posner’s same-sex marriage ruling

The Seventh Circuit appeals court ruling on Indiana and Wisconsin’s same-sex marriage bans is out, and is of interest for several reasons. It is absolutely dispositive — really no ambiguity at all. It rests on Richard Posner and colleagues’ “law and economics” paradigm instead of the more traditional rights paradigm. And finally, it is written so clearly, and with significant humor, as to be a pleasure to read. I’ll paste in some of my favorite passages below the fold.

I’ve also got a question for law-and-society and social movements people. The question is this: the legal trend toward same-sex marriage, even in hostile environments, seems nearly a juggernaut. What explains this enormous change over the course of a very short time, in the context of a legal regime that is understood to be, in a certain sense, timeless? In other words, all the materials were available for the court to find this, say, 30 years ago, but that would have been unthinkable. This seems, also, to contradict the main finding of a political science classic, The Hollow Hope, which argued that courts rarely lead social change.

separate the ick from the harm

The controversy over Colorado’s response to Patti Adler’s exercise, in which undergraduate teaching assistants role played various types of prostitute to consider the stratification of deviance, has produced a wide variety of opinions among academic sociologists. Many here on the blogs and on twitter have raised questions about the appropriateness of this exercise, which is a fair point, but one that requires a bit more scrutiny, in my view.

Sexual topics of all kinds have to deal with the “ick” factor. Many forces in our culture encourage us not only to be critical of, but also to be viscerally repulsed by, sexuality. So, I worry that the administration’s reaction, as well as that of my colleagues, is magnified, triggered, or made more extreme by the ickiness of the topic, rather than by the actual harm done. I am not saying that it is not possible for lectures/exercises on sexuality to harm students or teaching assistants. Of course it is. Sexism, as well as sexual violence and exploitation and harassment, are real phenomena and should be concerns of university campuses. Students and employees should be considered and cared for, and not subject to harassment. Period.

However, I am concerned that the sexual nature of the lesson itself makes it highly suspect to administrators, and I fear that the ick makes it seem obvious that such a topic must therefore be harmful. If the sexual nature of the topic–and our repulsion to it–gives us permission to skip the step where we weigh the benefits against the harms, then we are heading down a road to total censorship of sexual topics in sociology. And it is my view that, as sensitive as these topics can be, more harm comes from being silent about sexuality than discussing it openly. So, that is why my response to the news–which of course hasn’t yet been fully fleshed out–is to express great concern for administrative intrusion in the classroom and academic freedom. I am worried that it is all too easy for everyone to agree that this exercise is icky and assume, therefore, that it is also harmful.

mary mcintosh

Mary McIntosh, author of “The Homosexual Role,” among other things, has passed away. This piece is of course one of the foundational works of a sociology of sexuality. It always struck me as such a brave work, as it applies general sociological concepts to a topic that, at the time, was so strikingly marginalized and “owned” so completely by psychology. Of course, it wasn’t written independently of a fledgling lesbian and gay movement; Mary McIntosh was a feminist and an lesbian activist. Still, it is a piece that reminds me of how powerful sociological concepts can be in re-imagining what we think we know.

Here is an excerpt from Ken Plummer’s memorial:

Mary was a serious intellectual and a passionate activist. A strong, caring, quiet presence – she also had a very strong sense of fun and always ready for a dance and a laugh.  I missed her greatly when she left Essex; the department could never be quite the same for me. And now she leaves a gaping hole in the world. But she will be loved in remembrance.

I won’t get a chance to meet her, but she certainly has left her mark on me.

same-sex marriage support increases in all age groups

This story in the NY times is a pleasant read among all the bad news in the digital papers these days. It shows that recent data reveal an interesting trend–support for same-sex marriage among all age cohorts:

[Between 2009 and 2012], according to Pew, support among baby boomers (ages 48 to 66) has grown to 41 percent from 32 percent; among seniors (over age 67) to 33 percent from 23 percent; among Generation X (ages 32 to 47) to 51 percent from 41 percent; and among millennials (ages 18 to 31) to 64 percent from 51 percent.

As Shamus and others have remarked, this is a very dramatic shift, which is very unusual for public opinion. Cohort turnover, rather than changed minds, explains most changes in opinion over time, but this issue is different.

I have done some work that shows a similar trend in attitudes toward homosexuality–attitudes changing in all age cohorts, in addition to generational turnover–and the story today reminds me of that time I was just fiddling around with those World Values Survey data. This was way back in time when the blogosphere was young: 2005. I didn’t really trust myself to do data analysis, and I checked in with Jeremy Freese to get some help with how to interpret the data. He asked me the million-dollar question (which I still have, thanks to gmail):

the witch hunt and inquisition meme

Per Smith first alerted us to the emergence of a new meme in the debate over Mark Regnerus’s article: the “witch hunt and inquisition” meme, apparently first posted by George Yancey and roundly debunked before Yancey moved on to other pursuits. Christian Smith also advanced the claim, first in a set of vitriolic emails sent to various scholars and now in a breathless j’accuse in the Chronicle charging that the only reason for the critiques was sociology’s “progressive orthodoxy.”

bad science not about same-sex parenting

There’s lots to say about the recent article by Mark Regnerus on outcomes of adults who remember a parent having had a same-sex relationship and the other articles and commentaries surrounding it in the journal, and much has already been said. The bottom line is that this is bad science, it is not about same-sex or gay parenting, and strong but circumstantial evidence suggests its main reason for being is to provide ammunition to right-wing activists against LGBT rights. In this (long!) post I offer my evaluation of the scientific merit of the paper as well as the politics surrounding the papers’ funding, publication, spin, and evaluation.

sex work policy in canada is changing

Prostitution has had a strange legal status in Canada. Prostitution itself is not a crime, but there are a host of criminal penalties that apply to a number of activities surrounding prostitution, including soliciting clients, operating a “bawdy house” (how risqué!), and “living off the avails” of a prosititute. These provisions have been challenged in court recently, struck down, and then appealed.

The most recent decision came out yesterday by the Ontario Superior Court. In its ruling, the court ruled the ban on bawdy houses was unconstitutional, ordering legislators to change the law within a year. The court also decided that it was unconstitutional to make it illegal to live off the avails of a prostitute, but retained this prohibition under “circumstances of exploitation.” Paging Karl Marx to the Superior Court!

same-sex marriage and the courts

I am, of course, thoroughly delighted with the California federal court’s decision overturning Prop. 8 as unconstitutional under the due process and equal protection clauses, doubly so because the judge, Vaughn Walker, is a card-carrying conservative. I am also thoroughly delighted with the Massachusetts federal court’s ruling the DOMA is unconstitutional on grounds of states’ rights. However, I am a bit confused at what seems to be a contradiction between the two rulings. The Massachusetts case seems to claim that DOMA infringes on states’ rights to define marriage for themselves–that is, that federal law should not determine how states may define and regulate marriage. The California case, on the other hand, argues that the state’s decision on how to define and regulate marriage is wrong and violates federal law. Now, I thoroughly admit that IANAL and so there is likely a way that these two decisions can…er…cohabit. Thoughts?

UPDATE: I’m reading through the California decision instead of working on a pressing deadline…. it makes for great reading! There’s quite a bit that is essentially about how best to gauge the reliability of social science, and much of it picks specifically on David Blankenhorn, to wit:

24. Blankenhorn identified several manifestations of deinstitutionalization: out-of-wedlock childbearing, rising divorce rates, the rise of non-marital cohabitation, increasing use of assistive reproductive technologies and marriage for same-sex couples. Tr 2774:20-2775:23. To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization, his opinion is tautological. Moreover, no credible evidence supports Blankenhorn’s conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization.

and:

Blankenhorn’s book, The Future of Marriage, DIX0956, lists numerous consequences of permitting same-sex couples to marry, some of which are the manifestations of deinstitutionalization listed above. Blankenhorn explained that the list of consequences arose from a group thought experiment in which an idea was written down if someone suggested it. Tr 2844:1- 12; DIX0956 at 202.

50th anniversary of the pill

Happy birthday, The Pill!

(Also, May the Fourth be with you–I’m sorry; I couldn’t help myself.)

one scoop of my book, with tina topping, please!

The ASA conference will be an extravaganza of awesome, what with the blog party, the blog baseball game, and the fabulous sociology people everywhere. But wait! There is even more still. For those particularly hard-core conference-goers, who will stretch their visit to San Francisco well beyond the bounds of the conference dates, please consider attending the following event:

How the Religious Right Shaped Lesbian and Gay Activism

by Tina Fetner

A Different Light bookstore

489 Castro St., San Francisco (near Market)

Wednesday, August 12 at 7:30pm

I hope to see you there!

sex scholar witch hunt in georgia

Republican state legislators in Georgia are picking on some courses on sexuality, claiming that they are inappropriate uses of taxpayer money. I hadn’t posted on this before, because by the time I found out about it, the case seemed closed. The scholars in question testified before the Georgia House Committee on Higher Education, which received their work on HIV transmission and attitudes toward sexual behaviours well, making clear that this committee found the work to be valuable. Unfortunately, that has not stalled the state representatives, Calvin Hill and Charlice Byrd: