Class actions are in decline, while arbitration is ascendant. This raises the question: will plaintiffs’ lawyers skilled in bringing small-value, large-scale litigation – the typical consumer, employment, and antitrust claims that have made up the bulk of class action litigation over the past forty years – hit upon a viable business model which would allow them to arbitrate one-on-one claims efficiently and profitably. The obstacles are tremendous: without some means of recreating the economies of scale and reaping the fees provided by the aggregative device of Rule 23, no rational lawyer would expend the resources to develop and arbitrate individual, small-value claims against well-heeled defendants. But despite these complications, we think there are at least two possible models that might allow for informal aggregation of like claims in at least some subset of cases.

One hybrid model would seek a judicial liability judgment upon which serial, individual arbitrations could later rely. This judgment could take a number of different forms – whether a declaratory class action judgment or a decision rendered in a public enforcement action – so long as it has preclusive force that can be leveraged in subsequent arbitration hearings. A second, complementary model envisions “arbitration entrepreneurs” (either lawyers or non-lawyers) purchasing legally-identical, individual claims which our legal capitalists believe to have value in the arbitral forum. Upon procuring as many discrete claims as the market will bear, the arbitration entrepreneur would seek to resolve the hundreds or even thousands of claims she has amassed in a single arbitral session. With one arbitration entrepreneur as the lawful owner of a multitude of claims, this form of aggregation implicates neither the prohibition against class arbitration nor the contractual definition of “a claim” subject to arbitration.

The hybrid model and the claims-buying model may work independently or synergistically, depending on the case, the form that the public declaration of liability takes, and the incentives of the lawyers and entrepreneurs involved. For example, in the appropriate case, claims-buying entrepreneurs may determine that a (b)(2) declaratory judgment class action creates more and better opportunities to bundle and capture claims than market forces alone. Similarly, lawyers who obtain a judgment under the hybrid approach may determine that the best way to monetize this victory is to buy up many claims for collective arbitration. Indeed, these models present a host of possibilities, and an equal number of potential challenges; this paper is but a first step in describing and analyzing the benefits and costs of these approaches.

The Supreme Court yesterday granted cert in Northwest, Inc. v. Ginsberg, a case about whether the Airline Deregulation Act's preemption provision, 49 U.S.C. 41713(b), preempts a consumer's state-law damages claim -- a claim alleging a breach of the implied covenant of good faith and fair dealing -- regarding his removal from an airline's frequent-flyer program. The Supreme Court has addressed the ADA's preemption provision in two cases. (It has also twice addressed a related preemption provision in a trucking deregulation statute, including this Term in the Dan's City case. The petition in the Northwest v. Ginsberg had been held pending the decision in Dan's City, which came down on May 13, 2013.)

The Supreme Court generally grants a case on the petitioner's question presented, as it did in Northwest v. Ginsberg. But the parties' different views about the legal question often come through in their questions presented. Below, I have set out the airline's question presented first, followed by the consumer's question presented.

Northwest's question presented

The Airline Deregulation Act of 1978 (“ADA”) includes a preemption provision providing that States “may not enact or enforce a law, regulation or other provision having the force and effect of law related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b). Respondent was a participant in Northwest Airlines’ frequent flyer program, which by its terms permitted Northwest to remove participants from the program in Northwest’s “sole judgment.” After respondent was removed from the frequent flyer program, he filed suit against Northwest alleging, inter alia, that Northwest breached both its contractual obligations and an implied covenant of good faith and fair dealing under Minnesota law when it exercised its discretion to terminate respondent’s membership in the program. Although the district court dismissed the contract claim for failure to state a claim and the implied covenant of good faith claim as preempted by the ADA, the Ninth Circuit reversed as to the implied covenant claim, finding such claims categorically unrelated to a price, route or service under a line of Ninth Circuit cases that have been recognized by other Circuits as inconsistent with this Court’s precedents, especially American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995).

The question presented is:

Did the court of appeals err by holding, in conflict with the decisions of other Circuits, that respondent’s implied covenant of good faith and fair dealing claim was not preempted under the ADA because such claims are categorically unrelated to a price, route, or service, notwithstanding that respondent’s claim arises out of a frequent flyer program (the precise context of Wolens) and manifestly enlarged the terms of the parties’ voluntary undertakings, which allowed termination in Northwest’s sole discretion.

Ginsburg's question presented

Rabbi S. Binyomin Ginsberg is a long-standing and frequent Northwest passenger who, in 2005, earned the highest level of membership benefits in Northwest’s “WorldPerks” customer loyalty program. In 2008, Northwest abruptly revoked his status in the program. Rabbi Ginsberg filed suit alleging, as relevant here, that Northwest breached the implied covenant of good faith and fair dealing in terminating his WorldPerks membership status. The question presented is:

Did the court of appeals correctly hold that Rabbi Ginsberg’s contract claim based on the implied covenant of good faith and fair dealing is not preempted by the Airline Deregulation Act’s preemption provision, 49 U.S.C. § 41713(b), which provides that States “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier”?

For a long time, the case law under the Federal Arbitration Act (FAA) has been bad for plaintiffs who want to be in court rather than in arbitration. And it's been getting worse in recent years. Class-action bans laundered through adhesive arbitration clauses are strictly enforced, even when they are unconscionable under generally applicable state-law contract principles. And even when an arbitration clause says nothing about class actions, the FAA generally bans class actions in arbitration.

These judge-made rules have emboldened class-action defendants. They just love forcing class-action plaintiffs into individual arbitrations, which, given the the costs of individual arbitrations, generally will mean that they won't have to face off against the plaintiff class at all. So, defendants want to take advantage of arbitration clauses even when they are not parties to them.

The Ninth Circuit faced that situation in Rajagopalan v. Noteworld, LLC, a class-action involving debt settlement services and payment processing on those services. The plaintiffs sued the payment processing company, but not the debt settlement company, whose contract with the plaintiffs included an arbitration clause. The payment processing company tried to take advantage of the arbitration clause in the debt settlement company's contract with the plaintiffs under state-law third-party beneficiary and equitable estoppel theories, both of which the 9th circuit rejected yesterday.

Last Friday's Third Circuit ruling in Abraham v. St. Croix Rennaisance Group considered whether the Class Action Fairness Act (CAFA) provides federal "mass action" jurisdiction over a suit against a plant that continuously exposed nearby residents to toxic chemicals over an extended period.

First, some background. CAFA provides jurisdiction in federal district court (originally and by removal) for most minimally diverse class actions and for so-called "mass actions." Under CAFA, a mass action is

any civil action (except a civil action within the scope of section 1711(2)) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).

But there are exceptions to the definition of "mass action," one of which is for local controversies. That exception involves cases in which

all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State.

With that background in mind, take a look at this key passage from the Third Circuit's opinion, which describes the facts and the holding:

The complaint alleges circumstances that persisted over a fixed period of time–specifically, from 2002, when SCRG acquired the former alumina refinery, to the present. These circumstances included: (1) the presence throughout the former refinery site of the red mud and the various hazardous substances that were buried therein; (2) the plaintiffs’ continual exposure to the red mud and its particulates as a result of erosion by wind and water; and (3) the persistent failure of SCRG to contain or abate the hazardous substances and to remediate the premises. In short, the condition of the site during the period of SCRG’s ownership provided a source for the ongoing emission of the red mud and the hazardous substances and the subsequent dispersion onto the plaintiffs’ persons and their property. We believe that these circumstances, which the District Court characterized as the “continuous release of toxic substances from a single facility located in the Virgin Islands,” constituted “an event or occurrence” for purposes of the mass-action exclusion. [citation omitted]

Kudos to CL&P contributor Leah Nicholls, who briefed and argued the appeal for the plaintiffs.

Now, Danielle Douglas, reports that it's taking a long time for the money to be paid out. Here's an excerpt:

Banks have paid less than half the $5.7 billion in cash owed to troubled homeowners under nearly 30 settlements brokered by the government since 2008, delaying help to the millions of victims of discrimination and shoddy lending that epitomized the housing crisis, according to a Washington Post analysis of government data. When the settlements were announced, with great fanfare, government officials hailed them as the long-promised reckoning with the financial industry. Regulators found that some banks had saddled borrowers with unaffordable mortgages or assigned higher rates to minorities even when they qualified for a better deal. Some banks were accused of having employees “robo-sign” foreclosure documents without reading them or having proper documentation. ... In 2011, Wells Fargo agreed to compensate up to 10,000 borrowers after the Federal Reserve found the bank was steering them into subprime loans even though they qualified for better mortgages. But no borrowers have received money yet. Last year, Bank of America agreed to pay some borrowers between $1,000 and $5,000 for what the Justice Department called lending discrimination. The agency said the bank illegally asked some would-be home buyers who relied on disability income to provide a doctor’s letter verifying the severity of their ailment. But it’s still unclear how many people will ultimately be paid. There isn’t a full list of the victims.

Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that recent appeals court decisions have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.

In a lawsuit that echoes the worst abuses of the foreclosure crisis, [California's] top law enforcement official is suing the nation's largest bank, accusing it of using aggressive and illegal tactics to collect credit card debt from thousands of California consumers. Atty. Gen. Kamala D. Harris on Thursday accused JP Morgan Chase & Co. of operating a "debt collection mill" that flooded courts with more than 100,000 lawsuits to obtain speedy judgments before consumers could fight back. Much as banks did during the housing crisis, JPMorgan used so-called robo-signing to churn out documents without reviewing them, Harris said.

Harris's suit is part of an effort to reform a debt collection industry that consumer advocates claim is just as beset by robo-signing and other improper practices as was the mortgage industry. The debt collection reform bill mentioned in the LA Times article, SB 233, is slated for a vote in the California Senate this week.

[HT Ted Mermin]

by Ted Mermin [guest post]

Thank you for the guest post on Ticketmaster's anti-competitive practices.  Anyone who has tried to get a ticket to a popular concert or sporting event recently understands what the problem is.  But whether the organization "Fan Freedom" really represents consumers is a different question.  As the organization's website (very quietly) acknowledges, "initial funding was provided by StubHub, a division of eBay." That may or may not change anyone's feelings about the group's goals, which seem laudable. But a grassroots effort it's not.

The Harvard Law School website has an interview with Professor Larry Tribe with his predictions about what the Supreme Court is most likely to do in the two pending gay marriage cases:

[M]y hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits ... and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.

As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.

I believe that it is entirely appropriate, in the extraordinary circumstances presented both by DOMA and by Prop 8, for the executive branch, state or federal, to enforce the laws at issue until struck down by SCOTUS but to decline to defend those laws on the constitutional merits. I do nonetheless think that California should have made provision for some suitable official defense of Prop 8 in those circumstances in order to preserve the integrity of its initiative process and that the Obama administration should have arranged for the appointment of a special counsel, akin to the independent counsels appointed on earlier occasions, to defend Sec. 3 of DOMA in the federal courts once the President concluded that the Attorney General and Solicitor General should not do so...

Credit agencies that rate Wall Street's big banks were blamed for playing a pivotal role in the financial meltdown, but those agencies are still being paid for their work by the very banks they rate. That was one of the root causes of the financial crisis of 2008, according to a bipartisan Senate subcommittee that investigated the crash. Senator Al Franken, D-Minnesota, wants to stop what he calls this "pay to play" rating system. He is meeting with the Security and Exchange Commission [today] to discuss credit rating reform, and the problems with "rate shopping." "Let's say an investment bank created a financial product, say, subprime mortgage-backed securities and they wanted to get a rating on that. So, it would go shop its two different credit rating agencies and make sure that they got a AAA, whoever they picked would give them a AAA," said Franken. "It was sometimes unspoken, but the credit rating agencies knew that they wouldn't get the next gig if they didn't give a AAA." * * * Franken's bill would require an independent board to assign the initial rating of any structured financial product issued by a bank, and assign it to a credit rating agency based on the agency's expertise and track record.

Go here or click on the embedded video below to see Sen. Franken discuss the issue. Definitely worth watching.

In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes. The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes. Women were better represented, accounting for just over 17 percent of the arguments before the justices. In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.

This case concerns the preemptive scope of a provision of the Federal Aviation Administration Authorization Act of 1994 (FAAAA or Act) applicable to motor carriers. Codified at 49 U. S. C. §14501(c)(1), the provision reads:

“[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect oflaw related to a price, route, or service of any motorcarrier . . . with respect to the transportation of property.”

Plaintiff-respondent Robert Pelkey brought suit under New Hampshire law against defendant-petitioner Dan’s City Used Cars (Dan’s City), a towing company. Pelkey al-leged that Dan’s City took custody of his car after towing it without Pelkey’s knowledge, failed to notify him of its plan to auction the car, held an auction despite Pelkey’s communication that he wanted to arrange for the car’s return, and eventually traded the car away without compensating Pelkey for the loss of his vehicle.

Disposal of abandoned vehicles by a “storage company” is regulated by chapter 262 of the New Hampshire Revised Statutes Annotated. See N. H. Rev. Stat. Ann. §§262:31 to 262:40–c (West 2004 and 2012 West Cum. Supp.). Dan’s City relied on those laws to dispose of Pelkey’s vehicle for nonpayment of towing and storage fees. According to Pelkey, however, Dan’s City failed to comply with New Hampshire’s provisions governing the sale of stored vehicles and the application of sale proceeds. Pelkey charged that Dan’s City’s disposal of his car without following the requirements contained in chapter 262 violated the New Hampshire Consumer Protection Act, §358–A:2 (West 2009), as well as Dan’s City’s statutory and common-law duties as bailee to exercise reasonable care while in possession of a bailor’s property.

We hold, in accord with the New Hampshire Supreme Court, that state-law claims stemming from the storageand disposal of a car, once towing has ended, are not sufficiently connected to a motor carrier’s service with respect to the transportation of property to warrant pre-emption under §14501(c)(1). The New Hampshire law in point regulates no towing services, no carriage of property. Instead, it trains on custodians of stored vehicles seeking to sell them. Congress did not displace the State’s regulation of that activity by any federal prescription.

By not accepting review in a case, the Michigan Supreme Court has in effect allowed public employee partner benefits to remain in force, despite the decision by voters in 2004 to adopt a state constitutional amendment banning same-sex marriage and "similar unions." Earlier this year, an intermediate appellate court ruled that state employee eligibility for partner benefits did not violate the state constitution. The state attorney general appealed and the state supreme court denied review.

From the Michigan Independent:

State employees in Michigan can continue to receive health benefits for their significant others, even if they’re not married, and even if they’re gay. That’s because the Michigan Supreme Court on Thursday declined to hear an appeal from the attorney general’s office, which has been challenging a local body’s decision to offer health-care benefits to unmarried state employees, saying it violates the state’s anti-gay-marriage statute. According to Attorney General Bill Schuette, the policy treats married and unmarried couples differently.

But in January, a split appeals court panel ruled that the Michigan Civil Service Commission’s health-care policy was “unambiguously completely gender neutral” and therefore does not violate the constitutional ban on same-sex marriages or other civil unions.

Thanks to the Supreme Court’s refusal to hear Schuette’s appeal, the lower-court ruling stands.

The attorney general’s office did not respond to inquiries from The American Independent regarding this ruling; however, Joy Yearout, spokesperson for the department, told the Detroit Free Press, “We are disappointed with the ruling because Gov. (Rick) Snyder is correct that expanding state benefits costs the taxpayers millions when they can least afford it.”

Jay Kaplan, a staff attorney at the American Civil Liberties Union of Michigan, praised the Supreme Court’s decision, saying the lawsuit itself was “flawed” and “deserved to be dismissed.”

While state workers will continue to receive partner benefits, others employed by public agencies are not so lucky. That’s because last winter, Republican Gov. Rick Snyder signed a law banning local government agencies from offering partner benefits to employees.

But certain agencies were exempt from this law, such as universities and the Michigan Civil Service Commission, because they have constitutionally protected autonomy.

The ACLU of Michigan is currently challenging this 2011 law in federal court.

May 17 is the deadline for three law student awards to be presented at the Lavender Law Conference in August. Two are writing awards for papers that address either any lgbt legal issue or an issue related specifically to judicial diversity or judicial ethics.  The third is an award recognizing student leadership on these issues in his or her school community. More details here. 

Following is the essay I presented at the January ACS Conference at UCLA on the 40th anniversary of Roe v. Wade and the 10th anniversary of Lawrence v. Texas. The piece is now posted at UCLA Law Review Discourse, where you can also download it in pdf -

We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth.

—Barack H. Obama, Second Inaugural Address, January 21, 2013

Today, forty years after Roe v. Wade2 and ten years after Lawrence v. Texas,3 we can connect the dots, as President Obama suggested, linking these watershed U.S. Supreme Court decisions and the social movements that fueled them to the full panoply of claims for equality under law. Roe and Lawrence fit comfortably in the heritage of American civil rights cul­ture because they fulfill the noblest as­pirations of that ethos: to force the state to extend the full moral agency of citizenship to a disadvantaged social group. That reading stakes their claim to great­ness. But the decisions also differ in an important way. They illustrate two distinct functions of civil rights movements: to end categorical de jure inequal­ities, and to dismantle de facto hierarchies.

Lawrence exemplifies the goal of ending categorical inequality, often man­ifested in the form of blanket exclusion. The antiexclusion aspect of the civil rights paradigm arose directly and organically from the movement to challenge Jim Crow segregation laws in the South, the most famous products of which were Brown v. Board of Education4 and the federal civil rights statutes enacted in the 1960s.

Roe v. Wade, by comparison, illustrates a different and more complex version of the civil rights paradigm. The very nature of the statute that was struck down—the criminalization of certain decisions regarding pregnancy—functioned as a proxy for the subordination of women. The Court in Roe addressed an ex­clusion that was more de facto than de jure, but the gendering intrinsic to an­tiabor­tion laws was essential to their foundational harm, which was a soft form of state coercion of motherhood.5

The double anniversary of Roe and Lawrence provides an apt moment to ask what the history of the two decisions can tell us about the relationship between the civil rights paradigm and sexuality, how the legacies of Roe and Lawrence illustrate the differing functions of civil rights claims, and how future legal de­velopments related to law and sexuality may (or may not) produce greater justice for sexual minorities.

Additionally, the coincidence of the two anniversaries invites comparison of the social movements behind each decision. Specifically, today is a prime mo­ment to ask—in light of what we know about the possibilities, limits, and perils of the civil rights paradigm—why the political contingency of Roe has persisted for forty years, even as the controversy over the criminalization at issue in Lawrence ten years ago has disappeared from public debate. Assertions of re­productive rights now seemingly languish in a political and legal coma, while popular sup­port for lesbian, gay, bisexual, and transgender (LGBT) rights ap­pears to grow at almost miraculous speed.6

I. The Civil Rights Paradigm
Whatever the shortcomings of a formal equality model,7 there is an im­portant cultural reality to the sense of hope and longing that often arises from invocation of aspirational equality, of which President Obama’s speech is merely one of many examples. Its significance animates Wendy Brown’s paraphrasing of Gayatri Spivak: Civil rights protection is “that which we cannot not want.”8 In the United States, advocates for racial justice created a cultural frame for the idea of civil rights as well as a doctrinal foundation. In addition to legal arguments, the civil rights movement produced a scripture-like narrative of triumph and re­demption that has inspired every American campaign for social justice since the mid­dle of the twentieth century.9

This narrative now attaches to LGBT rights. Even as older movements con­tinue the effort to eliminate obstacles based on such factors as race or sex, LGBT equality is frequently described in such terms as the civil rights question of our time.10 Indeed, it was this premise that gave such power to how the president phrased his support for LGBT equality in his second inaugural address, even though he was repeating a position that he had stated earlier.11 The president’s speech places LGBT rights squarely in the civil rights heritage, in implicit equi­valence to its forebears, and reinforces the idea that LGBT issues are, for better and for worse, a new generation’s most emblematic civil rights claim.

What civil rights movements and arguments framed under the rubric of equality do best, and a project for which the law is perfectly suited, is ending de jure exclusions and categorical inequalities. The Supreme Court did precisely that in Lawrence and it may do that again in a marriage case in the near or distant future. In the past, when a challenged statute has contained an exclusion or other absolutist result, the Court has sometimes found a law unconstitutional under even a weak constitutional standard.12

What civil rights movements and equality arguments do not do so well is dis­mantling hierarchies. Social hierarchies often incorporate exclusions, but they are more complex and more enduring. Reva Siegel conceptualized the resilience of stratification systems as “preservation through transformation,” a process by which a legal reform that ends the categorical inequality that is fundamental to a status regime—such as racial segregation—will nonetheless permit the modern­ization of rationales for inequality, and thus preserve the inequality itself.13 Blaming disadvantage on cultural factors, such as single-parent households, is an example of such a modernization. The result is that much of the structure of racial hierarchy can remain in place, even though the arguments for why such hierarchy is natural have shifted and narrowed from biological inferiority to the inferiority of social arrangements.

If we measure the state of sexual freedom by the ending exclusions prong of the civil rights paradigm, it is in terrific shape. In fact, possibly the greatest gift from the quasi-mythologized history of civil rights in the 1960s is the sense of the inevitability of victory over irrational bias. The idea of an American march of progress toward equality for all now incorporates LGBT issues, to the point that the single question in the gay marriage debate about which the largest number of people agree is probably the eventual outcome: Nationwide legalization is in­evitable.14 The most solid evidence for the claim of inevitability may be demo­graphic data showing high levels of support among younger age groups,15 but the frame of inevitability for the achievement of formal equality was crucially shaped by the American experience of a succession of earlier civil rights movements, especially those seeking to end discrimination based on race, sex, and disability.

If, however, we measure the state of sexual freedom in anti-hierarchy terms, the conclusion is far less optimistic. The fragility of abortion rights is illustrative. The Court’s decision in Roe, even as reconfigured somewhat more along women’s equality principles in Planned Parenthood of Southeastern Pennsylvania v. Casey,16 triggered less an end to exclusion than a protracted forward-backward dance over how much autonomy women have to make decisions as to the procreative dimensions of their lives. The result is a weakened form of subordination. As a formal matter, women can choose to have abortions and the state cannot abso­lutely prohibit abortion in all circumstances. Access to care, however, re­mains highly contested, so that low-income and African-American women, who are most likely to have an abortion,17 remain at the bottom of this dimension in the hierarchy of sexuality.

The dynamics of claiming a subordinated identity creates a process that is more complex than a linear march to justice. A group’s mobilization for civil rights claims leads directly to legal challenges to formal classifications by the state that discriminate against the group. As these efforts become more successful, a parallel social process occurs in which the excluded group or identity is in­creas­ingly normalized, becoming more widely viewed as acceptable. Perversely, the elimination of a dramatic exclusion can make the residual hierarchy appear more, rather than less, legitimate because the problem of the former irrational exclusion has been fixed. Thus, for example, the invalidation of sodomy laws may enhance the apparent reasonableness of laws criminalizing other consensual sex­ual conduct—such as nonrisky sex by persons with HIV.

A failure to differentiate these two different projects—ending exclusions and dismantling hierarchy—can only muddy critical analysis of civil rights cam­paigns and equality principles. By understanding the limits of each discourse, schol­­ars and advocates could avoid both naïve expectations and underappreciated achievements.

II. Comparing Roe and Lawrence
The two cases whose anniversaries we consider illustrate these points. Lawrence stands as an example of ending a specific exclusion. In that case, the Supreme Court ruled that states could not criminalize the sexual conduct that largely defines homosexuality, thus reversing Bowers v. Hardwick.18 The sodomy laws struck down in Lawrence had been the basis for courts to rule that, if it was permissible for a state to criminalize this form of sexual conduct, governments could surely engage in less draconian forms of adverse treatment, including job discrimination and denial of custody rights.19 On that reasoning, gay people stood as almost by definition unequal before the law, lacking in many ways the essential criterion of citizenship, “the right to have rights.”20

The ruling in Lawrence is based on protection of liberty under the Due Process Clause and not on guarantees under the Equal Protection Clause, but its most powerful social message has been legitimation of equality for gay people. Despite the Court’s eschewing of an equal protection rationale,21 LGBT rights organizations successfully framed Lawrence as a declaration of equality.22 The fact that it formed a political, although not doctrinal, bridge to the first ruling by a state’s highest court that same-sex couples must be granted the right to marry cemented that popular understanding.23 Lawrence remains the high watermark of the LGBT equal rights movement to date.

Much like Lawrence, Roe v. Wade is also a liberty/equality compound. Roe’s holding that the liberty-based right to privacy encompasses the decision whether to have an abortion stemmed from the Due Process Clause, rather than the Equal Protection Clause, but it is understood socially as central to women’s equality. By the time Roe was decided, the abortion rights movement had migrated from its historical origins in the efforts to legalize birth control dating from the early twen­tieth century to serving as a key component of the mobilization of women for the second wave of feminism.24 The Supreme Court opinion in Roe, even cabined as it was by concern for physician decisionmaking, established the social understanding that a woman’s right to choose was at stake, not merely the de­criminalization of a medical procedure. As the Court itself recognized in the Casey opinion that reaffirmed much of Roe, control of one’s reproductive capacity is essential for women’s ability to realize other life choices, whether as individuals, workers, or citizens.25

Roe, however, differs from Lawrence in important ways, because it involved a far messier, more complex set of hierarchies than were present in the challenge to sodomy laws. At issue in the abortion litigation was not just gender hierarchy but also hierarchies of religious and professional medical authority. One marker of the complexity of Roe’s backstory is the broad range of legal arguments in the amicus briefs filed in the case. These included arguments that prohibitions on abortion constituted sex discrimination and discrimination based on poverty,26 as well as Thirteenth Amendment and Establishment Clause arguments.27 The Supreme Court did not rely on, or even acknowledge, any of these amicus briefs, but the decision sub silentio disturbed multiple hierarchies, especially those in­volving medical and religious establishments, in addition to the gendered control of reproduction.

By contrast, Lawrence was litigated narrowly, carefully constructed to avoid a challenge even to adultery laws, much less to laws banning prostitution or other socially disfavored but consensual sexual acts.28 In one hierarchy of sexualities (including queer and heterosexual identities), anthropologist Gayle Rubin placed sex workers, transgender people, and consensual sadomasochist activists at the bottom.29 The reality of this stratification remains in place post-Lawrence, and, with the exception of transgender people, the groups who reside at the bottom have moved very little if at all.

Lower federal courts have expanded the lacunae in the Lawrence opinion. For example, the Eleventh Circuit interpreted the Supreme Court’s statement in Lawrence that the decision did not involve children to justify holding that the liberty interest upheld in Lawrence was irrelevant to whether adoption rights could be made contingent on whether the prospective parents engaged in homosexual sex.30 Other courts have relied on the same language in Lawrence to find that laws prohibiting commercial sexual acts are constitutionally permissible.31

Although Roe has been dogged by the problems associated with challenges to hierarchy, I do not mean to argue that this one characteristic of Roe provides the sole explanation for why it remains a political lightning rod forty years later. That phenomenon is truly overdetermined, given that Roe was decided during an extraordinarily turbulent historical moment. It was decided during a period that was marked by the convergence of massive change in multiple arenas: a rev­olution in the nonmarital sexual practices of young adults, the end of the Warren Court, the dawning realization that in Vietnam the United States had for the first time lost a major military conflict, and the beginning of a realignment in electoral politics driven by the Republican Party campaign to build a then-new coalition of southern whites and northern social conservatives, including opponents of abortion.32

There is no way to prove the precise mechanisms through which these various issues interacted, to such powerful effect. But the fact that demands to re­verse Roe v. Wade became so dominant in, and instrumental to, the rise of con­servative politics in the 1980s should tell us that its social meaning and resonance far exceeded the bounds of a debate over decriminalization of a particular act or even how to categorize fetal forms of life.

Conclusion
The Supreme Court today appears to understand the ending of exclusions to be apex of its authority to conduct judicial review under the Equal Protection Clause. It seems far less bothered than it once was by stark social hierarchy, and more likely to accept that the benign operation of political and economic markets will lead to the optimal point of resolution for contestations over status. The rollback in affirmative action protections is merely one example. Judicial discourse in the past thirty years has contributed to, rather than inhibited, the stran­gling of egalitarian idealism in American culture.

This anti–civil rights tendency, however, is not written in stone. The last thirty years is not the next thirty years. There are historical moments when social and doctrinal change accelerates. For example, when the Court decided Roe in 1973, it had been only twelve years since it had ruled that a Florida law allowing women to opt out easily from jury service rationally reflected women’s predom­inantly domestic role in society.33 In 2003, the Court reversed a constitutional precedent of only seventeen years’ standing when it decided Lawrence.

Today, it has been seventeen years since Congress enacted the Defense of Marriage Act (DOMA), prohibiting federal recognition of same-sex marriages that are valid under state law.34 Perhaps the Court will resuscitate the charmed rhythm of the Hardwick-Lawrence sequence and rule this year that DOMA is un­constitutional.35 If it does, another unjust exclusion will fall.

Even if that occurs, however, it will remain an uphill battle for social justice advocates to dismantle the remaining hierarchy of sexualities and to achieve a ful­ler legal and social understanding that the freedom to define and practice one’s sexuality is a civil right.

President Barack H. Obama, Inaugural Address by President Barack Obama (Jan. 21, 2013), available at http://www.whitehouse.gov/the-press-office/2013/01/21/inaugural-address-president-barack-obama. ↩
410 U.S. 113 (1973). ↩
539 U.S. 558 (2003). ↩
347 U.S. 483 (1954). ↩
Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 737, 788–91 (1989). ↩
See, e.g., Marjorie Connelly, Support for Gay Marriage Growing, but U.S. Remains Divided, N.Y. Times, Dec. 7, 2012, http://www.nytimes.com/2012/12/08/us/justices-consider-same-sex-marriage-cases-for-docket.html (“In a Pew poll conducted in October, 49 percent of respondents said they favored allowing gays and lesbians to marry legally and 40 percent were opposed. Four years earlier, in August 2008, the numbers were just about reversed: 39 percent in favor and 52 percent opposed.”). ↩
See, e.g., Robin L. West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713, 719–23 (2011). ↩
Wendy Brown, Suffering the Paradoxes of Rights, in Left Legalism/Left Critique 420, 420 (Wendy Brown & Janet Halley eds., 2002) (internal quotation marks omitted). ↩
Cf. Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 2–4, 139–140 (2011) (describing what Balkin calls “the Great Progressive Narrative”). ↩
E.g., Emily Bazelon, The Civil Rights Case of Our Generation, Slate (Dec. 7, 2012, 4:56 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2012/12/supreme_court_to_hear_gay_marriage_cases_the_justices_agree_to_hear_windsor.html (reporting on the Supreme Court’s decision to hear two same-sex marriage cases); see, e.g., Editorial, Next Civil Rights Landmark, N.Y. Times, Dec. 7, 2012, http://www.nytimes.com/2012/12/08/opinion/next-civil-rights-landmark.html; Chris Good & Pierre Thomas, Eric Holder: Gay Marriage Is the Next Civil Rights Issue, Abc News (Feb. 28, 2013, 7:00 AM), http://abcnews.go.com/blogs/politics/2013/02/eric-holder-gay-marriage-is-the-next-civil-rights-issue (quoting Attorney General Eric Holder); Susan Kelleher, Gregoire: Same-Sex Marriage “the Civil Rights Issue of This Generation,” Seattle Times (Nov. 6, 2012, 9:50 PM), http://blogs.seattletimes.com/politicsnorthwest/2012/11/06/gregoire-same-sex-marriage-the-civil-rights-issue-of-this-generation. ↩
See, e.g., Jackie Calmes & Peter Baker, Obama Says Same-Sex Marriage Should Be Legal, N.Y. Times, May 9, 2012, http://www.nytimes.com/2012/05/10/us/politics/obama-says-same-sex-marriage- should-be-legal.html. ↩
See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (precluding equal treatment for gays and lesbians unless state constitution was amended); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (excluding children not legally in the United States from public schools). ↩
See Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2175–78 (1996) (internal quotation marks omitted). ↩
See David von Drehle, How Gay Marriage Won, Time, Mar. 28, 2013, http://swampland.time.com/2013/03/28/how-gay-marriage-won (describing, in part, the selection of gay marriage as the Time cover story for that week). ↩
See, e.g., Connelly, supra note 6 (noting that “[i]n a Gallup poll conducted [November 2012], 73 percent of people between 18 and 29 years old said they favored [same-sex marriage]”). ↩
505 U.S. 833, 856 (1992). ↩
Stanley K. Henshaw & Kathryn Kost, Guttmacher Inst., Trends in the Characteristics of Women Obtaining Abortions, 1974 to 2004, at 12, 14 (2008), http://www.guttmacher.org/pubs/2008/09/18/Report_Trends_Women_Obtaining_Abortions.pdf; Rachel K. Jones et al., Patterns in the Socioeconomic Characteristics of Women Obtaining Abortions in 2000–2001, 34 Persp. on Sexual & Reproductive Health 226, 231–32 (2002), http://www.guttmacher.org/pubs/journals/3422602.pdf. ↩
478 U.S. 186 (1986); see Lawrence v. Texas, 539 U.S. 558, 578 (2003) (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”). ↩
Lawrence, 539 U.S. at 581–84 (O’Connor, J., concurring). ↩
Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren, C.J., dissenting). ↩
Lawrence, 539 U.S. at 575. ↩
Nicholas Pedriana, Intimate Equality: The Lesbian, Gay, Bisexual, and Transgender Movement’s Legal Framing of Sodomy Laws in the Lawrence v. Texas Case, in Queer Mobilizations: LGBT Activists Confront the Law 52 (Scott Barclay et al. eds., 2009). ↩
See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003); cf. Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1947 n.207 (2004) (noting that the Massachusetts Supreme Judicial Court “relied heavily on the equal respect dimension of the Lawrence analysis”). ↩
Cf., e.g., John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America 314–15 (1988); Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028, 2042–46 (2011). ↩
See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 852 (1992). ↩
See Linda Greenhouse & Reva B. Siegel, Before Roe v. Wade (2012), available at http://documents.law.yale.edu/sites/default/files/BeforeRoe2ndEd_1.pdf, for a collection of the briefs filed in Roe, including a brief arguing that a prohibition on abortion was an unconstitutional discrim­ination based on poverty, id. at 324–28. ↩
See, e.g., id. at 339–46. ↩
Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas 184–89, 193–96 (2012). ↩
See Gayle S. Rubin, Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality, in Deviations: A Gayle Rubin Reader 137, 153 (2011). ↩
See Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004), reh’g denied, 377 F.3d 1275 (11th Cir. 2004), cert. denied, 543 U.S. 1081 (2005). ↩
State v. Freitag, 130 P.3d 544, 545–46 (Ariz. Ct. App. 2006) (holding that the defendant “reads Lawrence too broadly”); People v. Williams, 811 N.E.2d 1197, 1198 (Ill. App. Ct. 2004) (holding that a prostitution statute does not violate any fundamental right); State v. Thomas, 891 So. 2d 1233, 1237 (La. 2005) (stating that “there is no protected privacy interest in public, commercial sexual conduct”). See generally J. Kelly Strader, Lawrence’s Criminal Law, 16 Berkeley J. Crim. L. 41 (2011). ↩
See, e.g., D’Emilio & Freedman, supra note 24, at 330–32, 347–49; Greenhouse & Siegel, supra note 24, at 2052–67. ↩
See Hoyt v. Florida, 368 U.S. 57, 62 (1961) (“We cannot say that it is constitutionally im­permissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.”). ↩
See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (codified at 1 U.S.C. § 7 (2006) and 28 U.S.C. § 1738C (2006)). ↩
See Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), cert. granted, 133 S. Ct. 786 (2012), which may produce an opinion analyzing whether the Defense of Marriage Act is constitutional. ↩
 

The combination of this glaring gap in civil rights protections and a rapid upsurge in popular support for extending the equality principle to lgbt persons may explain the increasing tendency of courts to see evidence of sex stereotyping in these forms of discrimination, especially instances involving gender identity. The benefit of using that approach allows plaintiffs to recover under Title VII, the federal law banning sex discrimination in employment. 

From Business Management Daily:

...[T]he EEOC has begun an effort to protect LGBT workers’ rights by broadly interpreting Title VII of the Civil Rights Act of 1964. The EEOC’s newly released Strategic Enforcement Plan for 2013-2016 lists “coverage of lesbian, gay, bisexual and transgender individuals under Title VII” as one of its top six national en­­forcement priorities. Expect the EEOC to take significant enforcement actions soon and litigate issues more aggressively....

The EEOC Title VII effort to protect LGBT workers relies on a broad definition of sex discrimination, treating harassment and discrimination claims under a “sex stereotyping” theory.

In April 2012, the EEOC issued a landmark ruling concerning the protections of transgender employees under Title VII. In an appeal filed by a transgender woman denied a job at a federal agency, the EEOC ruled that discrimination complaints based on gender identity, change of sex or transgender status are recognized under Title VII. It was the EEOC’s first direct and universal guidance on transgender protection.

Previously, the EEOC had concluded that lesbian, gay, and bisexual individuals alleging harassment stated valid sex discrimination claims under Title VII, provided the allegations related to sex stereotyping. Those rulings reinforced the notion that em­­ployers could not discriminate against individuals whose actions were in­­con­­­­­­sistent with traditional notions of gender-specific conduct, because of a person’s claimed gender identity or status as transgender, or because of a planned or recent sex change.

The courts’ views

Courts, however, have been reluctant to extend Title VII protections to discrimination claims based solely on sexual orientation. LGBT individuals cannot currently succeed in their claims unless their discriminatory treatment resulted from impermissible “sex stereotyping” or “gender nonconformity.”

This logic is based mostly on the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which found that Title VII barred not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender. The case hinged on whether an employer’s refusal to promote a female senior manager to partner because she did not act as some partners thought a woman should amounted to “sex” discrimination. The Supreme Court ruled that discrimination for failing to conform to gender-based expectations violates Title VII.

Most courts have extended this ruling to cover LGBT employees discriminated against for noncompliance with gender stereotypes or failure to meet stereotypical expectations of femininity or masculinity.

In contrast, courts are split on whether complaining about discrimination based on sexual orientation is actionable “protected activity” under Title VII. The 9th Circuit and district courts within the 2nd Circuit have found that action is protected, while the 6th and 7th Circuits disagree.

What it means for employers

The EEOC’s new emphasis on LGBT protections will shape its future en­­force­­ment and litigation against private employers, especially in states that don’t protect gender identity or sexual orientation. Expect the EEOC to educate the LGBT community about its recent rulings. Also expect more charges and more vigorous investigations.

Other realms that might find closer EEOC scrutiny include policies and practices affecting hiring, advancement, harassment, training, dress/appearance standards, restroom access and employee benefits. The commission will be looking for evidence of gender stereotyping.

Advice: Make sure your policies are neutral with regard to sexual orientation, gender identity and expression, and prohibit harassment based on sexual preference, gender stereotypes or intolerance.

In advance, plan your response to the needs of transgender employees. Develop guidelines and procedures for managing during the gender reassignment process. Issues to consider include dress codes and bathroom access policies, determining leave and maintaining confidentiality. Think about providing sensitivity training to co-workers and supervisors to increase tolerance and awareness.

Ten years ago, the Supreme Court ruled in Lawrence v. Texas that a state could not criminalize consensual adult sexual conduct because of a belief that the conduct was immoral. It carefully limited the decision, however, noting that sex work, for example, did not fall within the scope of the liberty right being protected. Thus the Court established what should be the floor for constitutional protection of sexual liberty. So far, however, it has been the ceiling.

A panel of professors and advocates at a Williams Institute conference tackled the complications and unfairness that arise from the hyper-criminalization of sexual conduct by persons with HIV.  The majority of states treat sex without disclosure of HIV status as a felony -- regardless of whether the conduct engaged in carries any risk of transmission. Although one can argue that non-disclosure vitiates consent, Professor Kim Buchanan of USC pointed out that non-disclosure of other, even possibly fatal diseases (hepatitis C), as well as various other forms of deception related to sex, do not negate consent under the law. Sexual dishonesty is certainly not a virtue, but it is also never a crime and seldom a tort, unless HIV is involved.

What stands out most about HIV criminalization laws is the gross disparity between culpability and punishment. As Catherine Hanssens of the Center on HIV Policy and Law noted, the punishment for a drunk driver committing vehicular manslaughter is less in most states than the penalty for an HIV positive person engaging in sex with a zero or near zero risk of transmission, or even spitting at a law enforcement officer. How many such prosecutions occur is unknown, but they number at least in the hundreds.

The result can be punishment that is wildly disproportionate to the underlying conduct, like the individual who is convicted of a felony for non-risky sex and then, because of that, ends up for life on a sex offender registry, or the asylee who loses his status and right to stay in the U.S. because he offered to perform oral sex on an undercover police officer.

Lawrence was an enormous victory, but the irrational criminalization or degree of criminalization of stigmatized sex goes on.

The Fifth Circuit has granted rehearing en banc (2013 WL 1276022) in EEOC v. Boh Brothers, 689 F.3d 458 (5th Cir. 2012), in which a panel of that court had overruled a jury verdict for a male plaintiff who alleged sexual harassment based on gender nonconformity in violation of Title VII. The panel found that the evidence was insufficient that the  nonconformity triggered the supervisor's vulgarity. The plaintiff alleged that he was subjected to "raw homophobic epithets and lewd gestures." The appeals court, however, characterized the supervisor as a "world class trash talker" and ruled that the evidence did not support the jury verdict of gendered harassment. The court did not reach the broader question of  "whether sex stereotyping is a cognizable form of same-sex harassment under Title VII."

In a gratuitous footnote, the panel of three judges stated that 

To be clear, even in the straightforward discrimination (as opposed to sexual harassment) context, permissible and impermissible sex stereotyping are separated by degree. An employer is not prohibited from requiring some degree of conformity with what is generally expected in the context of the job. For example, an employer may require a certain conformity of dress, and it is difficult to conceive that an employer would act unlawfully by prohibiting men from wearing dresses, heels, lipstick, etc.

This is potentially an important case because it may become the vehicle for another circuit to weigh in on whether same-sex harassment violates Title VII when based on gender stereotyping, which is usually expressed in anti-gay insults (regardless of whether the plaintiff is gay or, sometimes, is even thought to be gay). All other circuits that have ruled on this point have accepted that it is a viable claim. A Fifth Circuit ruling that agrees with the other Courts of Appeals will further cement the understanding that anti-gay harassment in the workplace can be actionable under Title VII. If the court disagrees with that theory, however, it will create a split in the circuits and an opportunity for the Supreme Court to resolve the issue.

This year is the 25th anniversary of a watershed case involving the conflict between religious liberty and lgbt rights.  In Gay Rights Coalition v. Georgetown University, the DC Court of Appeals held that the DC Human Rights Law required the University to accord the benefits of recognition to gay student groups at the Law Center and at main campus. The court separated the question of endorsement, which the University had a right not to do, from the material benefits at issue, which the University was forced to provide.

The Georgetown decision was an extremely important milestone in LGBT rights law. After the decision, the University elected not to pursue a petition for certiorari to the U.S. Supreme Court and, instead, granted benefits to the gay student organizations. The suit had dragged on for almost a decade, and the legal battle had been bitter.

How amazingly times change. Last month, the law school held a symposium celebrating the decision and recognizing the student and faculty leaders who had stood up for equality. Dean William Treanor read names of the law school faculty members who signed an amicus brief in the 1980s supporting the gay student group. Lorri Jean, then leader of the plaintiff group and now CEO of the LA Gay Community Center, gave a compelling account of how it felt to be David in this battle against a Goliath.  In the most  amazing sign of change, the audience included the head of the (official) LGBTQ Resource Center on main campus, which now gives the Lorri Jean Award each year to a graduating student. With her was Paul Tagliabue, a Georgetown alum who donated $1 million to support the Resource Center. The office of University President John DeGioia was one of the sponsors of the event. 

There is video of this extraordinary event, and a special issue of the Georgetown Journal of Gender and Law, which organized the symposium, will publish the proceedings.

It made me proud of Georgetown. 

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory... But at what price?

[W]hat reverberated from the bench was the discordant music of federalism – the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course at the Supreme Court with the departure of two of its most energetic guardians of states’ rights, Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.

I’m hardly the only one to have heard this music; some other progressives have sounded downright relieved at the prospect that if there aren’t enough votes on the court to strike DOMA down on equality grounds, at least the law might fall to the argument that defining marriage is the states’ business, into which the federal government has no business intruding. In The New Republic, Jeffrey Rosen criticized Roberta A. Kaplan, the lawyer for the plaintiff, Edith Windsor, and more mildly, Solicitor General Donald B. Verrilli Jr., for not embracing the federalism alternative served up to them by Chief Justice John G. Roberts Jr.

But as these two lawyers clearly recognized, striking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture.

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law professors under the title, “Brief of Federalism Scholars.” One of the group, Prof. Randy Barnett of the Georgetown University Law Center, is justly regarded as the intellectual father of the Commerce Clause attack on the Affordable Care Act. “DOMA falls outside Congress’s powers” because “marriage is not commercial activity,” the brief declares. It argues further that by limiting federal recognition to marriages between men and women, the law “undermines the states’ sovereign authority to define, regulate and support family relationships.”

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

And of course the most famous federal intervention of all was Loving v. Virginia, the 1967 decision (shockingly recent) that overturned the laws of Virginia and 15 other states prohibiting marriage between people of different races. Virginia maintained that its law did not amount to racial discrimination because the prohibition ran equally in both directions – just as blacks couldn’t marry whites, whites couldn’t marry blacks either.

Consequently, the state argued, the case came down to a simple matter of federalism. But Chief Justice Earl Warren’s unanimous opinion didn’t buy it. “Marriage is one of the basic civil rights of man,” the court said. “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The right, in other words, belonged to the individuals involved, not to the state.

The federalism attack on DOMA picked up steam in the days before the March 27 argument. Professor Michael McConnell of Stanford Law School, a leading constitutional scholar and social conservative, wrote in the Wall Street Journal that if the court both avoided the merits in the California Proposition 8 case (as appears likely) while striking down DOMA on federalism grounds, “the combined effect would be to reaffirm America’s democratic, decentralized decision-making process without imposing an answer – one way or the other – to the same-sex marriage question.”

The headline on George Will’s pre-argument Washington Post column proclaimed: “DOMA Is an Abuse of Federalism.” Mr. Will, whose enthusiasms in the realm of legal affairs often mirror those of his friend, Justice Antonin Scalia, relied heavily in his column on the “federalism scholars’” brief.

I hate to sound cynical, but where have these people been for the past 17 years? Where were they when Edith Windsor got a federal estate tax bill of more than $300,000, a tax she wouldn’t have had to pay had DOMA not barred the Internal Revenue Service from recognizing a spousal exemption based on her New York-recognized marriage to her partner of more than 40 years?

Can it be that the conservative legal world is afraid that it can’t hold Justice Anthony M. Kennedy to an antimarriage position and so is trying to cut its losses by persuading him that if he takes the federalism route, he can have same-sex marriage (in the nine states that already have it) and states’ rights too?...

Last week, Solicitor General Verrilli, pressed repeatedly to say something nice about federalism, refused to play the game. The case, he insisted, was about “discrimination.” Lawyers rarely get the chance to speak to the court in paragraphs. When Mr. Verrilli got that chance, he took it, telling the justices: “I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect.”

It was as eloquent a statement of principle as the court hears these days. Will it translate into at least five votes? I’d like to think so.

This year is the 10th anniversary of Lawrence v. Texas, the Supreme Court decision that found the Texas sodomy law unconstitutional. So - no more worries about sodomy laws, right? Wrong. There are still sodomy laws on the books in 18 states; most of these laws are felonies. You might think they would be dead letters after Lawrence, but think again. Although they cannot be enforced in situations involving consensual adult sexual relations in a sequestered private space with no exchange of money, many courts have refused to recognize that serious constitutional questions of equal treatment under law can arise in other situations as well.

A week from today, on Friday the 12th, the Williams Institute at UCLA Law School is hosting a half-day conference on "Lawrence + 10" examining where LGBT law stands 10 years after this watershed opinion.  One panel will address the continuing criminalization of consensual sexual (homo or hetero) conduct that falls within the definition of "sodomy" (oral or anal sex).The problem is illustrated by the Nevada "infamous crime against nature" law. This week, the ACLU filed a federal court challenge to this law because its effect is to penalize the same conduct differently depending on whether same-sex or different-sex partners are involved. The complaint states:

The 'crimes against nature' statute creates a double standard that treats identical conduct differently based solely on whether the sexual activity involves two persons of the same sex. Under Nevada law, sixteen is the legal age of consent to engage in 'ordinary sexual intercourse, anal intercourse, cunnilingus or fellatio.' N.R.S. § 200.364. The statute setting the age of consent, N.R.S. § 200.364, makes no distinctions between heterosexual or homosexual activities. But a separate statute that criminalizes solicitation of a minor to engage in 'crimes against nature,' singles out the identical conduct for severe criminal penalties when it involves two 'persons of the same sex.' N.R.S. § 201.195.2. The 'crimes against nature' statute thus enables prosecutors to circumvent the age of consent established by N.R.S. § 200.364 and prosecute identical conduct under N.R.S. § 201.195 if, and only if, the sexual conduct involved a same-sex couple.

Similar issues of intrinsic inequality in the post-Lawrence regime of sex crime statutes arise in situations involving the pervasive and irrational criminalization of sexual conduct by persons who are HIV positive with no regard to whether this conduct poses a risk of transmission or the abusive use of sodomy charges against sex workers, which occurs when the sodomy law is a felony charge and the anti-prostitution law is a misdemeanor. The Louisiana sodomy law, like several others, required those convicted of its violation to register as sex offenders, which will literally brand a person for life. These draconian penalties led to a successful challenge to the Louisiana law by the Center for Constitutional Rights in cooperation with Women With a Vision, a New Orleans health advocacy group, and the Loyola Law School Clinic.

If you're interested in these issues, come to the Williams event if you are in southern California; if not, check back on that web site for video of the panel.