Obergefell is a “building block” toward expanding legal protections for children
August 04, 2015
In her August 4th post on PrawfsBlawg, Denver Law Associate Dean and Professor Catherine Smith argues that Obergefell—the landmark same sex marriage rights decision—opens a path that can lead to stronger protection of equal rights for children of unmarried parents. “The United States,” she notes, “has a long history of discrimination against children of unmarried parents” and denying them “many legal and social benefits as a way to show moral disapproval of their parents’ decision to have them outside the bonds of marriage.” Though the Obergefell Court recognized the harms of marriage bans on children of same-sex parents, it did not cite or reference non-marital status cases extending equal protection status to non-marital children. “Nevertheless,” writes Professor Smith, “this rich equal protection law precedent offers great promise post-Obergefell for children’s rights advocates” and “could serve as a potential building block in expanding the legal and economic protections for children in many types of family configurations and for developing a more robust meaning of ‘family.’”
See Professor Smith’s PrawfsBlawg post for the argument in detail.
HNBA President (and Denver Law grad) Cynthia Mares on the lack of diversity in the legal profession
July 13, 2015
“As the current president of the Hispanic National Bar Association (HNBA), I spend a lot of my time talking with students, lawyers, and judges about the frustrating disconnect between the frequently expressed commitment to diversity in the legal profession and the absence of real progress in achieving that diversity.”
So writes Cynthia Mares. A Denver Law grad, Ms. Mares began her second term as Arapahoe County Public Trustee in early 2015. She was first appointed to the position in 2012 by Colorado Governor John Hickenlooper.
Her recent article in The Federal Lawyer documents and then examines why “this commitment to diversity and inclusiveness just doesn’t seem to be translating into the kind of measurable progress you might expect.” And she talks about paving a better path going forward.
Implicit bias plays a role in decisions that bar or hold back diverse attorneys, she notes. “There is evidence, though, that we can work around our implicit biases.” And she points out that, “Corporate culture that encourages diversity and inclusion can have real benefits for other reasons as well.” Her article highlights efforts to diversify the legal profession undertaken by corporations, law firms and the HNBA.
When changing social norms lead to changes in the law
July 02, 2015
Visiting Denver Law in August, 2012, as the Workplace Law Program’s Keynote Speaker, EEOC Commissioner Chai Feldblum spoke on the topic, The Creation of Social Change: Disability and LGBT Rights. She explained that advances in rights result from synergy that develops among three sources—the law, policy in practice and social norms. Here’s how she defined the three: the law is the text adopted by legislators, administrators and the judiciary; whether and how the text of that law is absorbed into the daily practices of an organization accounts for policy in practice; and social norms are understandings that engage the hearts and minds of people.
Now think about how these three sources interact, and which of the three leads the change. In the case of LGBT rights, Commissioner Feldblum stated that changes in the law are the product of changing social norms. Those norms encourage development of policy in practice. An example is protections for employees of differing sexual orientations adopted voluntarily by many prominent companies. At some point, according to the scheme developed in Commissioner Feldblum’s Keynote Address, the law will catch up.
While Chai Feldblum was discussing LGBT rights in the workplace, her proposition, that changes in social norms and policy in practice can precede and push forward changes in the law, applies as well to evolution in the law of marriage relating to same-sex couples. And, again, business entities are key catalysts in this process.
Consider the landmark U.S. Supreme Court case Obergefell vs. Hodges. Among the many amicus briefs submitted in favor of Obergefell and other petitioners was the Brief of 379 Employers and Organizations Representing Employers . The authors argue that the dual regime (prior to the Court’s decision in Obergefell), wherein some states permit marriage for “all of our employees and colleagues; others prohibit marriages between couples of the same sex and refuse to recognize existing same-sex marriages,” burdens employers. “It creates legal uncertainty and imposes unnecessary costs and administrative complexities on employers, and requires differential employer treatment of employees who are similarly situated save for the state where they reside.” The result is that “[s]tate laws that prohibit or decline to recognize marriages between same-sex couples hamper employer efforts to recruit and retain the most talented workforce in those states.” (Statements above are found on pages 1-2 of the brief. The 379 employers and organizations composing the amici curiae submitting this brief fill pages 2 through 13).
It’s been said more than once that “What’s good for business is good for America.” You can argue whether that view holds or not in all domains of public policy. In the opinion of the 379 employers signing onto this brief, however, the Court’s historic decision in Obergefell—holding that same-sex couples have a fundamental right to marry—will help them prosper.
To close the circle on this discussion, let’s think about protections against discrimination in the workplace. That was Commissioner Feldblum’s focus during her talk at Denver Law. (See what else she did and said at Denver Law that day.) The fight for LGBT rights is likely to head this direction next. See for example this early word on that view, offered by Erik Eckholm in the New York Times two days after the Supreme Court announced the Obergefell decision.
- Randy Wagner (email me here)
Q-and-A: Catherine Smith takes a close look at the ruling in the same-sex marriage case
July 01, 2015
Interviewed for the University of Denver Magazine, Catherine Smith, professor of law and Associate Dean for Institutional Diversity and Inclusiveness at Denver Law, offers her analysis of the Supreme Court’s decision in the landmark same-sex marriage case, Obergefell v. Hodges. Click here for the Q-and-A session.
Historic SCOTUS decision establishing right to same-sex marriage cites brief by Catherine Smith
June 26, 2015
The historic decision establishing that the Constitution guarantees a right to same-sex marriage, announced by the U.S. Supreme Court on June 26, 2015, cites an amicus brief submitted by Denver Law professor Catherine Smith to support the proposition that “[m]arriage also affords the permanency and stability important to children’s best interests.” (Obergefell v Hodges, 2015, at page 15). Professor Smith, who also serves DU’s Sturm College of Law as Associate Dean for Institutional Diversity and Inclusiveness, co-authored the brief with legal scholars Lauren Fontana, Susannah Pollvogt and Tanya Washington. Their brief states that Supreme Court precedent “unequivocally establish[es] that states may not punish children based on matters beyond their control.” And “state marriage bans inevitably and necessarily perform exactly this impermissible function because they deprive children of same-sex couples legal, economic and social benefits associated with the institution of marriage.”
Denver Law Offers Diversity Fellowship for Lawyering Process Teaching Position
June 19, 2015
The posting for the position described below is found on the DU jobsite here.
NYTimes Room For Debate on “How Fluid is Racial Identity?” features Nancy Leong
June 17, 2015
Our society, writes Denver Law associate professor Nancy Leong, “values racial identities differently in different circumstances.” Leong joins a group of academics and commentators discussing issues presented by the example of Rachel Dolezal, enmeshed in a controversy about her racial identity. Professor Leong concludes that, “So long as different racial identities have different values, the racially fluid will have an incentive to present themselves in the way most favorable under the circumstances.”
In the same forum, Angela Onwuachi-Willig, Kierscht Professor of Law at the University of Iowa and a recent speaker at Denver Law, writes about the social construction of race. “Like race, racial identity can be fluid,” she explains. “How one perceives her racial identity can shift with experience and time, and not simply for those who are multiracial. These shifts in racial identity can end in categories that our society, which insists on the rigidity of race, has not even yet defined.” But, she continues, “the social, political and economic meanings of race, or rather belonging to particular racial groups, have not been fluid.” They run so deeply that “[m]ore than 50 years ago, Congress enacted the most comprehensive antidiscrimination legislation in history, the Civil Rights Act of 1964. Half a century later in 2015, the same gaps in racial inequality remain or have grown deeper.”
See the discussion in its entirety here.
Chancellor Chopp reports on the “State of Inclusive Excellence at the University of Denver”
June 08, 2015
DU Chancellor Rebecca Chopp issued an update today on the university’s efforts during the past several years to achieve greater diversity and make DU a more inclusive environment. “Building a stronger culture of inclusive excellence at the University of Denver is a shared vision and a shared responsibility,” wrote Chancellor Chopp. “As we build upon the progress others have helped us to achieve, we must also recognize that there will always be more to do—and that we must continue to advocate for and create positive change.” Her update lists and links to reports and statements tracing steps taken and recommendations and commitments made in 2014 and 2015 and includes the announcements that Dr. Liliana Rodriguez has been appointed the new Vice Chancellor for Campus Life and Inclusive Excellence and that Dr. Frank Tuitt has been named Senior Advisor to the Chancellor and Provost on Diversity and Inclusion.
June 2015 Edition of IACA Newsletter
June 04, 2015
Legal Aid Jobs Await Law School Graduates
June 02, 2015
Please click the link below for an interesting article about legal aid jobs.