Constitutional

Feminism is Fiscally Conservative

/ Michelle Parker / Leave a comment

This may surprise some people, but for most it’s a no brainer: having a baby is more expensive than taking birth control. When you multiply those expenses nationally, these savings can be even more substantial. However, because rights to access birth control and contraception are constantly being challenged and eroded in some states, tax payers are paying the higher costs associated with unplanned pregnancies, rather than for preventative measures.

According to a new report compiled by Guttmacher, in 2008, 2 of 3 unplanned pregnancies resulted in births that were publicly funded, and the combined cost of all those births was $12.5 billion. Overall, more than half (65%) of births that were paid for by public insurance programs were the result of unplanned pregnancies. The study contends that this is the result of low access to birth control and abortion for poor women in states that spend a significant amount of money paying for prenatal, hospital, and post birth care for unplanned children.

Keep in mind that these costs do not take into account later, taxpayer-funded government care, like public school and food stamps.

The study also states that in the absence of the publicly funded family planning effort, the annual public costs of births from unintended pregnancy would have been twice as high — $25 BILLION.

As Erin Gloria Ryan from Jezebel adeptly points out, “the public must either bear the cost of preventing pregnancy, bear the cost of unplanned pregnancy, or allow poor women to bleed and die in the street. Which one is the most pro-life and fiscally conservative?”

When women want access to birth control and other medical services, it’s in the best interest of the country that they have that access. People, regardless of whether or not they can afford children, are going to have sex; and if a person doesn’t want a child, why make them have one? Therefore, a person who believes in freedom from government interference and fiscal responsibility then has the same goal as a feminist: allowing all women access to choice.

The study can be reviewed here: www.guttmacher.org/pubs/public-costs-of-UP.pdf

Ideology in the Supreme Court

/ Lisa Dolak / Leave a comment

During its October 2012 term, the U.S. Supreme Court decided a number of high-profile cases, including cases on voting rights and same-sex marriage. The Court decided these and a number of other cases – 23 in all this term – by 5-4 (or 5-3) majorities. The “conservative bloc” members – Chief Justice Roberts and Justices Scalia, Thomas and Alito – were in the majority (with Justice Kennedy) in 10 of these 23 cases. And indeed the Court’s conservatives frequently vote to decide cases in the same way. For example, Chief Justice Roberts and Justice Alito agreed in 90% of all the Court’s cases this term, and Justices Scalia and Thomas agreed in 86%.

But the same (or even higher) levels of agreement were seen this term among the Court’s “liberal” justices: Justices Breyer and Kagan agreed in 91% of the cases, and Justices Ginsburg and Sotomayor agreed in 94%. The four members of the liberal wing voted as a bloc in most (17) of the 5-justice majority decisions, as did the four conservative justices (in 16 of the 23). And we see similar levels of agreement among the justices each year.

Ideological voting, in other words, is a two-way street. Liberal justices and conservative justices tend to vote with their ideological fellow travelers. The media often oversimplify this phenomenon by suggesting that a given justice’s vote is attributable to the political affiliation of the president who made the particular judicial appointment. But the reality is more complex and less sinister. Although decisions are to be made in accordance with the law, in most cases sound arguments can be made for differing interpretations of the relevant legal principles. And the suggestion that the justices simply do the bidding of their appointers ignores the fact that judges (like the rest of us) have distinct, sincerely-held political and constitutional philosophies, and that they (legitimately) bring those approaches to bear on the questions they decide.

The percentage of decisions made by a 5-justice majority during the recent term (29%) is slightly higher than the recent (previous four terms) average (of 22%). But significantly more (49%) of the Court’s decisions this year were unanimous. With all of the media focus on the justices’ disagreements, it is important to recognize that in most cases, the much-publicized right-left Supreme Court divide is bridged.

This piece was originally published in the September/October issue of WCNY Magazine.

For more from Professor Dolak, check out the recent SLACE Archive post about her appearance on WCNY‘s The Ivory Tower as well as her regular appearances on the program Friday nights at 8PM.

Immutability and LGBT Asylum

/ Eric van der Vort / Leave a comment

There are long-standing debates about the causes of homosexuality, if indeed any exist.  Though the most current research of which this author is aware suggests that, rather than being the result of any one factor (e.g. a single genetic cause), it may be a confluence of factors, the more important and, in my view, the more interesting fact is that the biological, sociological and psychological underpinnings of sexual orientation and gender identity have important ramifications for legal and policy debates about how governments should deal with sexuality.

As the Western world has embraced the rights of gender and sexual minorities with surprising alacrity, one issue that has confronted several governments has been immigration of members of these identity communities.  Particularly as domestic rights have expanded in some countries while others have remained discriminatory or hostile toward LGBT individuals within their borders, questions of immigration and asylum have sometimes become quite prominent.  While many Western states have (relatively) clear standards for those seeking asylum on the basis of discrimination or persecution in their home countries, these standards often require that individuals be members of particular ethnic, racial or religious groups that are easily idenified, quantified and understood.  The pursuit of asylum status on the basis of sexual orientation and gender identity can be more complex because of the standards in law about what precisely counts as an identity.

A related example is somewhat instructive: in American equal protection jurisprudence, the most stringent standards for equal protection adhere to classifications making use of groups that fall under a suspect classification.  Some of the criteria that serve to qualify a group for this ‘suspect classification’ status include (1) a history of discrimination, (2) an immutable or highly visible characteristic, (3) political powerlessness and (4) no relation between the classification in question and the ability to contribute to political, economic and social life.  When a group is considered a suspect class, any legal classification using that category of persons is subject to strict scrutiny.  Legal classifications in the U.S. that currently meet this standard include any making use of race, national origin, alienage and (by some interpretations) religion.  Each of these four classifications shares some level of the above criteria, but one above all others stands out as uniting them: the immutability of the classification.  Immutability in American law is an essentially biological characteristic: individuals have no control over the circumstances of their birth and, thus, legal classifications that rely on such groupings are invalid.

In light of this immutability doctrine, one can begin to tease out the logical difficulty of treating sexuality as a suspect classification.  Assuming an acceptance of this particular scheme (developed by the Supreme Court over several decades), sexual orientation and gender identity do not seem to match the requirements.  While other characteristics may be subject to debate (histories of discrimination, political powerlessness and so on), there is something about sexuality which remains harder to pin down and quantify in easy terms.  Even birth gender, which stands as a quasi-suspect classification, is a matter of biology, at least in law.  The fluidity of sexuality and gender identity lead some observers to conclude that they cannot serve as the basis of any kind of suspect classification, thus requiring either a separate legal standard or no legal protections at all, at least any more than is afforded to any other group.

This brief foray into constitutional law is instructive to the matter of LGBT asylum seekers and refugees.  While the United States and other Western countries have accepted claims for asylum on the basis of discrimination and persecution because of sexual orientation and gender identity, this remains one of the areas where bureaucracies continue to have some difficulty.  Petitions have been denied in the United States and United Kingdom in recent years, and the issue has risen again as groups have pressured governments in the West to open doors to Russian asylum seekers.  This has challenged bureaucrats, who are tasked with distinguishing between individuals genuinely seeking asylum and those who are simply seeking entry to a particular country with “false” claims.

A recent report by the Home Affairs Committee in the United Kingdom has shed light on the situation facing LGBT asylum-seekers not only in the U.K. but elsewhere.  The BBC reports that some asylum-seekers in the U.K. have, because of seemingly skeptical officials, resorted to submitting evidence of same-sex sexual behavior to ‘prove’ their sexual orientation or gender identity as evidence for their asylum petitions:

The report said: “The battleground is now firmly centered in ‘proving’ that they are gay. In turn, this has led to claimants going to extreme lengths to try and meet the new demands of credibility assessment in this area, including the submission of photographic and video evidence of highly personal sexual activity to caseworkers, presenting officers and the judiciary.”

The committee said: “We were concerned to hear that the decision making process for LGBTI applicants relies so heavily on anecdotal evidence and ‘proving that they are gay’.”

It added that “it is not appropriate to force people to prove their sexuality if there is a perception that they are gay. The assessment of credibility is an area of weakness within the British asylum system.

Such reports, if accurate, are highly troubling for those of us concerned with the rights of gender and sexual minorities.  They reflect a return to a way of thinking that places weight not on an individual’s identity but on an individual’s actions, the propensity toward (and actualization of) same-sex sexual desires or “genuine” evidence of gender non-conforming behavior and identity.  As sexual orientation is not, like the immutable characteristics comprehended by the U.S. Supreme Court, a highly visible characteristic and may in fact be fluid, the weight of an asylum seeker’s identity may be placed on actual conduct.  Much of the work by the LGBT community and its allies has been to reject this older, arguably outmoded view of sexuality.  Yet it seems that some asylum-seekers are doubly burdened, having to prove discrimination or persecution and having to prove that the basis of that discrimination is in fact real.

Representing the LGBT Community

/ Eric van der Vort / Leave a comment

Towleroad has a round-up of recent discussions that have centered around members of Congress (MCs) who are members of the LGBT community, yet have voted against generally liberal or progressive positions (most recently voting with the GOP majority in the House to ‘shut down’ the government).  This has led to a good deal of debate about the disconnect between LGBT elected officials and the putatively progressive community they are part of.  Michaelangelo Signorile describes the voting behavior in question:

Since taking office, Sinema has voted with the GOP against economic justice issues that progressives, including LGBT activists, view as crucial. Both she and U.S. Rep. Sean Patrick Maloney (D-N.Y.), an openly gay former Clinton aide, also elected for the first time in 2012, have voted with big banks and Wall Street time and again. Right out of the gate, Maloney, who took a lot of Wall Street money, voted with the GOP on the debt ceiling early this year, and actually co-sponsored a bill that would roll back reforms of the very Wall Street practices that led to the economic collapse. He even voted with the GOP to take authority over the Keystone XL project from the president. Like Sinema, he also voted to jeopardize Obamacare or shut down the government. And he too was supported in his election campaign by the Gay and Lesbian Victory Fund, the Human Rights Campaign, and other gay and progressive groups, touted as a progressive.

The assumptions behind the idea that Sinema and Mahoney should vote in accord with liberal or progressive values are, I would argue, fairly faulty.  At the core of this argument is an assertion that there is a connection between liberal or progressive values, on the one hand, and LGBT identity on the other.  While it is true that there is a tendency in the LGBT community to vote for Democrats and Democratic candidates, this is hardly a universal trait and, more critically, is a poor measure for the whole panoply of political attitudes.  Party ID is a useful but blunt measure for policy preferences.  For example, some measures show that in the most recent presidential election, LGBT voters favored President Obama 3 to 1. However, polling done prior to the election indicates that much of this may have more to do with Obama’s favorable stances toward LGBT issues rather than universal approbation of Obama’s or Democratic policies more generally.  As just a few examples: 60% of respondents in the Logo TV poll report supporting the Affordable Care Act while approval ratings among LGBT voters are higher than the general population, but, aside from gay rights issues, the approval ratings for Obama’s handling of health care, general economic issues and unemployment/jobs each hovers around the 60% mark.  These results indicate that perhaps 2/3 of LGBT voters are support or are in agreement with Obama and the Democrats on important issues of the day.

The White House’s record on LGBT rights in general has been strong.  It is equally indisputable that, over time, the Democratic party has grown more friendly to the LGBT community than the Republican party.  The connection that Signorile and others bemoan between liberal or progressive values and LGBT voters, citizens and representatives is not created by attitudes on economic issues, foreign policy and so on.  Rather, as political scientist Kenneth Sherrill has argued, what may be driving much of this partisan loyalty is a sense of shared fate (a sense of group identity or shared consciousness that can lead to perceptions of common interest) — many LGBT voters may default to the Democratic option because of their positons on LGBT issues.  To infer from this that the majority of LGBT individuals share a liberal or progressive outlook is faulty inference.  Normative desires for LGBT representatives who are also ideologically “pure” members of the Democratic coalition are fine, but to turn these into operative assumptions that LGBT voters are primarily or predominantly liberal is a step too far.

Following Windsor, Lawsuits Take Aim At Pennsylvania Same-Sex Marriage Ban.

/ Matthew McKeon / Leave a comment

Like many other states, Pennsylvania bars same-sex marriage by statute.  23 Pa. Cons. Stat. §§ 1102 and 1704 (1996).  Unlike other states, Pennsylvania’s ban is currently being challenged at all levels of government.  This drive is even visible at the local level: Reuters reported that the county clerk of Montgomery County issued more than 170 marriage licenses to same-sex couples between late July and mid-September, when a state court ordered him to stop.  In the state legislature, two representatives in the lower house plan to introduce a bill on October 6 that would override the existing ban and permit same-sex marriages.

While acts of civil disobedience and bold legislative proposals may inspire marriage equality advocates, the Republican governor and the Republican majorities in both houses of the state legislature are unlikely to be so moved.  In the end, the most significant threat to the state ban is a pair of lawsuits filed in two different federal district courts.  Both suits are the direct result of the U.S. Supreme Court’s holding in United States v. Windsor, 133 S. Ct. 2675 (2013).  In Windsor, the Court struck down Section 3 of the federal Defense of Marriage Act (DOMA), which permitted the federal government to withhold federal recognition for same-sex marriages entered into in states and jurisdictions where same-sex marriage is legal.  Although Justice Anthony Kennedy based the Court’s holding in part on the traditional supremacy of states in regulating marriage, other parts of his reasoning paradoxically provided fertile ground for federal challenges to state same-sex marriage bans.        

The first challenge, Whitewood v. Corbett, was filed in the U.S. District Court for the Middle District of Pennsylvania just days after the Supreme Court handed down its opinion in Windsor.  In their complaint, the plaintiffs challenge Pennsylvania’s ban on same-sex marriage on the grounds that denying same-sex couples the right to marry in Pennsylvania violates the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause.

Quoting Kennedy, the plaintiff’s complaint alleges that the state ban “‘tells [same-sex] couples and all the world- that their relationships are unworthy’ of recognition.”  The complaint also references the part of Kennedy’s reasoning which addressed a significant group of people affected by  government’s refusal to recognize same-sex marriage: the children of same-sex couples.  The plaintiffs claim that the state ban “‘humiliates the…children now being raised by same-sex couples’ and ‘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.’” Governor Tom Corbett—himself the primary defendant in Whitewood–has moved to dismiss the case.

The second challenge, Palladino v. Corbett, was filed in the U.S. District Court for the Eastern District of Pennsylvania in late September.  Although a record of their complaint was not available at the time of this article’s posting, Alfred Lubrano of the Philadelphia Inquirer reports that the plaintiffs in Palladino are challenging the state ban on the grounds that it violates Full Faith and Credit.  The plaintiffs, two women who were lawfully married in Massachusetts, assert that it is unconstitutional for Pennsylvania to not recognize their marriage.  While it remains unclear if the plaintiff’s will reference Kennedy’s reasoning in Windsor, they echoed Kennedy’s consideration for children of same-sex couples at a recent press conference, stating that their young son “doesn’t know he’s a second-class citizen in Pennsylvania, where we’re not considered married.”

On top of the suits themselves, a high-profile schism in Pennsylvania’s executive branch may complicate the state’s defense of the law.  Despite being named as a defendant in both Whitewood and Palladino, Pennsylvania’s Attorney General Kathleen Kane, a Democrat, has publically denounced the state ban as unconstitutional and has stated that she will not defend it in federal court.  Kane’s position puts her at odds with Governor Tom Corbett, a Republican who supports the state ban and – perhaps at the suggestion of Rick Santorum – recently compared same-sex marriage to incest.  With developments in both cases on a weekly basis, Pennsylvania remains at the center of the nation’s debate over same-sex marriage.