cultural and societal developments will continue to be felt politically and legally. III. The Case and its Implicaction: A Commentary The petitioner, Jonathan Danilowitz was a steward in the national air lines, El-Al, which has a policy of granting free tickets to the cross-sex partners of its employees. However, El-Al refused to grant the same benefit to Danilowitz' same-sex partner -- a partner with whom Danilowitz has shared his life since 1979. When Danilowitz challenged this refusal, the lower courts ruled in his favor on the basis of the Act. This ruling was affirmed by the Supreme Court in the opinions discussed here. The Supreme Court decision is composed of three opinions. The opinion of the Court was authored by Justice Barak (a very influential activist Justice) and was accompanied by a concurrence from Justice Dorner and a dissent by Justice Kedmi (a traditionalist Justice). Faithful to its recent activist, values-oriented orientation, the Court in this case did not rely only on a strict interpretation of the Act. Instead, it also relied on broader values and principles, which are articulated explicitly in the decision. This values-oriented approach was not due to a lack of textual support for the outcome within the statute itself. On the contrary, a straightforward and traditional "black letter" reading of the Act would naturally (although not inevitably) lead to the same outcome because the statute expressly includes "sexual orientation" in its anti-discrimination provisions. In reading the opinion of Justice Barak, it is remarkable how one barely notices that the decision is about a gay discrimination case. This lead opinion instead focuses on and ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 303--------------------------------- emphasizes the principle of "equality" in general terms and as embodied in the legal system. Justice Barak describes equality as a fundamental value that may be overridden by competing values, but he concludes that the reasons advanced by El-Al are insufficient to override the equality principle in this instance. Consequently, two authoritative legal pillars justified the Court's judgment under Justice Barak's opinion: the fundamental principle of equality generally embodied in Israeli law, and the express provisions of the Act that are addressed specifically to sexual orientation discrimination in employment. Interestingly, it is unclear from this opinion whether in Justice Barak's view the principle of equality in itself would have been sufficient to justify this outcome. Justice Dorner's concurrence may seem at first sight the most progressive of the three opinions. First, unlike Justice Barak, Justice Dorner relied heavily on the historic and contemporary discrimination towards homosexuals and lesbians in Israeli society. Her opinion therefore is more grounded in the specific context of the case than the analysis articulated by Justice Barak. In particular, this opinion's rhetoric is very sympathetic toward gays and lesbians, and the Justice describes sympathetically the liberalization of legislation in various Western countries. More important from a practical perspective is the fact that Justice Dorner explicitly concludes that the express sexual orientation provisions of the Act were unnecessary to establish and protect the right to equality in this type of scenario. Instead, she reasoned that the Act reflected the principle of equality in employment which preceded the statute. Despite this opinion's progressive tone, it is important to mention one important qualification: Justice Dorner's ruling emphasizes that the legal rights of gay men and lesbians should be acknowledged because of the more tolerant societal attitudes towards them. It therefore follows from reasoning that rights need not be recognized unless the society develops tolerant attitudes towards a discriminated group. Under this position, courts generally should follow social norms rather than initiate changes in these norms, which on the whole weakens the legitimacy of judicial activism. In this respect, this concurrence therefore is less promising than that of Justice Barak, who believes that the Israeli legal system endorses a principle of equality that is overarching and independent of prevailing cultural norms and attitudes. Finally, Justice Kedmi's dissent relies principally on what he believes the term "couple" ("zug") means, and especially what it meant biblically. To develop this position, Justice Kedmi employs a variety of biblical sources to establish the point that the term "zug" does not apply to family units composed of two men or two women. Given the emphasis of this dissent, it is important to mention to the American reader that, irrespective of whether this interpretation of the biblical sources is correct, in modern Hebrew the term "zug" generally does apply to same-sex couples This interpretive note is particularly important because traditional Israeli legal canons of statutory construction rely more on current usage than on biblical usages of terms employed in the law. Conclusion What are the prospects for the future given the current legal situation and this recent ground-breaking decision? The prospects are mixed, both judicially and legislatively. This mix results from the combination of several factors: the way in which this decision was framed, the reactions that it has sparked, the ongoing activities of some Israeli legislators, and the growing strength of Israel's lesbian and gay community. Thus, one way or the other, the next few years are likely to be critical. Despite the fact that the high Court's decision in this case could have rested on the relative narrow and conventional grounds of the Act's text, both Justice Barak and Justice Dorner relied significantly on principles of equality embodied in the Israeli legal system as a whole. This decisional emphasis, characteristic of the Supreme Court in recent years, in turn may prepare or signal the grounds for bold steps in areas beyond employment, which are not covered expressly by the Act. For instance, one tool that the courts may use to take bold steps beyond employment settings covered by the Act is the private law doctrine of "good faith," which requires parties to a contract to negotiate and perform its provisions literally in good faith. Thus, in the coming years we may witness the courts taking the lead in reforming ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 304--------------------------------- this area of law and life in Israeli society. On the other hand, this ruling has triggered public criticism of judicial activism generally; ironically, a decision plainly required by a "black letter" reading of the relevant statute was the judicial action that has generated the current backlash against the activism of the Court. Because of these public pressures, activist Israeli judges may decide to be more selective in the scope of civil rights subjects they pursue in the near-term future. And, of course, it is unclear whether courts will choose gay and lesbian subjects as a major subject matter of continuing activism. Ultimately, their choice may depend upon a well-organized gay and lesbian community capable of bringing strong test cases for adjudication On balance, judicial prospects in this area therefore are tentative. Recent legislative developments perhaps raise promising hopes for the future. Most importantly, a very active member of the Parliament, Yael Dayan, recently established a Parliamentary committee on gay and lesbian issues that has recommended, and may lead to, the enactment of legislative reforms. As a result of these recommendations, several new bills are now being prepared for introduction in the Parliament including equalizing pension rights for same sex partners. However, these new bills are not going to pass without resistance: the issue of gay and lesbian rights has become politicized, and it is generally expected that attempts to broaden equality to new areas of civic life for sexual minorities will be resisted by the religious parties and the conservative elements in Israeli society. Therefore, legislative prospects in this area also are presently tentative. In any event, this Supreme Court ruling represents an enormous stride forward in the consolidation of lesbian and gay rights in Israel. It also represents a significant advance in the development of equality as a guiding principle of Israeli law and society. Thus, both as legal precedent and as a measure of progressive cultural attitudes, this ruling will help to empower the growing political strength and sophistication of Israeli sexual minorities. One can expect (and hope) therefore that this brief overview will be outdated in the very near future. ENDNOTES 1.David Ben Gurion Scholar in Residence, University of Southern California Law Center, 1994-95; Lecturer, Faculty of Law, Hebrew University. Thanks to Frank Valdes and Arthur Leonard for helpful comments and to Alex Stein for translating the opinions discussed here. 2. For two recent detailed surveys of the protection of rights under the Israeli legal system, see Zeev Segal, A Constitution Without a Constitution: The Israeli Experience and the American Impact, 21 Cap. U. L. Rev. 1 (1992); Stephen Goldstein, Protection of Human Rights By Judges: The Israeli Experience 38 St. Louis U. L. J. 605 (1994). THE SUPREME COURT OF ISRAEL BEFORE: Aaron Barak, Vice Chief Justice Daliyah Dorner, Justice Yaakov Kedmi, Justice PETITION: Bagaz 712/94 PETITIONER: EL-AL, THE ISRAELI AIRLINES, LTD. versus RESPONDENTS: (1) JONATHAN DANILOWITZ (2) THE STATE INDUSTRIAL TRIBUNAL SESSION HELD: May 4, 1994 ARGUED FOR PETITIONER: I. Vinder; A. Ben-Israel, Adv. ARGUED FOR RESPONDENT (1): S. Dunevitz; O. Kalemarro, Adv. JUDGMENT1 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 305--------------------------------- Lead Opinion of Vice Chief Justice Barak: A collective agreement, as amended by a collective arrangement,2 confers a benefit upon "a spouse" (in a husband and wife relationship) and to "a cohabitant publicly known as a spouse" of an employee. Is this benefit conferred also upon a partner cohabitating with an employee? This is the question brought before us by the present petition. THE BACKGROUND FACTS 1. Respondent is employed as a flight assistant by petitioner (The El-Al Company). Under the collective agreement, every permanent employee is entitled, once in each year, to free (or discounted) flight tickets for himself, as well as for his "spouse (husband or wife)." Under the subsequently arrived at collective arrangement, flight tickets have been conferred also upon an employee's "cohabitant publicly known as his/her wife/husband, if the two live together and maintain common household akin to that of a married couple, and they are legally prevented from marrying each other."3 2. Respondent applied to petitioner (on August 21, 1988) asking it to recognize his cohabitating male partner as his "spouse" for the purposes of obtaining an annual flight ticket, free or discounted. In his application, he clarified that the two maintain both a stable and lasting relationship (as of 1979), manifested, inter alia, by a common household maintained in a jointly purchased and owned apartment. Respondent's application was rejected. 3. Respondent petitioned before the District Industrial Tribunal for a declaratory relief that will uphold his entitlement to free or discounted flight tickets for his male cohabitant. Consonantly with the procedural arrangement mutually consented to by the parties, the Tribunal decided to deal first with the legal issue. This issue was resolved by the Tribunal (Judge Lubotzki and Public Representatives Ozri and Pinchas) as follows: (a) The above-mentioned provision of the collective agreement4 does not confer any right upon an employee's partner, and this did not amount to an illegal discrimination; (b) However, the provision of the collective arrangement conferring a benefit upon legally unmarriable spouses of the employees - but not upon homosexual spouses, which similarly cannot marry each other - does amount to an illegal discrimination. This discrimination was held to be illegal under the Equal Employment Opportunities Act of 1988 ("Act"). According to this Act (section 2) - as amended on January 1, 1992 - "An employer shall not discriminate against his employees, relatedly to employment conditions, because of their sex, sexual orientation, personal status or parenthood." By virtue of this provision, the discriminatory collective arrangement clause was held to be invalid, and the Tribunal went on to settle the outstanding factual issues. 4. El-Al appealed against this decision before the State Industrial Tribunal. This Tribunal (President Goldberg, Vice- President Adler, Judge Eliassoff and Public Representatives Abramovitz, Friedman and Galin) dismissed the appeal, holding that: (a) Respondent does not fall within the relevant definition of the right-holder under ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 306--------------------------------- the collective agreement, as the expression "spouse (husband or wife)" does not cover a homosexual spouse; (b) Nor does respondent fall within the definition of the right-holder under the collective arrangement, as the expression "a cohabitant publicly known as his/her wife/husband" - properly understood within its context - also does not cover a homosexual spouse; (c) Yet, this state of affairs constitutes an illegal discrimination on the basis of sexual orientation, which violates the principle of equality, as laid down by the Equal Employment Opportunities Act. Under this Act (as amended in 1992) respondent is accordingly entitled to the employment benefit of which he was discriminatorily deprived, as of January 1, 1992.5 5. The present petition challenges the above decision of the State Industrial Tribunal.6 El-Al (petitioner) asks us to determine that its refusal to provide respondent with flight tickets for his male cohabitant does not constitute an illegal discrimination under the Equal Employment Opportunities Act. ... Respondent urges us not to interfere with the decision reached by the State Industrial Tribunal ... THE INTERPRETIVE FOOTING 6. Respondent's claim can be supported by two alternate legal arguments. According to one of them, the entitlement in question, provided for by the collective agreement and arrangement - on their proper interpretation - extends not merely to heterosexual, but also to homosexual spouses. Respondent's right to flight tickets would accordingly be a contractual inner- textual right. The legal meaning of the text that upholds this right would thus be preferred over its other linguistic meanings. 7. This proposition was rejected by the State Industrial Tribunal. This Tribunal stated that "in our case, the parties to the collective agreement have explicitly indicated lack of intention to include homosexual partners within the definition of a `spouse;' the words `husband or wife,' attached to this definition is a clear manifestation of the parties' intention to cover by their agreement `spouses' stricto sensu only." As for the expression "a cohabitant publicly known as his/her wife/husband," which appears in the collective arrangement, the Tribunal held that it was similarly attached to "husband/wife," a linguistic usage evidencing the parties' intention not to extend the entitlement in question to homosexual spouses. THE STATUTORY FOOTING 8. According to another legal argument - which was adopted by the State Industrial Tribunal - respondent's entitlement stems from the anti-discrimination provisions laid down by the Equal Employment Opportunities Act. This entitlement is conditioned upon the finding of a prohibited discrimination in the whole contractual arrangement between El-Al and its employees, which raises two distinct issues: (a) Does this arrangement discriminate against employees on the basis of sexual orientation?; (b) What is the remedy that an employee discriminated against is entitled to? 9. In his arguments before us, respondent decided not to pursue the idea of basing his claim ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 307--------------------------------- on the `interpretive footing,' which could have presented a complex legal problem [citing Israeli case-law and Bowman & Cornish, 92 Colum.L.Rev. 1164 (1992); Elbin, 51 Ohio State L.J. 1067 (1990)]. I shall therefore now turn to the 'statutory footing.' THE RIGHT TO EQUALITY AND ITS INFRINGEMENT 10. Equality is a fundamental constitutional principle of Israeli law [citing the case-law]. 11. In Israel, the equality principle is anchored in a number of normative frameworks. First, it is a case-law principle, a fruit of the "Israeli common law" which has been recognized and developed by Israeli courts. This principle is projected upon every piece of legislation and is applied as an interpretive standard [citing the case-law]. 12. Second, the equality principle is anchored in Israeli statutes. Its birth was manifested by the Declaration of Independence.7 Its continual life is manifested by statutes which provide for the maintenance of equality in particular settings [citing as examples various statutes aimed at equalizing women's rights; a statute prohibiting discrimination by an employment-arranging agency ran by the State; a statute providing for affirmative action in favor of female candidates for directorial posts in governmental companies]. Another statute - relevant to our case, which will therefore be dealt with separately - is the Equal Employment Opportunities Act. The culmination point reached by the equality principle is manifested by the Basic Law: Human Dignity and Freedom, which recognized the right to equality as a constitutional right that trumps ordinary statutes [citing from the case-law on this point]. 13. It should, however, be noted that the right to equality is not an absolute right. Like any other human right, this right can be balanced against other interests, which would determine its boundaries [citing case-law]. Limitations on the equality principle can be imposed only when they fit the values of the State of Israel, and when they have been enacted for a proper purpose and are not excessive [as prescribed by section 8 of the Basic Law: Human Dignity and Freedom]. 14. Our factual starting point is that people differ from each other [citing case-law]. The equality principle should be understood against this background. Its meaning is equality under the law and - as far as differences between human beings are concerned - neutrality of the law. This entails equality in exercising freedoms. This also entails equality of opportunities. This provides for equal application of the normative-legal order to all individuals, despite the differences existing between them as a matter of fact. The equality principle does not, however, require that a uniform law be applied in relation to everyone. This principle does not outlaw, ipso facto, differentiated legal treatments, when applied to different people. This principle requires that any differentiation in legal treatment be supported by good reasons. It thus recognizes the possibility of good reasons justifying a differentiated legal treatment. Discrimination - the antipode of equality - will therefore take place only when no such reasons can be found [citing case-law]. 15. [I]n the present case, El-Al decided to provide a benefit - in the form of flight tickets - to each employee for the use of his spouse, i.e., for the use of a person with whom he lives and maintains a common household, whom he leaves when he flies away from home, and to whom he returns at the end of his work. This is the standard common to both married spouses and unmarried cohabitants. The purpose of this benefit is not to strengthen the institution of marriage. Indeed, the benefit is conferred also upon an employee's cohabitant even when he/she is married to someone else. The benefit is thus provided to a lasting ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 308--------------------------------- "living- together" partnership which displays a strongly tied-up social relationship. It is therefore obvious, in my view, that to take this benefit away from homosexual spouses constitutes a discriminatory violation of the equality principle. The differentiating reason standing behind this decision has to do with sexual orientation. But this latter factor is both immaterial and unfair. Is it less painful for a person to leave a homosexual spouse than it would have been if his spouse's sex were different? Does a homosexual cohabitation differ from a heterosexual one, as far as partnership, unity and a social-cell relationship are concerned? 16. It is arguable that homosexual and heterosexual relationships are fundamentally different, an argument which strikes me as problematic, but it need not to be resolved in this case. I am therefore prepared to proceed from the assumption that in different social contexts differentiation between homosexuals and heterosexuals can be sustained. The question that we are here to resolve is whether this differentiation is relevant to our issue. And our issue is the existence of a partnership, a unity, and a social-cell relationship. To differentiate in this context - as El-Al did - between homosexual and heterosexual spouses amounts to both clear and offensive discrimination. DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION 17. [W]hat are the implications of this discrimination? Any such discrimination is illegal; yet, the gravity of discrimination admits of different degrees, depending on the seriousness of the violation of the equality principle. We, for example, perceive as most severe discriminations motivated by race, religion, nationality, language, ethnicity and age. Our legal system also perceives as necessary to secure equality amongst genders and prevent any gender discrimination [citing case-law]. In the present case, the discrimination was arguably motivated by improper sex-related reasons. But it is also arguable that no such discrimination took place, as El-Al's benefits are conferred equally on men and women. This latter proposition does not strike me as persuasive, but I have no need to determine its validity, as there can be no doubt that respondent was discriminated against on the basis of his sexual orientation. Such discrimination - against both gays and lesbians - is illegal. This conclusion is mandated by the Equal Employment Opportunities Act, section 2 [recites the section and cites a portion of the Knesset debate]. ... Under this provision, sexual orientation is irrelevant to employment, unless the very nature of the job makes it relevant. As far as employment conditions are concerned, an employer ought to display neutrality towards the sexual orientations of his employees. ... This will implement the equality principle. This will keep the employee's privacy protected from intrusions... [restates the El-Al policy and explains once again its discriminatory nature] Perhaps someone at El-Al believes that gay relationships should not be encouraged. This would be a value-judgment, and we are not concerned with this in the present case. ... Findings of discrimination cannot be dependent on the discriminator's way of thinking and desires. Inequality may sometimes be justified by both legitimate and compelling reasons. To provide such reasons is a burden that would be difficult to discharge. This burden has not been discharged in the present case. Nor has it been attempted to be discharged. All that we heard is that gay couples "are different," but this does not eliminate the discrimination [refers to Cameli, 68 Chicago-Kent L.Rev. 447]. REMEDIES FOR INFRINGING THE RIGHT TO EQUALITY 18. Now I move to the second question, which is about the remedy to be granted to an ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 309--------------------------------- employee who was subjected to a discriminatory treatment. Under the contract law, contract provisions that constitute an illegal discrimination are not valid. The fate of such a contract would thus be dependent on the possibility of "severance," i.e., on the possibility to perform an operation on its text that would remove the sick part from the healthy part and thus restore equality and keep the contract alive [cites case-law]. Not susceptible to such an operation, our contractual text is different. If so, what should be our respondent's remedy? 19. One option facially available to us is to deprive all El- Al's employees of the benefit in question. This manifestly unreasonable outcome has not even been argued for by respondent, and rightly so. 20. The appropriate remedy in this case is to determine that respondent is entitled to the benefit in question. This remedy is known in certain legal systems as an "extension of the text" or as "reading in." Each of these concepts is, however, inadequate. The judge does not touch the text at all. He ordains that the equality principle exercises normative superiority over the text and that the text therefore has to surrender to this principle, so that the illegal discrimination can be removed. 21. This remedy is well-known in American law [cites Harlan, J. in Welsh v. US, 398 US 333 (1969) and Bader & Ginsburg, 28 Cl. St. L.Rev. 301 (1979); Miller, 20 Harv. C.R.C.L. L.Rev. 77 (1985); and Califano v Westcott, 443 US 76 (1979)]. 22. The Supreme Court of Canada took the same path, by using the "reading in" rhetoric [cites to Schachter v Canada 93 DLR (4th) 1, 12 (1992)]. 23. Implementing the goals of the constitutional law, such remedies ought to be adopted. They should not however be used mechanistically, without accounting for the difficulties in their implementation, for their impact on the budget, and for the risk of excessive judicial interference which might disturb the constitutional structure. For example, benefits conferred by the law upon a marginal group of people cannot be extended to a large and substantial group. This technique also should not be used in a way that would impose liabilities on the otherwise exempted people, who enjoy a preferential treatment in comparison with others. 24. The constitutional supremacy of this remedy prescribes for its application in the labor law ... [explains this legal hierarchy]. In our case, this remedy would not lead to any of the deleterious consequences listed above. Consequently, respondent is entitled to the benefit in question. Petition dismissed with costs. Concurring Opinion of Justice Daliyah Dorner: 1. Michel Foucault has examined the influence exerted by social norms - which reflect the "acceptable" and the "normal" and which change from time to time and from society to society - upon the law's enforcement. He wrote: The power of social norms is added to other powers - the law and the text - and forces upon them new limitations ... The power of social norms is stronger in a system founded upon formal equality because it introduces into the equality rules individualizing distinctions.8 ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 310--------------------------------- In my view, it is impossible to rule on this petition without considering the changes which have occurred in Israeli social norms in respect of homosexuality. 2. [recites the facts stated by Barak, J. and the dissenting opinion of Kedmi, J.] 3. I agree with the Vice Chief Justice's decision. In my opinion, the Equal Employment Opportunities Act, reflecting the equality principle, did not establish it ab initio. This principle has been and is fully recognized in our case-law [cites case-law]. Therefore, even if the contested benefit was claimed by respondent as from 1989, I would have decided in his favor. Nowadays, Israeli social norms are not unequivocally opposed to homosexuality. If they were unequivocally opposed to it, the Equal Employment Opportunities Act could possibly be interpreted differently, as suggested by Kedmi, J. 4. The equality principle does not operate in a vacuum. The notion of equality is nurtured by accepted social norms [cites English and Canadian cases]. 5. In the past, homosexuality was stigmatized and even criminalized. Homosexuals lost their jobs, were not given employment in areas involving state security and were even barred from raising children. In the U.S.A., they were classified as psychotic and suffered from immigration-related restrictions [citing editorial excerpts from Harv.L.Rev.]. This attitude has gradually changed. Criminalization of homosexual behavior and discrimination of homosexuals have been criticized in the legal literature [citing R. Posner, Sex and Reason, 1992]. Movements demanding equality for homosexuals have been established. Evolving from the 1970s, the prevailing attitude of today is one of liberalism and tolerance. Sexual orientation is now regarded as a person's private matter. ... 6 - 8. [conducts a comparative survey substantiating the above normative and legal changes]. 9. The Israeli law is no exception [refers to the changes in the Israeli Penal Code, according to which homosexual behavior is no longer a criminal offense if consensually conducted between adults; refers to different legal manifestations of the equality principle]. 10. Homosexual and heterosexual spouses undoubtedly differ from each other. Yet, in order to justify their differentiated treatment, the difference between these spouses ought to be relevant to the purpose of the differentiating decision. For example, if the state is interested in promoting child-birth, homosexuals and heterosexuals may be treated differently [cites to Canada v. Mossop (1993) S.C.R. 554, 560]. 11. The equality principle applies primarily to state authorities; and it also applies in employment, both public and private [cites case-law and an article by F. Raday, in Hebrew]. 12. In the present case, the employment benefit was not conferred by the relevant agreements exclusively upon the married spouses of El-Al's employees. This benefit is not intended to support a traditional family. It was conferred upon the employee covering his actual spouse. The latter's gender is therefore irrelevant to this benefit's purpose. Benefits of this kind are part and parcel of the employee's salary, as demonstrated by Professor Elbin (51 Ohio St. L.J. 1067 (1990)). In Israel, these and other benefits (known as "supplementary conditions") often multiply the basic salary. Therefore, to allow such benefits not to extend to homosexual spouses would discriminate against the employee himself. This was demonstrated by Professor Elbin [quotes from the above-mentioned article]. The same applies to our case. To deprive respondent of the disputed benefit would amount to ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 311--------------------------------- an unjustifiable reduction of his salary. For these reasons, I agree that this petition should be dismissed. Dissenting Opinion of Justice Yaakov Kedmi:9 [The dissent focused on:] (1) Agreement with Barak, J. that the collective agreement and arrangement confer the benefit on heterosexual couples only; (2) Disagreement with Barak, J. that this amounts to an illegal discrimination: "... the very notion of 'couple' lies in the couple's ability to unite in carne uno, i.e., in its capability of procreation. To be a 'couple', the couple in question has to satisfy this basic condition. Maintenance of a common household and a stable living- together relationship are not sufficient for becoming a 'couple'"; (3) The meaning of 'couple' should be revised only when society starts perceiving homosexual couples as equally capable of founding basic "social cells," alongside heterosexual cells; (4) Until then - and considering the lack of social consensus surrounding this issue - "homosexual coupleness" should be ruled out as a legally available possibility; (5) To distinguish between homosexual and heterosexual couples is therefore legitimate. I would have allowed this petition. Decided by the majority in accordance with the Vice Chief Justice Barak's opinion. Delivered on November 30, 1994. ENDNOTES 1. This judgment was translated from the Hebrew version by Alex Stein, Visiting Professor, University of Miami School of Law, 1994-95; Senior Lecturer, Law Faculty, Hebrew University. The summary translation at times abbreviates the opinion with bracketed "[....]" comments to facilitate the continuity and clarity of focus on the gay and lesbian issues in the case. Explanatory notes or comments provided by the translator are identified by "A.S." throughout. 2. A "collective arrangement" is an inchoate "collective agreement:" the "arrangement" would become an "agreement" once properly formalized. This labor law distinction had no significance in this case. A.S. 3.This provision is related to various restrictions imposed upon the capacity to marry by religious laws (which form part of the Israeli legal system). A.S. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 312--------------------------------- 4. As it stood prior to its amendment by the collective arrangement. A.S. 5. i.e., as of the day on which this right-conferring amendment was legislated. A.S. 6. This petition sought judicial review, pursuant to the Israeli Supreme Court's jurisdiction. A.S. 7. This declaration is not part of the formal law, but is often invoked as an interpretive tool by the courts. A.S. 8. This passage is also translated from the Hebrew version. A.S. 9. Summary of highlights provided. A.S. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 313---------------------------------