The 1990s, Fulcrum of Change: Politics and Culture

In his campaign for president in 1992, Bill Clinton did something surprising: he advocated for gay rights. After winning the presidency, however, he was unable to integrate gay soldiers into the military as he had promised to do. Congress instead created a program known as Don’t Ask, Don’t Tell, which forced gay soldiers back into the closet. Congress also passed, and President Clinton signed, the Defense of Marriage Act, which prevented the federal government from recognizing same-sex marriages and allowed states to continue to deny marriage rights to same-sex couples. In 1997 television star Ellen DeGeneres came out as a lesbian both in person and in character on her TV show Ellen, becoming one of the most prominent out-of-the-closet gay people in the US.

A Queer Reading of the United States Census

LGBTQ neighborhoods face change. Planning for these neighborhoods requires data about LGBTQ residential concentration. Some analysts have used US Census same-sex partner data to make judgments about LGBTQ neighborhoods. Two agency actions make this reliance problematic. The US Census was required to enforce the Defense of Marriage Act and reassigned some LGBTQ responses in a heteronormal way. The Census also assigned sex based upon patterns of names. These US Census actions of gay removal and sex assignment to datasets raise questions about the usefulness of the partner dataset. A queer reading of the census may give a better representation of neighborhood development and decline. Data are developed for four queer neighborhoods: the West Village in New York City, Center City Philadelphia, Midtown Atlanta, and Midtown Kansas City. The results show that queer attributes of these areas grew to about 1990. Some queer attributes may have declined some from their peak. The results raise questions about social surveys, the closet, and the direction of LBGTQ neighborhoods in the twenty-first century. LGBTQ displacement has occurred.

Theoretical Perspectives on LGBT Representation and Party Politics

LGBT people have gone from being a “politics” to a “people” from the end of the 20th century to the beginning of the 21st. They were mostly excluded from public life, and reduced to their sexuality. And when they weren’t reduced, they were restricted. Legislatures, not only failed to protect LGBT people from discrimination, but created new barriers for them under the guise of “protecting” the presumed heterosexual and cisgender basis of society. In America, the Defense of Marriage Act, (DOMA) and Don’t Ask Don’t Tell (DADT) are the most consequential examples of legislative action that treats LGBT people as morality issues rather than citizens. As LGBT people have gone from the margins to the center of public life, however, their political status changed. LGBT people are no longer a sexuality—but a constituency. There is an undisputed electoral connection. Legislators act on behalf of LGBT constituents in symbolic and substantive ways ranging from membership in LGBT caucuses in their chambers, to voting for bills that clearly help LGBT citizens in specific ways. They also exert pressure on representatives for whom they share no electoral connection, and who are not themselves LGBT. These allies act for LGBT citizens because they it aligns with ideological beliefs in justice and equity. This growth in activity has not only been limited to the US Congress, but has also occurred in US state legislatures and around the world. Activity has not always been synonymous with success, as the US Congress’s long struggle to pass an Employment Non-Discrimination Act (ENDA) that is inclusive of all aspects of the “LGBT” umbrella demonstrates. Nevertheless, LGBT voters are no longer “an issue”, but a part of the polity. Now that “LGBT” is an established political group there are serious questions that need to be addressed about what is being represented—and why it matters.

Monstrous Marriage

This chapter explicates Sapphire's novel 1996 Push, alongside the 1996 Welfare Reform Act, 1996 Defense of Marriage Act, Farrakhan's 1993 book Torchlight for America, and Sweet Honey in the Rock's 1983 song Testimony in order to unmask the political burden placed on African American marriage and Black love. It illustrates the ways in which touting marriage and heteropatriarchal family as a political responsibility enables intimate partner violence or domestic abuse.

Passive-Aggressive Executive Power

What do the death penalty, driving violations, drugs, deportation, and the Defense of Marriage Act (�DOMA�) have in common, besides the letter �d�? The answer is passive-aggressive executive power, and in the brief discussion that follows, I use these five factual contexts to illustrate five variations of what I mean. When those charged with enforcing the law would prefer not to, what they do is not so different from what the rest of us do when pushed. At least five passive-aggressive responses easily come to mind�and at the outset, I set aside the �Just say no� response, which is an exercise of executive power but is not in the passive-aggressive category (because it is just plain aggressive). Here are the five responses: (1) do nothing, and hope nobody notices; (2) do something silly, and make a mockery of the whole enterprise; (3) say that you would do something, but you are too busy; (4) say that you would do something, but you are not competent; and say, in a moment of rare clarity and self-awareness, �Fine, I�ll do it, but let�s just be clear�I don�t want to.� In the discussion that follows, I first flush out these responses with my five examples�the death penalty, driving violations, drugs, deportation, and DOMA. I then offer some normative thoughts about each of these responses using the standard of a reasonably prudent thirteen-year-old and parallel institutional considerations in the realm of executive power.

The Moonscape of Tax Equality: Windsor and Beyond

108 Northwestern University Law Review Colloquy 110 (2013)This essay takes a critical look at the tax fallout from the U.S. Supreme Court's decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples. In this essay, I first describe the path that led to the decision in Windsor. Then, I turn to describing the ways in which the post-Windsor tax terrain may actually be worse for same-sex couples than the bleak tax landscape that they faced before that decision. Under DOMA, same-sex couples already faced a debilitating level of uncertainty in determining how the federal tax laws applied to their relationships. Post-Windsor, same-sex couples will see this uncertainty multiply -- even after receiving guidance from the IRS on the implementation of the Windsor decision in the federal tax context. They will have to grapple not only with lingering questions surrounding the federal tax treatment of relationships that are not recognized, but also with new questions regarding whether and how their relationships will be recognized for federal tax purposes. Moreover, it seems that dispatching discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our federal tax laws rather than fostering the recognition of a broader array of human relationships.

Big (Gay) Love: Has the IRS Legalized Polygamy?

"93 North Carolina Law Review Addendum 1 (2014)Within days in December, a federal judge in Utah made news by loosening that state's criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court's decision last June in United States v. Windsor, which struck down section three of the federal Defense of Marriage Act (DOMA). In exploring that possibility, this essay continues my work analyzing the shortcomings of the IRS's implementation of the Windsor decision. The Secretary of the Treasury promised that IRS guidance would provide same-sex couples with "certainty and clear, coherent tax-filing guidance." To the contrary, I have explained that the IRS's guidance provides no more than the same veneer of clarity that DOMA did, because it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences. In this essay, I extend that analysis by explaining how ambiguity in the IRS's guidance may also have unintentionally opened the door to recognizing plural marriage for federal tax purposes."

Dropping the Other Shoe:Obergefelland the Inevitability of the Constitutional Right to Equal Marriage

After having invalidated the federal Defense of Marriage Act (DOMA), the U.S. Supreme Court “dropped the other shoe” inObergefell v. Hodgesby declaring the exclusion of same-sex couples from marriage at the state level unconstitutional. Written by Justice Kennedy, the majority opinion heavily relied on the dignity-bestowing character of marriage to show why this exclusion is so harmful. But this strategy comes with a cost: it inflicts a stigma even as it conveys recognition—a drawback that an equality analysis can avoid. Respondents had argued that opening marriage dangerously disconnected marriage from procreation, both the historical reason for and the essence of marriage. In finding that they had failed to provide evidence for the harmful outcomes they described, the majority not only provided the rational basis test with a new kind of “bite.” It also asserted that tradition or religious beliefs were not enough to justify exclusion. Once secular purposes define marriage and rational reasons are required to regulate access, the road to marriage equality opens wide. As the line of cases leading up toObergefellsuggests, and developments in Germany, Austria, and other jurisdictions confirm, equality works as a one-way ratchet—albeit without necessarily including polygamy and incest. Crucially, equality changes the focus: From an equality perspective, the harm lies not in the exclusion from a dignity-conferring institution, but in the suggestion that the excluded group is not worthy of participating in it and does not deserve the recognition and benefits associated with it. Instead of aspiring to achieve dignity through marriage, in this view same-sex couples claim recognition as free and equal citizens. Discrimination on the basis of race, gender, or sexual orientation subsumes an individual under a group category whose purported characteristics are systematically devalued, thus refusing to appreciate a person as an individual. It is this denial of recognition that conveys harm to the dignity of the individual above and beyond the respective disadvantage suffered. Thus taken with equality, dignity does not have the exclusive effect it has in isolation, as struggling against degrading exclusion stresses common traits.