Albie Sachs, a former justice for the Constitutional Court of South Africa who has fought for human rights, spoke at UF Law on Tuesday about gay marriage. (Photo by Maggie Powers)

By Jenna Box (3JM)
Student Writer

A quiet hum of voices filled the Chesterfield Smith Ceremonial Classroom, HOL 180, at about noon on Tuesday. Albie Sachs sat on a table at the front of the room, wearing a gold-patterned shirt and a calm expression. His right sleeve hung empty beside his body—a symbol of the lifelong battle he’s fought for human rights.

The 78-year-old former justice of the Constitutional Court of South Africa spoke about gay marriage. It was also the opening day of the U.S. Supreme Court’s hearing of arguments about two cases involving same-sex marriage.

Even before he served on the Constitutional Court, Sachs was known as an advocate against racism, repression and apartheid. He was imprisoned, tortured and banned for his freedom fighting, but he wasn’t silenced.

In 1988, a car bomb placed by South African security agents blew up when he opened his door, causing him to lose his right arm and vision in one eye.

On Tuesday, Sachs shared stories from his experience on the Constitutional Court and his thoughts about the opinion he wrote in a case that legalized same-sex marriage in South Africa in 2005.

“Probably the strongest statement to appear in any judgment or opinion in recent years about the importance of religion in public life for millions and millions of people all around the world came from my pen in that judgment,” he said. “The very constitution that protects the rights of same-sex couples to express their love and intimacy and commitment in the same way heterosexual couples do protects the rights of faith communities to follow their faiths in the way that they want to do.”

Far too often, differences have been used as a weapon to separate, he continued. Cultural wars arise from people imposing their world views on others, instead of showing respect. What could be more important, he asked, than to allow people to be who they are?

“What do I think the U.S. Supreme Court will do?” he said. “I think they will give an opinion.”

The audience laughed.

“I imagine all the talents or otherwise of the nine justices are going to be challenged and tested now,” he said.

After the talk, Sachs signed copies of two of his books, which are still available for purchase in the UF Law Bookstore.

“I thought the talk was a great success. Albie related the issue of gay marriage to his own life experiences in a way that brought home the important dignity interests at stake, not only for gay and lesbian couples, but also for those who oppose gay marriage on religious grounds,” said UF Law Senior Legal Skills Professor Joseph Jackson, who introduced Sachs. “He’s had a truly remarkable life, full of courage and commitment in the face of great adversity, and it was inspiring to hear him speak.”

“Gay Marriage and the Promise of Equality” was co-sponsored by UF Law’s Center on Children and Families and UF’s Center for African Studies.

Harvard Law Professor Janet Halley discussed Oct. 18 the current approach to same-sex marriage during the seventh annual Weyrauch Distinguished Lecture in Family Law. (Photo by Haley Stracher)

By Matt Walker
Senior writer

A “train wreck” is how Harvard Law Professor Janet Halley describes the legal regime prevailing for same-sex couples.

Until same-sex marriage is recognized and protected on a federal level, gay couples will continue to face potential legal complications due to varying degrees of recognition of civil unions and gay marriage from state to state, Halley said at the seventh annual Weyrauch Distinguished Lecture in Family Law.

In her Oct. 18 lecture, “Traveling Marriage: Why the Campaign for Same-Sex Marriage Cases Gets Marriage Wrong,” Halley discussed how relationships can be damaged and numerous legal problems can arise from the “flickering” of gay marriages.

“What happens with same-sex marriages and civil unions that are valid where formed, and they move to a DOMA (Defense of Marriage Act) state, is that they do what I call a flicker,” Halley said. “They are valid in one location and they are invalid in another location and will not be given legal recognition there.”

“The possibility that you’re forming a same-sex marriage in Massachusetts or some other state where it’s valid to do so means you’re handing over to your spouse the power to move to a DOMA state and do serious legal damage in the relationship because you can induce non-recognition of the relationship,” Halley said.

While states should recognized marriages formed in other states, some states use the Defense of Marriage Act to get around this by declaring same-sex marriages morally repugnant, she said.

Halley said ultimately same-sex marriage will need to be federalized to prevent these types of situations, but she said she’s not putting her hopes on the Supreme Court at this time because it is a conservative court that’s becoming even more conservative.

The current approach to gay marriage is heavily influenced by the traditional view established in the 19^th century that marriage falls under status law, which reflects the will of the state, rather than contract law, which reflects the will of the parties, she said.

“My advocacy is that we should really look at marriage not as status, which is what you do if you’re going to constitutional court,” Halley said. “We should look at it as its effects. And we should be ready for a long, long haul of very painful flickering.”

Halley teaches courses in family law, comparative family law and sexuality, and legal theory. Her books include After Sex? On Writing Since Queer Theory, co-edited with Andrew Parker (Duke University Press 2011); Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press 2006); Left Legalism/Left Critique, co-edited with Wendy Brown (Duke University Press, 2002); Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy (Duke Univ. Press, 1999); and Seeking the Woman in Late Medieval and Renaissance Literature: Essays in Feminist Contextual Criticism, co-edited with Sheila Fisher (University of Tennessee Press, 1989). Her current projects include a handbook, What’s Not to Like about Sexual Harassment Law and a critique of the rules about sexual violence in war established by the ad hoc courts convened to adjudicate war crimes in Rwanda and the former Yugoslavia.

The Weyrauch Distinguished Lecture in Family Law was established in honor of Professor Walter O. Weyrauch, internationally known for his work in foreign and family law. Weyrauch joined the UF Law faculty in 1957 as associate professor. He became professor in 1960, was Clarence J. TeSelle Professor 1989-1994, and became Stephen C. O’Connell Chair in 1994 and distinguished professor in 1998. A reception will follow the lecture.

Harvard Law Professor Janet Halley will be on campus Thursday to discuss same-sex marriage.

The Weyrauch Distinguished Lecture in Family Law will feature Harvard Law School Professor Janet Halley on “Traveling Marriage: Why the Campaign for Same Sex Marriage Gets Marriage Wrong,” Thursday at noon in the Chesterfield Smith Ceremonial Classroom, HOL 180.

Hosted by the Center for Children and Families, this lecture was established in honor of Professor Walter O. Weyrauch, internationally known for his work in foreign and family law. Professor Weyrauch joined the UF Law faculty in 1957 as associate professor. He became professor in 1960, was Clarence J. TeSelle Professor 1989-94, and became Stephen C. O’Connell Chair in 1994 and distinguished professor in 1998. A reception will follow the lecture.

Halley is the Royall Professor of Law at Harvard Law School. She teaches courses in family law, comparative family law and sexuality, and legal theory. Before teaching at Harvard, she was professor of law at Stanford Law School (1991-2000) and assistant professor of English at Hamilton College (1980-85). She has a Ph.D. in English from UCLA (1980) and a J.D. from Yale Law School (1988).

Her books include After Sex? On Writing Since Queer Theory, co-edited with Andrew Parker (Duke University Press 2011); Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press 2006); Left Legalism/Left Critique, co-edited with Wendy Brown (Duke University Press, 2002); Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy (Duke Univ. Press, 1999); and Seeking the Woman in Late Medieval and Renaissance Literature: Essays in Feminist Contextual Criticism, co-edited with Sheila Fisher (University of Tennessee Press, 1989). Her current projects include a handbook, What’s Not to Like about Sexual Harassment Law; a paper comparing family law systems entitled “Travelling Marriage;” and a critique of the rules about sexual violence in war established by the ad hoc courts convened to adjudicate war crimes in Rwanda and the former Yugoslavia.

UF Law Professor Rachel Rebouché and Marquette University Adjunct Professor Richard Esenberg held a civil discourse regarding same-sex marriage Oct. 3. (Photo by Nicole Safker)

By Nicole Safker (JD 12)
Staff writer

As election season approaches, the debate over same-sex marriage remains a hot topic.

Supporters from both sides gathered in the Chesterfield Smith Memorial Classroom on Oct. 3 for “A Conversation on Same-Sex Marriage,” an event billed as a “civil discourse about same-sex marriage” focusing on “secular arguments for and against the legalization of same-sex marriage,” according to the event’s sponsors, the UF Federalist Society and the UF Law chapter of OUTLaw gay-straight alliance.

UF Law Professor Rachel Rebouché presented the arguments for the legalization of same-sex marriage, while Marquette University adjunct professor Richard Esenberg, who also serves as the longtime director of the Wisconsin Institute for Law and Liberty,  presented arguments against legalization.

The discourse was nuanced and academic, focusing on secular arguments that often take a backseat to arguments centered in religious morality and the meaning of the institution of marriage.

Professor Esenberg called for restraint in changing the institution of marriage, because there are certain “costs to recognizing same-sex marriage,” including the possible effects legalization may have on children. He also underscored the belief that children get certain benefits from being raised in a household with their biological mother and father and that children have an “innate desire” to be raised in such a household.

In addition, Esenberg challenged the idea that gender is not important to the institution of marriage. “The notion that gender does not matter when it comes to marriage and intimate relationships is unlikely to be true,” he said.

Rebouché summarized her understanding of Esenberg’s argument, saying she did not necessarily disagree that “law as commissioned to expand marriage to same-sex couples has cultural reverberations that change societal understanding of what marriage is and what it does.”

However, Rebouché said, that argument is based on certain “assertions that must be true for opponents’ arguments to stand,” including religious and gender-based stereotypes.

“What really seems to set apart same-sex marriage for its opponents is based on the differences of same-sex households and opposite-sex households,” Rebouche said.

Rebouché continued by describing the vision of marriage as “promoting a communitarian vision of public good,” and argued that including same-sex couples in that vision would not be counter to the societal benefits furthered by marriage.

“I am very aware of the communitarian argument for same-sex marriage,” Esenberg said in response.  He described concerns about allowing same-sex couples to marry based on the benefits of marriage to society, citing “unintended consequences” that may occur and again calling for restraint.

“We ought to proceed carefully because we don’t know what effect rapid changes in social institutions will have,” Esenberg said.

Esenberg cited the “no-fault divorce” movement as an example of such a change with unintended consequences. Those consequences included a higher number of divorces, lower incentives to keep families together and a disparate impact on poor people, he said.

Finally, Esenberg addressed the issue of stigmatization of same-sex relationships. He said that opponents of same-sex marriage “don’t intend to stigmatize anyone,” but that “men and women experience sexuality very differently,” and that these varied experiences of sexuality play a role in the stability of heterosexual married relationships.

This event was the second of its kind co-sponsored by OUTLaw and the Federalist Society. Last year, UF Law Professor Danaya Wright and Austin Nimocks, senior legal counsel for the Alliance Defense Fund, debated the Defense of Marriage Act, the federal law banning legal recognition of same-sex marriage.

Last year, as part of diversity month, University of Florida LGBT Affairs created a “Making it Better” video, which is a compilation of UF faculty, support staff, and students and can be viewed here.

Are there valid secular public policy arguments against the legalization of same-sex marriage? Is the failure to legalize same-sex marriage one example of our society’s discrimination against the LGBTQ community? Will the adoption of same-sex marriage weaken the government’s ability to facilitate and incentivize procreative relationships between heterosexual couples? The UF Federalist Society and OUTLaw present a civil discourse on same-sex marriage Wednesday at noon in the Chesterfield Smith Ceremonial Classroom, HOL 180, with Professor Richard Esenberg of Marquette University Law School and UF Law Professor Rachel Rebouché.

Come hear a discussion on secular arguments for and against the legalization of same-sex marriage. Free Publix subs and chicken tenders for attendees.

About the speakers:
Professor Richard Esenberg currently teaches at Marquette University Law School. For the past ten years, Professor Esenberg served as vice president and general counsel of Rite Hite Holding Corporation in Milwaukee. From 1981 to 1997, he was an associate and then partner at Foley & Lardner. Esenberg has overseen international acquisitions and business expansions throughout Europe, Latin America, and Canada. Esenberg holds a J.D., magna cum laude, from Harvard Law School, where he was an editor of the Harvard Law Review, and a B.A., summa cum laude, in political science from the University of Wisconsin-Milwaukee. He teaches Civil Procedure, Election Law, Wisconsin Supreme Court and Law and Theology.

Professor Rachel Rebouché is an assistant professor of law at the University of Florida Levin College of Law. She received her J.D. from Harvard Law School where she was the editor-in-chief for the Harvard Journal of Law and Gender. She received her LL.M. from Queen’s University, Belfast, and her B.A. from Trinity University. Rebouché has worked as the associate director of Adolescent Health Programs, and was a law clerk to Justice Kate O’Regan of the Constitutional Court of South Africa. She is currently associate director at the UF Law Center for Children & Families, an advisor for the Family Law Society, and an affiliated faculty for the Center for Women’s Studies & Gender Research. In 2012, Rebouché received 1 of only 10 campuswide UF Excellence Awards for assistant professors. She joined the UF law faculty in 2010.

Center for the Study of Race and Race Relations hosts open house

The CSRRR will host an open house Wednesday from 12:30 – 1:30 p.m. in the CSRRR meeting room, HOL 370D.

Glasser Barbecue slated for Oct. 9

The Levin College of Law is holding a free barbecue for all students, faculty and staff Tuesday, Oct. 9, from 11:30 a.m. to 1 p.m. in the Marcia Whitney Schott Courtyard. The food is from Hill’s Bar-B-Que in Gainesville and the event is sponsored by the Gene K. and Elaine Glasser Endowment. The Glassers, who are both UF alumni, have sponsored the event for the past several years. They hope the annual event will foster a greater sense of community among people at the law school. “The law school education I received at the University of Florida has greatly influenced my professional and personal life, creating lasting memories with my friends,” said Gene Glasser, a Fort Lauderdale attorney who received his juris doctor degree from UF Law in 1972. The event is a great chance for incoming students to get to know one another and feel like a part of the law school community. During the event, the Office of Communications will post photos on the UF Law Facebook page and we invite attendees to submit their comments on the photos to thank the Glassers for their contributions to the law school.

Join UF Oct. 12 to honor black leadership

• Leadership and Law: Diverse Perspectives on the Role of Race and Participation in Professional Legal Organizations (CLE Credit Anticipated), 12-2:30 p.m., Friday, Oct. 12, UF Law Martin H. Levin Advocacy Center. Welcome reception and luncheon noon-1 p.m.; panel presentation 1-2:30 p.m. with leaders from national, state, and local bar associations discussing how race has influenced the past, present, and future of their respective organizations in order to foster a dialogue on avenues for leadership and joint initiatives that transcend racial and other divides. Funded by The Florida Bar in cooperation with the 8th Judicial Circuit Bar Association, the Josiah T. Walls Bar Association and Center for the Study of Race and Race Relations. RSVP here.
• A celebration honoring the 50th Anniversary of the Graduation of the University of Florida and Levin College of Law’s First Black alumnus: W. George Allen, featuring presentations by W. George Allen and other honored guests, 3 to 4:30 p.m., Friday, Oct. 12, 2012, Chesterfield Smith Ceremonial Classroom (180 HOL). Co-sponsored by the University of Florida Alumni Association and Association of Black Alumni, Levin College of Law & Center for the Study of Race and Race Relations. Read more.

Harvard law professor discusses same-sex marriage at Weyrauch Lecture Oct. 18

The Weyrauch Distinguished Lecture in Family Law will feature Harvard Law School Professor Janet Halley on “Traveling Marriage: Why the Campaign for Same Sex Marriage Gets Marriage Wrong,” Thursday, Oct. 18, at noon in the Chesterfield Smith Ceremonial Classroom, HOL 180. Hosted by the Center for Children and Families, this lecture was established in honor of Professor Walter O. Weyrauch, internationally known for his work in foreign and family law. Professor Weyrauch joined the UF Law faculty in 1957 as associate professor. He became professor in 1960, was Clarence J. TeSelle Professor 1989-94, and became Stephen C. O’Connell Chair in 1994 and distinguished professor in 1998. A reception will follow the lecture.

Halley is the Royall Professor of Law at Harvard Law School. She teaches courses in family law, comparative family law and sexuality, and legal theory. Before teaching at Harvard, she was professor of law at Stanford Law School (1991-2000) and assistant professor of English at Hamilton College (1980-85). She has a Ph.D. in English from UCLA (1980) and a J.D. from Yale Law School (1988).

Her books include After Sex? On Writing Since Queer Theory, co-edited with Andrew Parker (Duke University Press 2011); Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press 2006); Left Legalism/Left Critique, co-edited with Wendy Brown (Duke University Press, 2002); Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy (Duke Univ. Press, 1999); and Seeking the Woman in Late Medieval and Renaissance Literature: Essays in Feminist Contextual Criticism, co-edited with Sheila Fisher (University of Tennessee Press, 1989). Her current projects include a handbook, What’s Not to Like about Sexual Harassment Law; a paper comparing family law systems entitled “Travelling Marriage;” and a critique of the rules about sexual violence in war established by the ad hoc courts convened to adjudicate war crimes in Rwanda and the former Yugoslavia.

Criminal Justice Center, Criminal Law Association hosts criminal video-advocacy competition

The Criminal Justice Center and the Criminal Law Association is pleased to host its inaugural criminal video-advocacy competition this fall. The competition solicits submissions by student teams of an original, creative and educational video portrayal of Fourth Amendment issues geared toward a college-student audience

• Cash prizes will be awarded for first through third places.
• All law students enrolled at the Levin College of Law are eligible to enter.
• Deadline for submissions is Oct. 22. Winners will be announced on Nov. 10.
• The submissions will be evaluated by members of a judging panel; criteria include clarity of thought, well-structured argumentation, creative use of videography and liveliness of expression.

Decisions of the judging panel will be final. Complete rules of the competition are available at the CJC website (www.law.ufl.edu/academics/centers/cjc) or can be obtained from Eva Achero in Room 100, Bruton-Geer Hall.

Applications open for 2013 Evan Yegelwel Summer Fellowship

The Evan Yegelwel Summer Fellowship award permits one UF Law student to participate in a paid Summer Fellowship Program at the Anti-Defamation League (ADL), Florida Regional Office in Boca Raton. The Yegelwel Summer Fellowship award is $4,000. The ADL is a premier national civil rights organization that fights anti-Semitism and all forms of bigotry in the U.S. and abroad, combats international terrorism, probes the roots of hatred, comes to the aid of victims of bigotry, develops educational programs, and serves as a public resource for government, media, law enforcement, all toward the goal of countering and reducing hatred. A generous gift from Evan Yegelwel (JD 80) has made this fellowship possible. Yegelwel is a partner in the Jacksonville law firm of Terrell Hogan Ellis Yegelwel, P.A. Click here for more fellowship and application information.

“At least in my view, the debate in this country on the left, loosely speaking, over the issue of same-sex marriage is over,” said Carpenter, Earl R. Larson Professor of Civil Rights and Civil Liberties Law University of Minnesota Law School. “It has been resolved in favor of full legal recognition of same-sex couples and there is some remaining debate over what to call it, what form it should take and so forth. The basic principle has been embraced. The interesting discussion on this issue in the country right now is happening in the middle and especially on the right.”

Carpenter described Burkean conservatism in a nutshell as respecting tradition and history, distrusting abstract theorizing about the world and opposing convulsive change in favor of slow, well-sustained progress. Carpenter said it would be easy to argue against same-sex marriage from a Burkean perspective.

First of all, it would be a change and a Burkean conservative would be suspicious of that alone. Second, marriage has never included same-sex unions in its definition. Third, proponents are using abstract reasons – tolerance, inclusion and equality – to argue for same-sex marriages that do not address the real issue. Finally, a Burkean conservative would argue that these changes are being thrust upon us by impatient activists and courts that have no respect for tradition.

To refute these arguments, Carpenter said many of the laws that apply to homosexuals were made without knowing much about them. Many myths were cast upon homosexuals including that they were dangerous, predatory toward children, psychopathic, maladjusted and sick, Carpenter said.

“Much public policy in this country toward homosexuals was developed in a time when we didn’t know much about gays and lesbians as a group – how they lived, what they were like, how many there were and so on,” Carpenter said. “So in the absence of this information, we filled in with some myths and stereotypes about homosexuals, some things we believed to be true.”

How America views homosexuals is greatly changing, as evidenced by decriminalization of sodomy laws and demedicalization of being homosexual, Carpenter said. Carpenter conservatively estimated about 9 million homosexuals and 750,000 same-sex couples living together.

“When you think about it, it’s a lot of people who will never have the prospect of marriage in their lives, who are cut off from what a traditionalist would regard as the most important social institution we have for encouraging people to live in stable healthy family and community lives, the most moral life possible, according to a traditionalist, for a sexually active person,” Carpenter said. “It denies to them, to this group of people, the most powerful social and legal institution we have for encouraging the kinds of values that traditionalists say are the most important values in life.”

Carpenter said there would be three types of individual benefits that homosexuals would get from being allowed to marry: legal benefits, care giving benefits and social benefits. Carpenter thinks the legal benefits might be the least important of the three rights. He said social benefits might be the most important reason for letting homosexuals marry.

“It is the way that one person signals to another person in a relationship the depth of the commitment they have to that relationship and moreover it’s the way that that couple signals the importance and the depth and the enduring nature of their commitment to those in their communities – to their friends, to their co-workers, to their families, to everyone else they know,” he said.

Further, Carpenter said every study done has said that children do just as well with homosexual parents. Although many would argue that a married man and woman is the optimal environment for children, Carpenter said they’re missing the point.

“The reason we would say that is that no one seriously involved in this debate over whether we’re going to recognize same-sex marriage or not advocates taking children out of the homes of their gay and lesbian parents, more than a million now,” Carpenter said. “So here’s the choice: it’s not, ‘Are gays the best for raising children or not?’ The choice is, ‘Will the children who are being raised in increasing numbers by gay and lesbian parents – will they be raised in homes where their families enjoy the protections and benefits of marriage or will they not be?’ That’s the real question.”

In addition to individual benefits, Carpenter said the community would reap benefits from allowing same-sex marriage too. Carpenter does not buy that marriage is for procreation only since we allow those who cannot reproduce or do not want children to marry. Carpenter gave four ways that same-sex marriage would benefit the community.

First of all, it would better the lot for gays and lesbians. Second, it would help limit government since married people place fewer demands on the government. Third, it would benefit gay life and culture and help discourage promiscuity, drug use and alcoholism. Finally, there are so many problems with marriage in America right now – divorce, children born out of wedlock, little cultural respect – that it might actually help the institution.

“Instead of being a threat to marriage, imagine that gay marriage might actually be a small part of its revival, of its reinstitutionalization,” Carpenter said. “Think about it this way: it is harder to convince people that marriage really is the gold standard for relationships, that marriage and raising children go together, if a large subclass of the population is living life entirely outside of this institution.”