News and Happenings

Since the Obergefell v. Hodges ruling in June, I've been posting reactions to media coverage of the case as well as to the opinions filed by the dissenters. But a lot more has been going on in the world of Joe Dunman.

Following the defeat of marriage discrimination nationwide, at least two county clerks in Kentucky have refused to issue marriage licenses to anyone, citing their own anti-gay religious beliefs. In Rowan County, a team of attorneys from the ACLU and my firm (including me) has filed suit on behalf of four couples (same-sex and different-sex) to protect their right to marriage. This month, District Judge David Bunning granted our motion for preliminary injunction, ordering the clerk to resume issuing marriage licenses. That order is currently being appealed by the clerk. Meanwhile, the clerk is also seeking a stay of that injunction. Litigation in this case will likely take a long time to resolve.

In other practice news, I have secured favorable settlements for clients in numerous cases this year, most recently a case of pregnancy discrimination against a major restaurant chain. Several of my clients have also won their appeals in unemployment benefits hearings, defeating spurious claims of misconduct by their former employers.

I continue to write periodically for Insider Louisville. My article opposing legislation to excuse county clerks from having to do their jobs was shared over three thousand times on social media. Other pieces, such as a criticism of the local Fraternal Order of Police president's inflammatory language against protesters and a call to help existing residents of Portland transform their own neighborhood (rather than be gentrified by outsiders) were also popular. My most recent piece tackles the futile and troublesome jaywalking crackdown proposed by local police.

The day before the Obergefell decision, I received a first place award in the category of political commentary from the Society of Professional Journalists for my writing in Insider Louisville. I've also been selected, for the second year in a row, as a "Rising Star" by the Super Lawyers professional rating organization. 

I'm also writing academically. I am now in the final revision stage on a law review article tracing how Bowers v. Hardwick - the 1986 Supreme Court case upholding sodomy laws - continues to control judicial decisionmaking despite its overrule by Lawrence v. Texas in 2003. The article will be published in the Thomas M. Cooley Law Review later this year. This will be my second published law review article with more in the works.

And finally, my colleague Dan Canon and I have launched a podcast called The Parade of Horribles. Why? Because we love to hear ourselves talk, of course. But we also love to talk to interesting people doing civil rights work, so each episode features a special guest. In Episode 1 we spoke to attorney Chris Gadansky about defending police in abuse of force cases and his role in extinguishing whistleblower protections for city employees. In Episode 2, law professor Sam Marcosson joined us to talk about Obergefell, gay marriage, and that time he worked for Clarence Thomas. In Episode 3, attorney Becca O'Neill helped us dispel common myths about immigration law in the United States. So far the podcast has been tremendous fun, and has attracted a decent-sized audience despite being brand new and focused on legal issues. The podcast is available at Soundcloud and through iTunes. Subscribe if you don't mind.

David Boies on Marriage Equality

I recently had the opportunity to speak with attorney David Boies about his work in the realm of public interest law and marriage equality. Our conversation, along with a narrative of his career from the hallowed biglaw halls of Cravath, Swain & Moore, to the U.S. Supreme Court in Hollingsworth v. Perry, and then to the Fourth Circuit with Bostic v. Schaefer, was published by Insider Louisville.

Boies will appear at the Kentucky Author Forum on Tuesday, March 24, for an interview by author and legal commentator Jeffrey Toobin to discuss the documentary The Case Against 8 and Boies' book he co-authored with colleague Ted Olson, titled Redeeming the Dream: the Case for Marriage Equality.

Why Should Government "Get Out of Marriage?"

Often in my travels across the Internet, I encounter a peculiar argument about marriage. In the wake of the ongoing legal battle over state same-sex marriage bans, a common refrain by many is that it would be best if government "just got out of the marriage business" altogether.

This is usually said by people who support same-sex marriage in principle, but are just kind of tired of hearing about it and think everything would be easier if we just got rid of marriage laws altogether.

I simply do not understand this argument, and I don't think the people making it understand it, either.

First, the basics. "Marriage" as we refer to it can mean a couple of things. First, it can mean the civil institution where a couple goes to the local court clerk's office, pays a fee and fills out an application, and then receives a formal "marriage license." You have to go to court to break up, which we call "divorce." This is civil marriage.

The second meaning is something more subjective, where a couple, through their church or maybe just on their own, decides that they are "married" in the eyes of their God or in conjunction with their ethical creed or for some other spiritual, philosophical, or pragmatic reason. There's no state license involved, and the state does not recognize any formal obligations or duties on the part of either person. You don't have to go to court to get divorced. We'll call this "social marriage."

The first definition is what most of us mean when we talk about "marriage." And there's a reason for that, because without the backing of the government, "marriage" simply doesn't mean much of anything. It may mean something important to the two (or more) people directly involved, but it carries no weight with anybody else.

Civil marriage is enforceable. Once you apply for and receive a license, you are contractually obligated to do certain things, like share property and care for any children you have together. If one of the parties fails to live up to those obligations, they can be held liable to the other by a court. And marriage carries a variety of important privileges.

A marriage license from the state streamlines how we interact with society in certain ways. It is an automatic free pass for any issues that may arise due to our children, our health care, our property and possessions in life, or in the distribution of our property in death. It protects spouses from having to rat on each other in court, and it protects our employment if we have to take time off to care for them.

None of these things would exist if the state "got out of marriage." And this is not an exhaustive list of all the aspects of life which civil marriage touches and simplifies. There are also specific benefits, like tax breaks.

Let's pretend there is no civil marriage anymore for anybody, only social marriage. There are relationships people call "marriage," but the term no longer carries any legal weight. People will of course still have relationships, children, and shared property, but there won't be any way to identify as a couple in the eyes of the state.

What happens when your "spouse" gets sick and is hospitalized but the hospital refuses to admit anyone not in your spouse's family? You, not being of blood relation to your spouse, are excluded based on that rule. You are, after all, a legal stranger to that person.

Or perhaps you and your "spouse" buy a house together. But one day your spouse decides he or she doesn't want you to live there anymore and kicks you out. If your name is not on the deed, what claim to it do you have? And even if it is on the deed, your spouse has no legal obligation to give you half the value of the house in exchange for your part of the deed. Where would that obligation come from? No law currently on the books today. You'd have to sue in court and prove why you're entitled to any part of the value at all. What if your "spouse" was the only one employed and made all the mortgage payments?

And what if you and your "spouse" have children? Which last name do the children take? Remember, there is no civil marriage so name changes for that purpose are no longer granted. If the children take the last name of the spouse, where does that leave you? What if the children are sick at school and you go to pick them up, but the school refuses to release them because you have a different name and can't prove you're their parent? Do we need to create new custody laws to make up for the loss of civil marriage? Or perhaps one biological parent must file for adoption each time a child is born to their "marriage." That's a complicated, expensive process that is totally unnecessary under civil marriage.

How our society deals with issues of property, child care, death, and many other critical aspects of basic life revolve around civil marriage. When government is "out of it," it creates tons of headaches for couples who otherwise desire to operate as a cohesive unit.

After all, these are the kinds of legal struggles same-sex couples currently have to endure in the state of Kentucky. To them, government is "out of marriage," and it is hell. They face numerous daily (and expensive) hurdles simply because the state does not acknowledge their partnerships.

Maybe you're thinking that the government could just allow couples to enter into contracts where they share property and various other obligations, but we just won't call it "marriage" anymore. Well, what's the point of that?

There's a reason government is in the marriage business in the first place. It's because it streamlines complicated parts of life that require state recognition and dispute resolution. Simply because having to include more than just opposite-sex couples makes some people mad is not a good reason to implode the entire institution.

Switching to some informal, church-only, or individual concept of marriage makes us all legal strangers, even those couples who build all important aspects of their lives around each other. That cannot possibly be a better system than simply including more people in the one we have.

So the obvious question is why? Why should we totally abandon an established civil institution that, for the people currently included in it, seems to work pretty well? Why does that seem like a better alternative than just including more people in it? I have yet to hear any convincing argument.

Human Lives as Abstract Thought Experiments

A passage from Jonathan Chait's controversial New York Magazine essay on the creeping threat of "political correctness" in liberal journalist and academic circles solidified thoughts I've been having about privilege and white intellectualism for some time now. These thoughts also apply to lawyers.

If you have a lot of time to kill, you can read Chait's just-shy-of-5000 words essay here. Excellent critical responses are available from Glenn Greenwald and Alex Pareene.

After publishing a hostile internal exchange among women journalists in a private online group (to which Chait was not originally privy to, obviously, but heard about second-hand from a concerned anonymous source), Chait complains that calls for racial and gender inclusiveness in discussions are really just a form of "policing" and interfere with free expression and debate.

He goes on to write:

The p.c. style of politics has one serious, possibly fatal drawback: It is exhausting. Claims of victimhood that are useful within the left-wing subculture may alienate much of America.

It is impossible for reasonable people to deny that many have been and are currently victimized by American government, law, and social forces. Slavery, Jim Crow, the denial of suffrage to women, Native American genocide and isolation, discriminatory marriage laws...the list goes on.

White men like Chait and me haven't been the target of much injustice, however. We've had it pretty good overall. Sure, there is individual hardship and suffering (neither Chait nor I are billionaires or kings), but white men enjoy considerable privileges denied to others. We occupy a social and civic place of deference and power to which other groups such as women and racial minorities can only dream.

As a result, white, educated men like Chait and me tend to view important social questions through an abstract lens. Questions of justice and policy are intellectual exercises in which we can ponder options of various weight and validity from a detached, academic distance.

For example, the question of whether gay people should be allowed to be married is a question that is in some ways purely academic to someone like me. I'm a straight white man married to a straight white woman. The law has always allowed me to marry so I take it for granted. I am not someone who has ever been denied the right to marry because my skin color, my gender, and my orientation have always conformed to the legal and social status quo. I can view the question of gay marriage, therefore, from a detached, intellectual distance. The answer to that question, yes or no, does not directly affect me personally. My marriage remains unaffected by the outcome. My rights are not in question.

But for two men turned away from the county clerk's office and who are denied the right to marry, the question is not abstract or academic at all. It is deeply personal. On some level, their basic personhood - their right to participate fully in our civic culture - has been denied. They have been victimized, and it is impossible for them to view the question of their own humanity in an abstract, intellectual way.

Which takes me back to Chait's dismissal of "claims of victimhood" which are "useful within the left-wing subculture." Chait seems to suggest that such "claims" are something akin to debate tactics. A rhetorical weapon used to score points in an abstract tussle of intellects.

This passage immediately made me think of the familiar cry of racist whites who stalk online newspaper web sites. The mere mention of racial injustice by anyone immediately inspires accusations of "playing the race card," a sinister and unfair trump exploited by black people to shut down otherwise fair debate with good-natured white folks. If you view discussions about social justice as nothing more than an academic exercise or an abstract debate, this makes sense.

But if you don't enjoy such privilege - if the outcome of a "debate" on race is that your son or your father or you are shot in the street by police with impunity, for example - trying to illuminate the racial injustice from which you suffer is not a mere debate tactic or an unfair rhetorical trick. It is literally a matter of life and death. You're not playing a card, you're begging for acknowledgment and justice. You're begging to not be shot dead, unarmed in the street, simply because of who you are.

To Chait and other white men who bemoan the imminent decline of civil free expression, not being able to suggest literally any idea without being immediately criticized for it is a sign of a society gone awry.

Chait used to write for The New Republic, a bastion of center-liberal thought that was at one point considered the most influential magazine in elite D.C. circles. The magazine, though lauded by white male intellectuals for its thoughtfulness, became infamous for the casual and unrepentant racism of its former publisher Martin Peretz. TNR advocated for welfare reform during the presidency of Bill Clinton by exploiting racist and sexist stereotypes, for example.

Recently, after TNR came under new ownership and much of its editorial staff quit in protest, Ta-Nehisi Coates, an African-American author at the Atlantic, took the publication to task for its racist legacy. Among TNR's worst moments was a lengthy "debate" over the validity of Charles Murray's "Bell Curve" hypothesis, which holds that blacks, as a whole, have lower I.Q.s and intelligence than whites due to genetic predispositions.

Former TNR editor Andrew Sullivan took offense to Coates' negative portrayal of his old magazine. You see, Sullivan argued, TNR wasn't racist because it fostered an even debate about the Bell Curve, not a one-sided endorsement of it:

I completely respect those who believed that the right approach was to ignore [the Bell Curve] entirely and treat it as a pariah text; or to publish only definitive, devastating take-downs. But I hope that an issue-long, 28-page debate on the subject can also be seen as a legitimate alternative option, especially if you’re on the liberal part of the left.
It is an axiom of mine that anything can be examined and debated – and that the role of journalism is not to police the culture but to engage in it forthrightly and honestly.

This is an attitude that Jonathan Chait clearly shares. The reason they're so comfortable examining and debating "anything" - including the suggestion that black people are subhuman - is because they're part of a grand "liberal tradition." It's also because they're white men, and somehow the argument that they are genetically subhuman never makes the list of topics to intellectually discuss.

Now the mandatory disclaimer: I, too, think debate should be free and open and confront complicated, controversial topics. That said, I depart from Chait insofar that calls to be mindful of privilege and those victimized by our society and justice system somehow shuts down that debate. If anything, it helps illuminate and educate unvictimized people to the plights of those less fortunate. It is a good thing. It is valuable.

As Greenwald and Pareene explain, much of Chait's frustration is really just a result of no longer feeling untouchable atop the social and intellectual totem pole as a white man with extensive academic and journalistic credentials. But his frustration is also borne from a sense of inconvenience. From being required to take stock of himself and his own biases before making certain arguments or entertaining certain ideas (like the subhuman stature of black intellect).

Too often our government, our legal system, and our halls of academia ignore the voices of the marginalized and oppressed. They all remain, to this day, dominated by white men, most of them wealthy. And make no mistake, there are many marginalized and oppressed people in this great country of ours. Including additional voices in the discussion, or simply calling attention to their mere existence, is not a chill on free expression. If anything, it is a sign that free expression is blossoming because more voices can be heard.

And always bear in mind, what may seem like an innocent, intellectual discussion to you may be a matter of life and death to someone else. For far too long the voice of just one type of person has been heard. That has caused great injustice and the stifling of debate. Including more people at the table, and criticizing the voices of those before not often criticized, is something this country needs more than ever.