Legal Writing for Legal Reading!

Archive for the month “January, 2018”

How Self-Expression Replaced Love As the Most Important Part of a Marriage

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in The Cut which, I thought, was pretty insightful. Be edified.


In 2004, HBO aired the final episode of Sex and the City. Carrie Bradshaw (Sarah Jessica Parker), the self-centered but appealing journalist, has moved to Paris to pursue a relationship with Aleksandr Petrovsky (Mikhail Baryshnikov), the brilliant but distant artist. Aleksandr, preoccupied by a major exhibition of his work, neglects Carrie, who increasingly pines for New York and her friends there.

We, as viewers, aren’t surprised when she leaves him, and we aren’t surprised by the explanation she gives for breaking off their relationship. She’s disappointed because her love with Aleksandr is insufficient, but her larger concern is that the relationship fails to afford the expression of a central aspect of her identity — “it’s time to be clear about who am,” she tells him, with emphasis on the I. We cheer her on, especially because we know something she doesn’t — that the love of her life, Mr.
Big (Chris Noth), has conquered his emotional avoidance and wants to commit to her. But few of us consider her breakup explanation in historical context, and the fact that not long ago, it would have seemed absurd.

America has witnessed three major eras of marriage. The first, which extended from the colonial period until around 1850, had a pragmatic emphasis in which marriage was primarily oriented toward helping spouses meet their basic economic and survival needs. During the second era, from 1850 until around 1965, marriages had a love-basedemphasis that placed a premium on helping spouses meet their love and intimacy needs. During the third era, from around 1965 to today, marriage has a self-expressive emphasis that places a premium on spouses helping each other with their authenticity and personal-growth needs.

In the mid-1960s, Americans began to prize a new brand of individualism, expressive individualism, that cherishes self-discovery and psychological growth. Expressive individualism is characterized by a strong belief in individual specialness; voyages of self-discovery are viewed as ennobling.
“There is in you something that waits and listens for the sound of the genuine in yourself,” the philosopher and theologian Howard Thurman declared in a 1980 commencement address capturing the essence of expressive self. “Nobody like you has ever been born, and no one like you will ever be born again — you are the only one … If you cannot hear the sound of the genuine in your life, you will all of your life spend your days on the ends of strings that somebody else pulls.”

More recently, the psychologists Roy Baumeister and Michael MacKenzie argue that the self has become a fundamental value base, an entity “that is itself accepted as an inherently positive good on its [own], without reference to other, even more fundamental values.” Religious people typically view God’s will as a value base; they don’t feel compelled to ask why it’s important to prioritize God’s will. As Western societies have secularized, “the self has taken on ever more luster as a powerful value base.” The pursuit of self-expression has become a moral good in and of itself.

The moral righteousness of achieving authenticity has powerful implications for marriage. “Not long ago,” observes the sociologist Eric Klinenberg, “someone who was dissatisfied with his or her spouse and wanted a divorce had to justify that decision. Today it’s the opposite: If you’re not fulfilled by your marriage, you have to justify staying in it, because of the tremendous cultural pressure to be good to one’s self.”

The rise of the self-expressive marriage has also overhauled our views about the optimal ways for spouses to interact. Consider changes in the advice offered in women’s magazines. According to the communications researcher Virginia Kidd, “putting aside of self was defined as loving behavior” during the long decade of the 1950s, “and conversely thinking of self first was unloving and displayed lack of genuine concern for others.” Starting in the mid-1960s, the emphasis shifted to the development of one’s authentic self and bringing spontaneity to the marriage. In one study, researchers coded advice in women’s magazines from 1900 to 1979 for the presence of traditional themes like “love means self-sacrifice and compromise” and self-expressive themes like “love means self-expression and individuality.” This period witnessed a strong long-term trend toward self-expression, an effect that would have been even stronger if not for the brief self-expressive surge during the Roaring Twenties. Whereas 20 to 30 percent of the relevant articles expressed self-expressive themes in the 1930s and 1940s, nearly 70 percent did in the 1970s.

In a 2014 study, when American college students were asked to define what the term mate value means to them, they recognized the standard domains like compatibility, commitment, and physical attractiveness, but they also emphasized the importance of having a partner who brings out the best in them. In the words of one student, “I really feel like someone of ‘mate value’ would be someone who helps me become the best person I can be, the best version of myself.” This student’s definition strikes to the heart of the self-expressive era: All of us have many possible selves, but most of them are inferior variations of our authentic or best self; we are looking for a spouse who elicits that version of ourselves.

By Eli Finkel and published in The Cut on September 19, 2017 and can be found here.


Yessource: Live in Denver, 5/9/91

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Iowa’s Supreme Court Hears Dispute Over $75 Speeding Ticket

I have been writing in opposition to traffic cameras for a few years now.  A woman called Merrit Kennedy, writing for NPR, relates the story of Marla Leaf who litigated her camera-ticket all the way to the Iowa Supreme Court.

My other writings on Traffic Cameras can be found here:


Blog Posts:


A dispute over a $75 speeding ticket has climbed through the levels of Iowa’s court system, reaching the lofty heights of the Iowa Supreme Court for oral arguments.

Marla Leaf got a speeding ticket because a camera allegedly caught her driving 68 mph in a 55-mph zone on an interstate freeway through the city of Cedar Rapids in February 2015.

It’s not typical for the state’s top court to hear small-claims cases. But in her case against the city of Cedar Rapids, Leaf argues that her constitutional rights and state law were violated because the city delegated police powers to the private company that maintains the speed cameras.

Opponents of automated traffic enforcement may view such cameras as “unduly intrusive, unfair and simply amounting to sophisticated speed traps designed to raise funds for cash-strapped municipalities by ensnaring unsuspected car owners in a municipal bureaucracy under the circumstances where most busy people find it preferable to shut up and pay rather than to scream and to fight,” Leaf’s attorney, James Larew, told the justices on Wednesday.

He said his clients “refuse to be stilled.” Leaf’s case has been joined with another that involves similar issues.

At various levels of Iowa’s court system over more than two years, Leaf has said she believes she was not speeding, especially because of slippery road conditions that day. The cameras are triggered if they record speeds of more than 12 miles over the speed limit.

Leaf’s case argues that it is unlawful to give the authority to assess speeding — something it says is police work — to the private camera company, Gatso.

Can the assessment of a municipal violation be done, Larew asked, “by the police department appointing a friend of theirs to serve as a hearing officer?”

Lower Iowa courts have been satisfied that the system is constitutional because it is the police department — and not the private company — that ultimately makes the decision to issue a speeding ticket.

“There is never a citation issued that does not get reviewed and approved by a police officer,” Gatso attorney Paul Burns told the justices. According to court documents, Gatso receives $25 per citation.

Larew also argued that there is no valid safety reason for the camera system on Interstate 380 — also the site of alleged speeding violations by the other parties to the case. He said the cameras don’t issue tickets to semitrailers and government vehicles, calling the discrepancy arbitrary and a violation of equal protection.

The camera system works by focusing on back license plates, which government vehicles do not have in Iowa. Patricia Kropf, an attorney for the city, told the court that the excluded vehicles are “just not in the database that we need to use to do this in a cost-effective manner.”

Burns also claimed that photographs taken of front license plates would potentially pose privacy concerns because the faces of passengers in the vehicle might be included.

Larew also challenged whether it is constitutional for the city of Cedar Rapids to assess fines for speed on federal interstate highways.

The future of certain speed cameras is up in the air across the state, The Gazette newspaper writes:

“In March 2015, the Iowa [Department of Transportation] ordered 10 of 34 camera locations on primary highways and interstates around the state turned off, and another three moved or modified, stating they didn’t improve the safety of the highway system. After losing an appeal to the Iowa DOT director, the cities of Cedar Rapids, Des Moines and Muscatine — three of six cities in Iowa with traffic cameras on state highways or interstates under Iowa DOT control — sued in June 2015 to keep the cameras on.”

By: Merrit Kennedy and originally published by NPR on The Two-Way on September 20, 2017 and can be found here.


Yessource: Rehearsals on 5/5/91 in Champaign

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

6th Circuit: Remaining Convictions In Amish Beard-Cutting Case Stand

This is from religionclause.blogspot.com which you can find here:

In United States v. Mullet, (6th Cir., May 4, 2016), the U.S. 6th Circuit Court of Appeals affirmed convictions of 15 members of the Bergholz, Ohio Amish community on charges of conspiracy, concealing evidence and lying to the FBI.  The convictions grew out of hair and beard-cutting attacks by one faction of the Amish community against other Amish. Originally defendants had also been convicted of hate crimes, but those convictions were reversed in an earlier appeal due to faulty jury instructions. The government chose not to retry defendants on those charges. (See prior posting.)  In yesterday’s decision, the 6th Circuit held that because the challenges raised to the remaining convictions were not raised in the first appeal, they cannot be raised now.  The court also rejected various challenges to the sentences imposed by the trial court.  Reuters reports on the decision.

You can learn more about this issue here.

Yessource: Live in Montreal, 4/24/91

Here are my latest uploads to YesSource, my Yes rarities youtube page (about which you can read here).  This post is another addition to my series of Yes music posts and a collection of all my Yes-related posts is here.  Yes, of course, is a, if not the, premier progressive rock band, and I am an enormous fan of it.

You can see all of my Yessource uploads here.

My latest YesSource uploads can be found here:

Muslim Woman Sues Long Beach Police Over Forced Removal of Hijab

This is from religionclause.blogspot.com which you can find here:

“A suit was filed last week in federal district court in California against the city of Long Beach and its police by a Muslim woman who says that her hijab (headscarf) was forcefully removed while she was being booked by police and held overnight in jail on outstanding warrant charges.  The complaint (full text) in Powell v. City of Long Beach, (ED CA, filed 4/29/2016), alleges that police policy violates RLUIPA, the 1st Amendment and the California constitution.  It seeks damages and an injunction requiring a change in policy so that the police department accommodates religious head wear of those being booked into police custody.  The suit also seeks to enjoin the public release of plaintiff’s booking photo which shows her with her head uncovered. LA List reports on the lawsuit.”

You can learn more about this issue here.

Yes, Topographic Drama – Live Across America: a Review

This post is the part of my Yes concert series of posts.  I started this series here and you can read the others here.

Yes has just released its latest live album called Topographic Drama – Live Across America documenting their 2016 tour.

The line-up Yes fielded on this album is:

The track list is as follows (the album from which the songs come in parenthesis):

Disc One:

Disc Two

  • Review:

I have written several reviews on this blog.  I have reviewed albums, concerts, movies, and books.  One of the things I have realized is that any review, whether good or bad or high quality or low, is almost always dependent upon what one expects from the thing reviewed.  Deviation from expectation nearly always leads to bad reviews while meeting expectations nearly always leads to good.  There is also the “damned-if-you-do-damned-if-you-don’t” variation of the expectations problem of making an album that sounds too much like prior albums (is this respect for an established sound or a reflection of a lack of creativity?) or sounding too little like prior albums (is this disrespect for an established sound and rejecting what Yes (or whomever) is “supposed” to sound like?); Yes’ last studio album Heaven and Earth suffered from this quandary (see here).  I have done my best to acknowledge my expectations when reviewing things, but I am sure I, too, have fallen victim to expectations.

I mention this because, as this is a Yes album purchased nearly only by Yes fans (I doubt many causal music listeners are buying a random new live album by a ~50 year old prog rock band that is largely out of fashion).   Jon Anderson, Yes’ co-founder, composer, and long time vocalist, left Yes in 2005 or so, and Yes has toured and released albums and videos without him since 2008.  It goes without saying that Anderson is enormously influential on Yes and, for many, is inherently identified with Yes.  Similarly, Chris Squire, Yes’ other co-founder who defined Yes’ sound for a generation and is the only member who never left the band and is the only member present in every official Yes iteration until 2015, died in June 2015.   Indeed, due to his constant presence in the band from its founding to his death, Squire, too, is often inherently identified with Yes.

I mention the above because, no matter what this album sounds like and no matter how good the performances are, this album will never pass muster or sound like “real Yes” for many fans.  Davison and Sherwood are different people than Anderson and Squire and, despite their similarities to Anderson and Squire, can never precisely duplicate Anderson or Squire (of course, if they did, they would be then accused as aping Anderson and Squire, which leads to an impossible conundrum: on one hand they are criticized for not sounding like Davison and Sherwood, but on the other, if they sound too similar, they are accused of being uncreative copycat hacks.  I suppose this is why some say Anderson and Squire should never be replaced and Yes should fold.).   In light of this, this album, and indeed this iteration of Yes, will never be heard in a positive way by many Yes fans due to its lack of Anderson and/or Squire.  So, just for full disclosure, while I am a Yes “fanatic,” I am of the school of thought that is willing to allow Yes to move on from Anderson and Squire and into a new reality where Davison and Sherwood are taking the band into its next phase of existence, and will judge it accordingly.

This album documents the 2016 tour.  I had the opportunity to see a show from the 2016 tour and most of my thoughts about this album mirror that show, so I will not repeat what I said about that show here; just look at my review for my thoughts on it here.  Instead, I will just focus on this album.

With the above out of the way, and in the light of the above, I can say that this album is an excellent album of well played and well executed Yes music.  The playing is at the level a Yes fan should expect.  The vocals are soaring and well harmonized.  The guitar playing is aggressive and intricate.  The drumming is solid and driving.  The keyboard playing, arguably the most questionable of the instruments in this iteration of Yes, are exactly what one should expect from a Yes keyboard player: Downes plays expertly and successfully adds his own flavors to Rick Wakeman‘s material albeit in his own style.  Finally, Sherwood’s bass playing, which is significant in Yes history as this is the first time Squire is not the bass player on an album, more than does Squire justice.  Sherwood plays all of the parts with heart and maintains a very Yes sound while giving his bass tone a sound unique to him.  Sherwood is somehow able to channel Squire, his style and sound, all the while sounding like himself at the same time.  It is really magical and exactly what one should expect from a Yes member.

The sound of this album is near perfect.  Every instrument is clearly audible, well balanced, and easily identifiable.  All the vocals, sounds, and playing are really crisp.

I loved hearing the Drama material, which from 1981 to 2008 was totally ignored, played in full here.  It was really special to hear “Into the Lens” and “Does it Really Happen?” as those songs have not been played live since 1980.  Perhaps most interesting is that this album documents a live performance of “Run Through the Light” which had never been performed live before the 2016 tour.

This album, to me, is a superb Yes album.  Unless one specifically listens for the stylistic differences between Davison and Anderson or Downes and Wakeman or Squire and Sherwood, I found it very easy to get lost in the music and sound and forget who is in the lineup.  This album, despite featuring a very new and different lineup, sounds like Yes and what Yes should sound like.

If I had to, there are admittedly some nits to pick.  The tempo in some of the songs is a tad slow (mainly the songs featuring White as the drummer).  So, “Machine Messiah” is a little slow, “Roundabout” seems a little slow to my ears (perhaps this is only in contrast to older live versions which were faster than in the studio), and “Starship Trooper” (though this is mainly Howe’s doing).  Of course, when it comes to “Starship Trooper,” its been slower since the band started trying to precisely replicate the studio version starting in 2013 (see here), and the slower tempo I hear is in contrast to older and faster live versions and not the studio version.  Some say “Tempus Fugit” sounds slow, but I think it sounds as fast as any live version I have heard and that, according to Howe, it has never been played live as fast as on the studio.  “Roundabout” is a snore to me (and usually skipped to be honest), but that is mostly due to it being utterly overplayed and over-included on collections like this.  Finally, it probably goes without saying that Davison was brought on board because he can sing Anderson’s songs well and in the same (or similar) register as Anderson and in a similar style.  Unfortunately, one of the featured albums on this collection is Drama which features Trevor Horn as lead vocalist.  Davison’s voice creates a little bit of a different feel for the Drama songs as compared to how Horn sang them.  For a lot of it, honestly, you do not notice it, but there are times, like during “Does it Really Happen?” or “Into the Lens,” where Horn’s vocals are short, crisp, trippy, or terse, as opposed to Anderson’s more soaring and melodic vocals, where Davison’s approach is a bit of an awkward fit to the music.  On one hand his vocals could be seem as an interesting approach, and a window into how Anderson could have approached this material, while, on the other, they seem ill-suited to the music which was crafted for Horn’s vocals.  Luckily those moments are fairly few and far between.  Indeed, for the heavy-duty Yes fan, Davison’s take on “Does it Really Happen?” could be an interesting insight into how Anderson would have sung the song were he to have remained in the band as it was, interestingly enough, originally an Anderson song (see here for a recording of the song with Anderson).  In fact, Davison sheds a little light on what an Anderson sung Drama could have sounded like in general.

I have to say that I really enjoyed this album as it shows a new Yes with energy that has its own stamp while, at the same time, sounding like how Yes is expected to sound.

  • Packaging:

The album is packaged as a digipak and the artwork is pictured below.  As one can see, the album artwork is standard Roger Dean work and also includes some quality photographs of the band.

  • Photographs:

Obergefell and the Right to Other People’s Children

Every now and again I come across a fantastic article the warrants posting here; I recently came across one in the First Things which, I thought, was pretty insightful. Be edified.


We’re mournfully familiar with the constitutional right of mothers to be rid of their own prenatal children. Now coming into view is an adult right to possess and have authority over other people’s recently born children. What this means, and portends, merits more consideration than it is presently receiving.

Those who dissent from created verities tend to vacillate between disclaiming the reality they contest and depending on it. After entreating the Supreme Court to rule in Obergefell v. Hodges that marriage is not about children and the procreative union of husband and wife, but instead about adult companionship, affection, and government dignity-conferral, individuals in marriage-licensed same-sex partnerships now demand access to children—because they are married. As the law traditionally presumed that a child born to a wife was the child of her husband, now the law must deem the female partner of a mother to be the child’s other . . . parent. Thus, advocates of marriage-redefinition borrow from the institution they just assassinated the legal standards historically associated with it—as if these could survive the death of their source, and sensibly transfer to same-sex relationships.

Representative of this trend is the case of Pavan v. Smith, ruled on by the Supreme Court earlier this summer. In that litigation, two same-sex female couples in marriage-licensed relationships sued the State of Arkansas. The couples demanded the automatic entry of both women’s names on the original birth certificate of the child born to one woman. The state of course had designated the child’s mother on the birth certificate. The mother’s companion, though unrelated to the child, demanded the same. The plaintiffs argued that Obergefell requires that upending of state policy.

The Court in Obergefell did indeed recite that “the States . . . have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities,” and the Court included “birth . . . certificates” in its illustrative litany. But this is rather beside the point. What marriage has entailed “throughout our history” is exactly what the Court’s ruling in Obergefell was designed to overthrow. Obergefell’s revision of marriage severed the connection of marriage to traditional birth certificate policy.

States “throughout our history” assuredly did not grant automatic birth certificate entries to persons categorically unrelated to the child. Nor did states throughout our history fashion birth certificates whose contents indicate that the child has two mothers and no father, or two fathers and no mother. When the Court in Obergefell alluded to states’ traditional linking of marriage to birth certificates, the statutory tradition it referenced was the rebuttable legal presumption of the husband’s paternity of the child born to his wife, which in turn was documented in the record of the child’s birth.

Due to the redefinition of marriage as a two-humans partnership rather than a complementary husband-wife union, the character of the marital relationship must be defined down to the points of commonality that exist among those now populating the category. The message of Obergefell is that what does not describe couples of the same sex must be erased as a feature of marriage. The procreative generativity of the man-woman union must be only an incidental occurrence (however statistically common) attending certain of those in the redefined relationship of state-licensed marriage; it is no longer a feature of marriage. As such, the traditional policies of paternity, legitimacy, and birth certificate documentation—each conceptually dependent on “pre-redefinition marriage”—are anachronisms properly detached from legal marriage in its redesigned form. To retain the policies would be to retain a legal significance to features of marriage that same-sex couples cannot generate.

As a result, there would seem to be two analytical options available in response to same-sex partner demands for automatic parenthood. Either the policies of paternity, legitimacy, and birth certificate design that derived from the husband-wife relation must be ejected from marriage as such, or those historic policies must be reconstructed to serve an alternate purpose. For instance, instead of birth certificates acknowledging the natural descent of the child and documenting the bond to mother and father, their updated purpose may be to ennoble and reward adults in certain relationships by documenting the prize of child custody given them—notwithstanding that their licensed relationship did not, and is of a form that could not, bring the child into the world.

Under either option, plaintiffs’ “equality” claim to a constitutional right to child-access should fail. For in the first scenario, if the traditional policies are now dissociated from marriage, they no longer may be claimed as its incidents. In the second, if the policies are retained in name but redefined, then they are not the policies that the states have tied to marriage “throughout our history.” They have no pedigree of association with matrimony to serve as precedent for their current demand.

What litigants are left with, then, is a nominal trick: Something called “paternity” or “birth certificate” was historically associated with something called “marriage,” so the nouveau policies appropriating those old names must be bundled, too. Remarkably, this bait-and-switch has been credulously received and rewarded by courts and agencies across the country.

But when courts impose on the historic paternity presumption a “gender-neutral” reconstruction, they in effect (to borrow a phrase) castrate it and bid the gelding be fruitful. These courts take hold of a policy founded in a physiological reality and written into the law as such—that discerns and assigns paternal status and authority precisely in the natural relation of fatherhood bound to motherhood and offspring—and then separate that policy from the ontological weight of the relation that has always justified it. Yet the courts then proceed as if the hollowed-out remainder yielded a basis on which to assign an adult the presumptive authority to possess and direct the upbringing of an unrelated child.

The equivocation in this maneuver is galling. Also damning is the advocates’ ambivalence concerning the analogy of same-sex partners to unions of mother and father. If the natural mother-father relation to the child is inconsequential (the Pavan plaintiffs describe the procreation rationale as “specious”), then so is the same-sex partner model whose demand for comparable treatment is staked on an analogy to it.

That nullifying move also attends the reliance on and repudiation of the paternity standard. The historic paternity presumption was directed to the identification of the father. It has no application to women at all, whose maternity of children was demonstrated by giving birth to them. Nor is the paternity presumption relevant to men in same-sex relationships, as their conduct has no relevance to procreation. And as the paternity presumption was grounded in biological fact, it could be rebutted by biological evidence.

What the family-redefinition advocates in fact clamor for is neither the biological paternity standard nor its attending rebuttable presumption. They instead demand that physical “paternity” be transmuted to legal “parentage,” and the “rebuttable presumption” be replaced with “irrefutable fact.” In sum, they demand de-sexed parentage-upon-demand for an individual adult who lays claim to somebody else’s child as a means of bolstering the naturally bereft though artificially legal status of same-sex spouse. Arkansas Supreme Court Chief Justice Brill candidly put forth the revised outlook: “The right to a birth certificate is a corollary to the right to a marriage license.” Children are now accessories attending adult legal status.

It’s a strange sort of lying when the state issues a birth certificate that declares a child has two mothers and no father. It’s a lie everyone knows is a lie. But the fact that no one is fooled doesn’t mitigate the damage. When this sort of lying endures as official government policy, it impresses upon the community the public irrelevance of the matter about which it lies, and converts the lie into a sort of legal truth—which carries systemic authority and gravitational pull. Moreover, the lie is cemented into vital records and the child is deprived of knowledge of family descent. That deference to adult demands at the cost of children’s identity-awareness entails what Rabbi Gilles Bernheim called the irreversible scrambling of genealogies. Here again, that is more than a private deprivation; it is a public repudiation of natural family ties.

This brings us to the combination of technological advance and moral retreat manifest in assisted reproductive technologies (ARTs). These technologies have rendered sexual congress unnecessary and (more terrifyingly) conceptually irrelevant to making babies—a crucial shift easing the redefinition of marriage. And the prevalence of contemporary legal concessions to ARTs has muddied the waters analytically in the task of resolving who is the child of whom. Thus in Pavan, the opening the plaintiffs exploited is the fact that Arkansas law contains a narrow exception to its biology-based paternity rules: The state assigns paternity to the husband of a wife whose child was conceived via anonymous donor insemination. As the women in the Pavan case who gave birth had also been impregnated with donor sperm, their female partners demanded a de-sexed approximation of paternity (i.e., “parentage”).

But even in this compromised context, there remains an expressive policy interest in treating same-sex and husband-wife couples differently. Though ill-advised, Arkansas’s explicit countenancing of artificial insemination in its paternity assignment to the mother’s husband can be interpreted as a concession to, rather than approval of, the off-scene employ of extra-marital insemination. The invasion of the marital relation by the extramarital father might be mitigated by the law’s public maintenance (through its paternity designation) of the ideal of marital fidelity and the integrally related fatherhood of the husband, even if the private reality is to the contrary. But in the context of a female couple, the opposite policy lesson is communicated. Such a couple with a child in tow presents an irrepressible message of fatherhood-denigration and third-party intervention into the relationship. That message contradicts the maxim motivating the exceptional standard they demand be revised to encompass their circumstance.

Yet perhaps Obergefell’s achievement was, after all, to forbid any such legal distinctions directly or indirectly drawn from the procreative model. The Court having redefined marriage to eliminate its connection to sexual complementarity and the institutional binding together of mother-father-child, there is cause to doubt whether those natural bonds are allowed any longer to matter in law at all, for any reason. For the key point is not what features the Court abolished, but what it abolished them from: namely, the archetypal, paradigm-resolving public institution that represents the law’s understanding of human nature. The Court having banished the norm of kinship from the marital family (ever its vital locus), it would be incongruous to permit that norm’s survival anywhere else.

If state birth certificate regulations prioritize the recording of genealogy rather than functional custodial assignments, they defy the anthropology that Obergefell teaches and relies upon. State laws situating the child’s identity in hereditary descent assigns legal valence to a feature of reality to which same-sex couples cannot contribute. Notable, then, is the Supreme Court’s ruling in Pavan that Arkansas must give up its policy devoted principally to that end—at least in the form found in its current statutory scheme.

The distressing challenge presented by modern constitutional jurisprudence in this field is its denial of stable essences or fixed law. Law instead takes its form through a process of evolution guided by elite negotiation, in terms always reinforcing the contingency and provisional character of whatever may be the latest determination. Any apparent impediments to further evolution in family redesign are ultimately insecure, being vulnerable to surmounting by the combination of confessedly inventive legal interpreters and the logical pull of the principles now loosed upon us. As those principles esteem adult choice and role functionality rather than blood ties, they justly invite policymakers’ experimentation with family forms, as well as their deference to a wide array of functional innovations adults may select.

Nevertheless, this realm of jurisprudence remains unresolved and thus viably contested. In neither Obergefell nor Pavan did the Court devote attention to the significance and disruptive consequences of treating biological motherhood and fatherhood as legal equivalents to functional relationships of adults with other people’s children. Nor did the Court acknowledge the doctrinal collision of a standard of biology-irrelevance with wide swaths of historic domestic relations standards and the Court’s own due process case law. In view of the Court’s analytical silence on the immense controversies implicated in doing so (a subject for another essay), it is yet unwarranted to interpret its rulings as intending to annihilate the legal significance of ancestry and natural parent-child connections, with all their pathos-laden profundities. States may need to pivot legislatively at certain points, but they still have ample cause to hold fast to their historic natural family regulations—and should.

The uniqueness, fecundity, functional elegance, relational logic, and social value of the husband-wife marital relation testify to its created meaning and intentions. Its preservation as an institution in law and society is indispensable to preserve the eminently public truth of human identity as embodied and familial. We may suppress that truth in our epoch of mandatory incomprehension, but seeing the obvious remains available. One should hope it will not require the pitiless crowbar of events to compel our return to collective acknowledgment. But should it be so, the resultant clarity may be a mercy to future generations having in hindsight an instructive exemplar of disaster.

By Jeff Shafer and originally published in First Things on September 21, 2017 and can be found here.

The Dirty Secrets of Sexual Harassment: A Behind-the-Scenes Perspective

Check out Faye Cohen’s post to her blog Toughlawyerlady!


The topic of sexual harassment has been trending in the news, prompted by the revelations made against Harvey Weinstein and many other men by women who allege harassment by these men, some of these allegations occurring many years ago. There are conflicting opinions as to whether and how to report sexual harassment, what the likely outcome of said reporting will be for the accuser, and even what is interpreted as sexual harassment by women of various ages. For example, in October, 2017, ThePhiladelphia Inquirer ran an interview with a seasoned lawyer about her experiences in handling sexual harassment cases. Although her responses appeared a little blunt, they resonated and affirmed not only my experiences but, indeed, the experiences of any seasoned employment lawyer in handling such cases.

The interview unleashed a barrage of vitriolic criticism attacking the lawyer, with many people expressing dismay at her advice and conclusions, and…

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