Use of homophobe

Mon May 11 08:03:16 PDT 2009

I guess one side can say that states like Nebraska have institutionalized "homophobia," and another side can say that states like Massachusetts have institutionalized "perversion."

But isn't it better to recognize that these states have reasonable differences concerning the definition of marriage and whether states should recognize "marriage by another name" substitutes like civil unions.

I am proud to live in Nebraska, a "super-DOMA" state. I could not even consider moving back to the state of my birth, Massachusetts, because it is not the kind of place in which I want to raise my children.

But I have good friends who feel the opposite.

I have decent and intelligent friends and colleagues who believe that it is irrational to refuse to recognize same-sex relationships. And I have decent and intelligent friends and colleagues who believe it is irrational to recognize same-sex relationships. Both groups wish to raise their children in a culture that properly understands the truth about marriage. It all comes down to first principles.

I don't think it helps to have one side shouting "homophobe" and the other side "pervert."

Indeed, the beauty of federalism is that it enables different states to take different positions, and provides choices for all of us as to what kind of marriage regime we wish to live in and raise our families in. States with DOMA amendments may be less attractive to certain types of people and more attractive to others. I don't think this is necessarily a bad thing. I choose Nebraska, but someone else may prefer Massachusetts. 

Indeed, if super-DOMA laws cause some candidates for academic jobs to decline offers, it may cause other candidates to be more inclined to accept offers. The result of this may even be to increase intellectual diversity in secular universities, because religious conservatives and secular traditionalists are under-represented in the academy.

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)

--- On Mon, 5/11/09, Daniel Pinello <dpinello at jjay.cuny.edu> wrote:

From: Daniel Pinello <dpinello at jjay.cuny.edu>
Subject: RE: Use of homophobe
To: "CONLAWPROFS professors" <conlawprof at lists.ucla.edu>
Date: Monday, May 11, 2009, 3:56 AM

#yiv1367062950 P {
MARGIN-TOP:0px;MARGIN-BOTTOM:0px;}

"Super-DOMAs" are the clearest instance of institutionalized homophobia in the United States today. Nineteen states have passed constitutional amendments banning all forms of relationship recognition (marriage, civil unions, domestic partnerships, reciprocal
 benefits, etc.) for same-sex couples. I am investigating the grass-roots effects of such harsh constitutional regimes against gay and lesbian pairs.

Since January, I've conducted more than 30 in-depth interviews in Michigan, which I chose for the initial leg of my new empirical endeavor because, last May, the Michigan Supreme Court became the first court of last resort in the country to interpret definitively
 a Super-DOMA and thereby document a specific local impact of such a constitutional provision.

I report some interesting preliminary findings in three major categories of inquiry. The first is whether gay and lesbian couples in Michigan have experienced actual, tangible losses from Proposal 2 (as the Super-DOMA there is known), adopted in 2004 (and
 not to be confused with Michigan's 2006 Proposal 2 that addressed affirmative action). The most conspicuous example in this class of effects is that, as a legal matter, the same-sex partners of public employees may no longer receive domestic-partner benefits
 in the Wolverine State. This development is particularly troublesome where such partners do not themselves have jobs that provide comparable health-insurance coverage. Of even greater concern is the circumstance where partners are the biological parents of
 minor children being raised by the couples, because Proposal 2 also effectively eliminated the availability of second-parent adoptions for same-sex pairs in Michigan. As a result, lesbian and gay public employees may not even be able to provide health coverage
 to their children in that setting.

I've documented instances of other varieties of direct loss, involving the denial of (1) housing rights to the partners of public employees and (2) inheritance rights. An example of the latter category is particularly interesting. I interviewed a lesbian
 couple where one of the women is an heiress to a substantial family trust fund. She and her two brothers are the principal beneficiaries of the trust. Their grandmother, knowing the granddaughter to be a lesbian, designed the trust to provide that only the
 legal spouses of her grandchildren would receive trust payments. Accordingly, should the heiress predecease her partner of 20-plus years, the latter would receive nothing from the family trust. Indeed, the two grandsons and their wives approached the trustees
 and said that they were willing to include the lesbian partner as a beneficiary of the trust. But the trustees refused. Even if the lesbian couple were married in Massachusetts (where they have a vacation home), Proposal 2 would still deny inheritance rights
 to the heiress's partner because the family trust is governed by Michigan law.

The second category of Proposal 2's effects is the emigration of LGBT people away from the Wolverine State to jurisdictions with less hostile legal environments for gay and lesbian pairs. So far, I've been informed of at least a dozen same-sex couples who've
 left Michigan principally because of its Super-DOMA. I've been able to contact some of these people independently to substantiate the reasons for their relocation.

The final class of Super-DOMA effects is the most elusive to identify as a methodological matter: whether these constitutional regimes suppress immigration into their states. In other words, do LGBT people and their supporters take state legal environment
 into account when deciding where to live in the first instance and thereby refuse to consider states like Michigan as prospective homes? A key determinate for this category of impact is the experience over the last four years of large Wolverine State employers
 in recruiting and retaining personnel in light of Proposal 2. Yet there's a notable methodological hurdle to documenting prospective job applicants who decide not to seek employment in Michigan because of its hostile legal environment for same-sex couples.
 Choices not to apply are non-events that are nearly impossible for an empiricist to observe at a distance.

Nonetheless, I've been able to identify a circumstance where an executive search firm was hired last year by a major Michigan public employer to solicit applicants nationwide for a senior administrative position there. Fortunately for my project, this search
 company's experience is a virtual experiment that overcomes the methodological dilemma outlined above. The independent executive recruiter found 28 qualified people willing to apply for the Wolverine State post, but discovered another nine qualified individuals
 who refused to consider the position because of Proposal 2. In other words, Michigan's Super-DOMA reduced the prospective national applicant pool for an important post at a significant public institution in the state by approximately 25 percent.

In addition, I've also substantiated instances at Michigan public universities where, during the last four years, the top or leading candidates for positions as provost, arts-and-science dean, and other administrative and faculty posts have either rejected
 offers or withdrawn applications once the candidates were informed about Proposal 2.

In short, the institutionalized homophobia represented by Super-DOMAs not only negatively impacts lesbian and gay citizens, but also has significant unintended adverse effects on states as a whole.

Dan Pinello

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