families/marriage

Just had a chance to read in full the Marriage Cases – that is, U.S. Supreme Court’s June 26 judgment in Obergefell v. Hodges – and was struck by the degree to which it upends tradition.

No, not that tradition.

What’s striking is not so much the holding that the Constitution guarantees a right to marry that extends to couples regardless of sex. That result has seemed reside in the it’s-only-a-matter-of-time category for a while now.

What’s striking, rather, is that in reaching this result, the Court explicitly revived an interpretive method that views certain constitutional clauses as interlinked.

‘The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws,’

14th Amendment 2Justice Anthony M. Kennedy wrote for a 5-member majority. He continued:

‘The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.’

In support of this posited “synergy,” Kennedy cited numerous twentieth-century decisions, among them  Loving v. Virginia (1967), Zablocki v. Redhail (1977), and one I find a super teaching vehicle, Skinner v. Oklahoma (1942). He chose to stick close to the family-related subject matter at hand, and so omitted other examples of this method, such as Griffin v. Illinois (1956), requiring the provision of trial transcripts to rich and poor defendants alike. Each judgment evinces more concern for doing justice than for divining a single-clause source from open-ended terms like “due process” and “equal protection.” Some of these decisions also tend not to devote much time to shoehorning facts into “levels of scrutiny” – a judge-created superstructure not found in the Constitution’s text, and not invoked in last month’s Marriage Cases.

Far from aberrational, these developments follow a trend detectable in many constitutional opinions of the last couple decades. It bears echo to other Kennedy opinions, not to mention the duty to govern impartially posited by Justice John Paul Stevens during his many years on the bench. (Kennedy’s view that the Constitution’s framers intended today’s Court to interpret their words in an evolutive manner likewise jibes with writings of Stevens and another retired Justice, David H. Souter.)

Many law schools follow a format that puts the Due Process Clause in Con Law I and the Equal Protection Clause in Con Law II. That division has made for gaps or overlaps in teaching a number of issues. LGBT rights has been one of them. There are others – such as abortion – and one imagines the list will grow with the Court’s overt resuscitation of this method and others subsumed within what Kennedy calls “reasoned judgment.”

Time for those of us in U.S. legal academia to rethink how we teach constitutional law.

kinderLEIDEN – Children, or kinder, has been the watchword these days in this Dutch city, where Leiden University’s been hosting a whirlwind of activities to mark the 25th anniversary of the Convention on the Rights of the Child. A film festival, moot court competition,* art exhibit, and commemoration by Princess Beatrice were just some of the events.

I was honored to take part in “25 years CRC,” a 2-day conference that brought to Leiden hundreds of children’s rights experts, from Auckland to Zagreb and many places in between. Plenary presentations included Corinne Dettmeijer-Vermuelen‘s fascinating comparison of U.S. and Dutch laws against online sexual exploitation of children. Then scholars and practitioners met in early a dozen parallel sessions, where they tackled an array of topics.

The session I chaired featured: Claire Achmad‘s outline of her Ph.D. dissertation, a children’s rights approach to regulation of international commercial surrogacy; Mies Grijn‘s anthropological account of child marriage practices in a village in Java, Indonesia; and Emily Waller‘s discussion of children, sexual violence-related stigmatization, and reparations. A common thread in these talks was the difficulty of drafting, adapting, and enforcing laws meant to be applied in societies marked by changes and cultural variations.

In a session on children and armed conflict, Olga Jurasz explored the treatment of children in cases before the International Criminal Court. Aurélie Roche-Mair followed suit, with an emphasis on the interrelation between the Children’s Convention and the Rome Statute of the ICC. Concluding was Gloria Atiba-Davies, head of the Gender and Children Unit in the ICC Office of the Prosecutor. Together, their presentations underscored the legal and practical challenges to achievement of the goal of ending wartime crimes against children – a goal to which ICC Prosecutor Fatou Bensouda recommitted her office, in her October speech on “Children & International Criminal Justice,” and in a statement yesterday that marked the Convention’s anniversary. It’s a goal to be pursued as her office continues consultations with experts, in the course of developing its Policy Paper on Children.

* Congratulations to the Students of the Law Society of Ireland for winning 1st place at yesterday’s finals. And kudos to Leiden Professors Ton Liefaard and Julia Sloth-Nielsen for the vision and hard work that produced this amazing week.

seanross2Serendipity found my students and I rereading the unvarnished story of Philomena Lee this week, just before the Hollywood film Philomena competes in Sunday’s Academy Awards.

The film is lovely, warmed by on-screen chemistry between Judi Dench, who plays Lee, and Steve Coogan, who plays journalist Martin Sixsmith. Bits of humor between them smooth the sharp edges of Lee’s search for the child she’d given up for adoption many years earlier.

The real story is a bit more raw: “The Catholic church sold my child” reads the headline of a 2009 news article by Sixsmith, published when his book on Lee was released in England. The article recounts how a 1950s Irish family sent Lee, then 18, pregnant, and unmarried, to a Mother and Baby Home at a Tipperary nunnery. There she gave birth. There too she was compelled to put in three years’ labor, and, eventually, to give up the son she’d helped care for till he was a toddler. Sixsmith writes:

‘Early on in the search I realised that the Irish Catholic hierarchy had been engaged in what amounted to an illicit baby trade. From the end of the second world war until the 1970s, it considered the thousands of souls born in its care to be the church’s own property. With or without the agreement of their mothers, it sold them to the highest bidder. Every year, hundreds were shipped off to American couples who paid “donations” (in reality, fees) to the nuns. Few if any checks were made on the suitability of the adopting families – the only condition laid down by Archbishop McQuaid was that they should be practising Catholics.’

seanrossSilence enveloped the decades-long practice. Even International Child Law, the circa-2010 British text that we’re using in my Children & International Law seminar, makes no note of it: though these out-of-Ireland adoptions occurred just an island away, the book’s chapter speaks of 1950s intercountry adoption solely in the context of U.S. adoptions of children born in wartime Korea.

This may change, as Lee has helped found The Philomena Project, committed to push, in Ireland and in the United Kingdom, for legislation that would ease access to adoption information. (credit for undated photos, of the Mother and Baby Home where Lee was placed, courtesy of the Adoption Rights Alliance, which is working with the Project)

The Project calls for justice along the lines of the efforts begun in relation to another tragic Irish institution of the era, the Magdalene Laundries, the subject not only of a 2002 film, but also of a 2011 report by the U.N. Committee Against Torture. To date those efforts have resulted in an official state apology regarding the Magdalenes practices – though not yet the actual award of promised reparations, as a recent post in the Human Rights in Ireland blog detailed.

congressThe 4th of July holiday tends to find me thinking about women and independence. This year’s no different, and a bit of research led to the discovery that it’s a noteworthy centenary: In mid-June 1913, women from all over the world traveled to Budapest for the International Woman Suffrage Congress.

Within a month, leaders of the movement published accounts of the Congress in Jus Suffragii, a globally distributed monthly.  Celebrated were women’s internationalism and solidarity. Delighting in Hungarian authorities’ insistence that the delegates remove their hats, Connecticut native Charlotte Perkins Gilman wrote:

‘Women went about with their heads bare and their hands free.’

Suffrage victories also were celebrated. While the Congress was in session, Jus Suffragii reported, delegate Jane Addams received a telegram telling her that women in Illinois (her home state, and, incidentally, mine) were winning the vote. The Illinois women’s suffrage law would be passed on July 1, 1913 – 100 years ago this week.

sheepEdited from July 1913 onwards by Liverpool-born Mary Sheepshanks (right), the Jus Suffragii periodical was republished by Routledge. In an introduction to that 2003 reissue, Sybil Oldfield wrote that under Sheepshanks’ leadership the periodical

‘covered such controversial and still topical subjects as the age of consent for girls, alcohol control, care of children in need, education for girls, new employment openings for women, trade union rights, divorce law reform, health insurance for mothers, maternity benefits, minimum wages, prostitution, women medical workers, women police, women’s politicians, as well as women’s right to vote and women’s war experience ….’

womens-budapest-program-copyDelegates’ opposition to war was a key issue, at the conference and thereafter. Yet within a year that opposition was voiced within the context of war: July 4, 1914, was the date of burial of an Austrian archduke whose assassination would spark World War I. As noted in an essay available here, the onset of war divided and diverted suffragists. (My earlier comments on Addams and that war are here.) Women in the United States thus would not secure a constitutional amendment guaranteeing them the vote until 1920, 2 years after the war’s end.

(credit for top left 1913 photo of delegates in Budapest and credit for middle right circa-1920s photo Mary Sheepshanks courtesy of N.Y. Public Library; credit for photo below left of 1913 Congress program)

authEmphasis on children marks the Supreme Court opinion invalidating a U.S. law that had defined “marriage” as the union of a man and a woman, and so denied federal benefits to a widow in same-sex marriages that had been recognized by the state of New York. (photo credit)

The harm to such spouses of course was a concern. Citing his 2003 opinion in Lawrence v. Texas, Justice Anthony M. Kennedy wrote in his opinion for the Court:

‘The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.’

He continued:

‘And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’

The opinion later condemned the law on the further grounds that it “brings financial harm to children of same-sex couples,” and that it “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

As noted by Wall Street Journal reporter Jess Bravin, this emphasis was remarkable in part because opponents had argued that the interests of children required continuing bans on gay marriage. Bravin wrote with regard to that argument: “The court turned it on its head.” He added that Kennedy’s account of “concrete harms” that children suffered gave foundation to the theories on which Lawrence was based – an argument that, I argued in this post, drew influence from the views on liberty and equality harbored by the Justice who assigned Lawrence to Kennedy, John Paul Stevens.

In looking for an earlier instance in which the Court had struck a law because it operated to injure children of disfavored parents, Bravin pointed to Levy v. Louisiana (1968), involving the effort by children to recover for the wrongful death of an unwed parent. A more recent example that jumps to my mind is Palmore v. Sidoti (1984), decided fewer than 4 years before then-Judge Kennedy was sworn in as an Associate Justice at the high Court. Stevens took note of this case in a 2005 speech at Fordham Law School:

‘Equally dramatic is the contrast between the final ruling of the unanimous Court in Palmore v. Sidoti and the Court’s reaction to the case when it first appeared on the conference list. The case involved a dispute between divorced Caucasian parents over the custody of their daughter. In the 1980 divorce decree, custody of the three-year-old child was awarded to the mother, who later married an African-American. Without any evidence that the mother had become unfit, the Florida court entered an order transferring custody to the father in order to protect the child from anticipated “social stigmatization.”
‘By a vote of 8-1 – and I am proud that I was the one – the Court denied an application to stay the mandate of the Florida court transferring custody. However, after granting certiorari and hearing argument, we unequivocally held that the effects of racial prejudice, however real, could not justify the removal of an infant child from the custody of her natural mother. Of course, despite the clarity of the Court’s opinion, that is exactly what its earlier refusal to stay the order modifying custody had done.’

sotomayorMy Beloved World is a gem of a memoir. That’s not the least because of who wrote the 300-page volume released this past January. The author is 58-year-old Sonia Sotomayor, who’s served as a Justice of the U.S. Supreme Court since 2009. Her recollections display a candor rare in books by high-ranking public officials.

There is, for instance, her admission of childhood relief that the premature death of her alcoholic father might end conflict and bring stability to her household, as well as her account of the ignorance with which she and her high school sweetheart entered a marriage that would scarcely last through her college years. And there are moving reflections on her subsequent life as a single person. At page 232, Sotomayor tells how various factors, including the Type 1 diabetes with which she’s coped since age 7, influenced her decision not to become a parent:

‘My nephews are all the proof I could have needed of how emotionally satisfying adoption might have been. Still, there remained the fear that I might not be around long enough to raise a child to adulthood. Ultimately, the satisfaction of motherhood would be sacrificed, though I wouldn’t say it was sacrificed to career.’

At the heart of Beloved World are Sotomayor’s stories of growing up in the South Bronx in the ’60s, in a socially conservative, extended family. Many of her relatives had journeyed north from their native Puerto Rico. Family life swirled around their matriarch, Abuelita, the grandmother with a gift for giving love and a penchant for the late-night seance.

This was a world where Spanish dominated – except in the classrooms, where English-speaking nuns kept order by corporal punishment. Sotomayor writes frankly of the routine reality of beatings and fights, in homes and schools alike. She expresses approval that a recent visit back to Blessed Sacrament showed that teachers had adopted “a more nurturing approach since abandonment of the rod,” and then remarks,”Every generation has its own way of showing it cares.” (p. 88)

Her narrative resonates beyond the subculture it describes. Having grown up not many years later among Italian relatives in northwest Chicago, I found much in Beloved World that rang familiar: how acculturation pulled at homeland languages and lifestyles; how workplaces and parishes regulated life more directly than more distant governments; how diabetes or drinking or drugs or disability could bring shame and devastation; how some children managed to succeed in the larger world (often to their families’ bewilderment), while others found failure in every world they inhabited.

Sotomayor returns again and again to this last question of resilience – of how some children move forward even as others stumble. The book’s title hints at her answer: the foremost factor in success is love. Recalling her relationship with Abuelita, Sotomayor writes at page 16:

‘I have come to believe that in order to thrive, a child must have at least one adult in her life who shows her unconditional love, respect, and confidence.’

There is more, Sotomayor makes clear. Given the gift of “selfless love” (p. 254), the child must build on it, must learn to ask help from others. “[D]on’t be shy about making a teacher of any willing party who knows what he or she is doing,” she urges (p. 72). Sotomayor thus provides in Beloved World a string of inspiring stories about how and whom she asked, as well as the often-positive result of her asking for help. (Aspiring lawyers will welcome the consequent practice tips.)

All must be done in service of community. “There are no bystanders in this life,” Sotomayor insists (p.256); to the contrary:

‘Our humanity makes us each a part of something greater than ourselves.’

signIt seems like it was only yesterday that persons who favored marriage equality struggled for broad support. Even in the Left Coast bastion of Berkeley, we who planted “NO ON PROP 8” lawn signs awoke to find them taken, torn, or trashed. “Prop 8” was, of course,  Proposition 8, the ballot initiative that aimed to overturn a May 2008 state supreme court ruling that same-sex couples had a fundamental right to marry; in so doing, Prop 8 aimed to make a ban on such marriages part of the California Constitution. Six months after the initial ruling, on the same day in 2008 that Barack Obama was elected President, the same-sex marriage ban passed with 52% of the California vote. (photo credit)

But that was then, nearly 5 years ago. And now, as the U.S. Supreme Court takes up the constitutionality of Prop 8 and of the federal Defense of Marriage Act, America is in a very different place. Opposition to bans is ascendant in polls. Opponents are found on both sides of the political aisles – not only the lawyers trying the cases, but also the persons lending their names through amicus briefs or public statements. Notable in that last group are current President Obama, who’s moved to a position of support for gay marriage, and former President Bill Clinton, who’s repudiated DOMA though it was he who signed it into law back in 1996.

How these shifts will affect judicial deliberations is anyone’s guess, not the least because of the precise questions before the Court: Read Full Article