NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW VOL. 1, ISSUE 1

Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)

Coming Out and Stepping Up: Queer Legal Theory and Connectivity

Francisco Valdes1

[Copyright, 1993: Francisco Valdes]

                            Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .3
I.   QUEER LEGAL THEORY. . . . . . . . . . . . . . . . . . . . .5
     A.   Sexual Minorityhood and Queer Consciousness. . . . . .6
          1.   Pre-Stonewall . . . . . . . . . . . . . . . . . .6
          2.   Post-Stonewall. . . . . . . . . . . . . . . . . .9
     B.   Naming and Situating the Missing Voice . . . . . . . 12
          1.   Responsiveness and Accountability . . . . . . . 14
          2.   Joining Hands With Feminism 
               and Critical Race Theory. . . . . . . . . . . . 15
               a.   Queers, Feminists & the Sex/Gender Self. . 15
               b.   Critical Race Theory, Multiplicity
                      Intersectionality. . . . . . . . . . . . 17
     C.   Social Constructionism & Queer Legal Theory. . . . . 21
     D.   Lesbians, Gay Androsexism & Queer Legal Theory . . . 23

II.  CONNECTIVITY & COALITION. . . . . . . . . . . . . . . . . 25
     A.   Connectivity Defined . . . . . . . . . . . . . . . . 26
     B.   Psycho-Social Isolation & Connectivity . . . . . . . 28
          1.   Connectivity & the Past . . . . . . . . . . . . 28
          2.   Connectivity & the Present. . . . . . . . . . . 33
          3.   Connectivity & the Future . . . . . . . . . . . 35
     C.   A Note on Coalition and Connectivity . . . . . . . . 39

III. PERSONAL EPILOGUE . . . . . . . . . . . . . . . . . . . . 40

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     A.   Left-handed, Bald-headed Golfers and the Law . . . . 40
     B.   The Consciousness Curve. . . . . . . . . . . . . . . 41
     C.   My Selves, My Kinds. . . . . . . . . . . . . . . . . 41

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Introduction

It takes about a quarter century for us humans to grow into maturity as individuals, but this span of time amounts to less than a speck in the collective story of humanity. Yet, as a group, sexual minorities2 in this country have attained a maturity during the past twenty five years that is truly remarkable. In fact, the twenty five years that have elapsed since the Stonewall Riots have seen the birth and growth of an entire people at a rate that delights some, frightens others, but astonishes all.

During this time, sexual minorities have journeyed from total invisibility, shame-filled isolation, and unchallenged subordination to an unapologetic sense of self-definition and group identity. This journey, though relatively brief in time, has given rise to momentous developments, including the establishment of "sexual minorityhood" and the coalescence of "Queer"3 consciousness. In short, during this time we have progressed from the spontaneous combustion that produced the 1969 Stonewall Riots in New York City to the nationwide orchestration of time, energy, and resources that culminated in last year's March on Washington.

This Journal, whose inauguration coincides with the 25th anniversary of the Stonewall Riots, marks yet another step in this progression because this Journal bears witness to a growing Lesbian, Gay and Bisexual presence and sensibility within legal culture, a sensibility of openness and pride that simply did not exist a few years ago. As elaborated below, this sensibility is more generally rooted in, and benefits from, the evolution of Queer social identity during this past quarter century because these broad cultural developments helped to create a general climate of relative receptivity for the emergence of sexual minority scholars within legal culture. In great measure, Queer legal consciousness is the outgrowth of social Queer consciousness.

However, these developments also pose a challenge to legal culture, and more specifically to the nascent sexual minority communities within legal culture. By setting the stage for the emergence of sexual minority scholars, these developments poise legal culture for the emergence of a long-denied voice in critical legal scholarship: Queer Legal Theory. The creation of Queer legal theory is the challenge that Queerness poses to legal culture.

This essay traces the evolution of social consciousness that makes this new voice possible and urgent, delineates a basic statement of mission for Queer critiques of law that is responsive to this newfound Queer identity, and urges the development of a common front with Feminist and Critical Race scholarship in light of our common oppressions. Part I opens this essay with a call for the advent and cultivation of "Queer

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legal theory" as a cross-disciplinary and self-conscious exploration of way in which legal doctrines, customs, and practices impact on sexual minorities as sexual minorities. Part II addresses an ideal relationship between Queer legal theory and Critical Race theory and Feminism, introducing the concept of "connectivity" against the backdrop of multiplicity and intersectionality developed by Critical Race and Feminist scholars. Part III is a personal epilogue that considers some objections to Queer legal theory or to connectivity, and relies explicitly on my individual history and subjective sense of self/ves and community/ies to illustrate and underscore the theoretical points raised previously.

I.

QUEER LEGAL THEORY The initiation of Queer legal theory, as envisioned here, is made possible and necessary by the formation of a Queer community and consciousness that literally did not exist before the Stonewall Riots. Queer legal theory is made possible by this newfound sensibility because this new community has attained "sexual minorityhood"-- Gays, Lesbians, Bisexuals, and the trans- gendered now form bona fide and functional minorities akin to women and racial or ethnic minorities. The initiation of Queer legal theory is made necessary as well by the sense of resolute opposition to continued subordination that in recent years has arisen among sexual minorities and that increasingly seems to define sexual minority consciousness. This section therefore traces the progression of sexual minorities toward sexual minorityhood and Queer consciousness.

A. Sexual Minorityhood & Queer Consciousness

The twenty fifth anniversary of the Stonewall Riots, being commemorated this year, fairly may be viewed as marking a milestone in the development and maturation of sexual minorities as such because those riots mark the "big bang" in the formation of a cultural context for sexual minorityhood, a bang that was big enough to set off continuing repercussions.4 However, the formation of culturally cohesive sexual minorities in this country during the past several decades comprises four relatively distinct eras. Two of these mark the years preceding Stonewall and the other two mark the years since. During this time, Lesbians and Gay men left behind the terror and atomization of the past and began to coalesce culturally. Combining the production and development of a new consciousness with the creation and expansion of community structures, this coalescing has given rise to sexual minorityhood: today, sexual minorities have achieved a recognizable sense of group consciousness, have carved out public spaces for the needs and activities of vibrant and flourishing communities, and have secured privates spaces within them for our families. These years thus span the time during which sexual minorities became sexual minorities.5

1. Pre-Stonewall

The pre-Stonewall history of sexual minorityhood in this country can be arranged into two basic eras. The first is the era of atomization, and covers the years before World War II, during which sexual minorities did not yet exist as such. The

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second is the homophile era of the post-war years, during which a sense of group consciousness and of physical community began to form along the major cities of the East and West coast. These decades changed the world, and in doing so they set the stage for the formation of today's sexual minorities.

Before World War II, Lesbians, Gays, and Bisexuals by and large were scattered across the towns and plains of the country, isolated from each other and viewed by themselves and others as individual "perverts" without any connection to any of bona fide community.6 The recent spate of (auto)biographical accounts from that era show how this social and intellectual vacuum kept most Lesbians, Gays, and Bisexuals atomized, hidden, and cowered.7 Thus, rather than comprising a group fortified against the antagonism of the sexual majority by a sense of itself, inchoate sexual minorities were viewed instead as discreet sex/gender aberrations-- clinical cases and reviled statistics.

However, World War II ushered in a new era because combat conditions changed both the consciousness of a budding generation as well as the broader socio-economic landscape.8 Joined together for wartime efforts, men and women who intuitively or secretly identified as "homosexual" found each other in the ranks, and during those years forged both a sense of self as well as tentative links with likeminded others, and these two gains survived the war.9 In the home front, the nation's call for women to come out of the home and to go work in the factories as replacements for the men sent to war also brought together the previously isolated homosexuals among them.10 In this way, the nation's military needs during World War II served as the primary catalyst for the congregation of homosexuals in relatively concentrated places and numbers.

Upon demobilization, these youths did not return to the strictures of the towns, plains, and homes that previously contained them. Instead, they hung on to their newfound freedoms. Many former service members thus lingered and settled in the great ports of disembarkation used by the military on each coast while many wartime factory workers similarly lingered and settled into job opportunities that provided economic freedom.11 Thus, New York,12 Los Angeles, and San Francisco13 became the hometowns of the nation's incipient sexual minorities.14

In the west, Los Angeles and San Francisco witnessed some of the earliest organized resistance to what we now call homophobia after World War II. This resistance led to the formation of the Mattachine Society and the Daughters of Bilitis in conjunction with similar stirrings on the other end of country in New York City.15 Using the "homophile" self-denomination, these post- War efforts were led initially by politically radical activists but eventually settled into a calculated assimilationism that marks these years as a relatively distinct era in the history of sexual minorityhood.16 These early years were critical because they introduced individuals to each other; building networks, these pioneers broke the silence of the past and became the progenitors of our future communities.

This incremental creation of a group identity on both coasts eventually coincided with the general tumult of the 1960s, which gave rise to a social fecundity that helped to ignite a more

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militant "Gay" consciousness.17 Perhaps most significantly, in 1969 events led up to the "Stonewall" riots when the patrons of the Stonewall Inn, a bar in Greenwich Village-- mainly Puerto Rican drag queens-- unexpectedly rebelled at the continuing harassment and extortion of homosexual bars and patrons.18 For several nights, fearsome rioting ensued. In a flash, the news of this unprecedented defiance electrified the likeminded across the country, and introduced a new wave of youthful radicalism that marks the next era in the modern history of sexual minorityhood.

2. Post-Stonewall

The post-Stonewall years also can be arranged into two basic eras that mark relatively distinct stages in the formation of sexual minorityhood. The first of these, during the 1970s, was the era of activism and hedonism, which began in the immediate wake of the Stonewall Riots. The second of these, the era of pandemic and resurgence, began with the onset of HIV and continues today with the ascendancy of a strident but sophisticated Queer consciousness forged directly from the alienation, radicalization, and mobilization that has spread through the survivors, their families of affinity, their neighbors, and their friends. These decades therefore lead up to today's Queer consciousness sexual minorityhood.19

The months and years immediately following the Stonewall Riots witnessed the rise of bacchanalia and revelry in the Gay bathhouses20 and Gay discotheques that sprung up in cities across the country,21 as well as the rise of the Gay Liberation Front, whose permissiveness of lifestyle and politics of confrontation set it apart from the assimilationist moderations of the homophile movement.22 During this time, the 1970s, the Gay male community predominated23 and, though some of these Gays cried, "Out of the closets and into the streets," many others saw no urgency in that cry.24 This era thus may be seen as one of acute flux between pleasure without politics and between the politics of pleasure.25

This third era in the modern history of sexual minorityhood shut down as the onset of AIDS began to terrorize and devastate formative Gay communities. But terror and devastation soon turned to bitterness and fury, and this profound change in the attitudinal zeitgeist made way for the fourth and current era. Beginning in the early 1980s, a new era-- the current one-- characterized by a new militancy was launched by a new generation of activists that included Lesbians with increasing prominence.26 Epitomized by ACT-UP and Queer Nation, this new era thus far has produced a potent mix of pride, politics and pleasure that has taken sexual minority consciousness beyond the limits of the Gay years. This new activism is acutely aware of "sexual orientation" as a highly politicized construct and is unapologetic in its indulgence of (homo)sexuality as pleasure politics, or as political defiance to sexual and cultural subordination.27 This palpable, exponential emergence of Queer consciousness perhaps is the most starting result of the post- Stonewall years in the United States, a result that has rippled across the nation and that now has its parallels throughout the world as well.28

To be sure, sexual minorityhood is recent, but nonetheless authentic and secured. Indeed, the 1990s generate daily examples

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that show how sexual minorities in fact function as a "minority" in every sense of the word: sexual minority communities include identifiable neighborhoods with community-identified businesses, community-oriented services and organizations, and community interests and concerns that are viewed and addressed as such.29 These communities also have produced literature,30 art,31 and entertainment.32 More significantly, these communities have produced political leadership and leaders like Harvey Milk, Gerry Studds, Roberta Achtenberg; these communities, in other words, have produced a culture, a tribal sensibility that is discernible even if not homogeneous.33 Thus, as a practical matter, a minority culture defined by minority sexual orientation(s) has come into existence and this sub-culture, delineated both by consciousness and geography, is active in, if not central to, civic and economic life in some of the nation's most prominent cities.34

These changes could not help but to affect legal culture because the law is a prime tool in the repression of sexual minority life.35 The gains of sexual minorities since the Stonewall Riots thus ensured that the repressive uses of law would be questioned and challenged both from without and within legal culture. Consequently, the law's historical role in the subordination of sexual minorities increasingly is being contested. The post-Stonewall advances thereby pose a basic challenge to legal culture: creation of a scholarship that is cognizant of and responsive to the new landscape.

B. Naming and Situating the Missing Voice

The social and political developments of the past quarter century recounted above thus situate us at the threshold not only of finding but also of naming this missing voice because naming always has been uncertain and problematic for sexual minorities. During the past century our most prominent sobriquets have included homosexual, queer, dyke, Gay, Lesbian, Queer. Each of these terms comes with its past, its lineage, its baggage. Thus, naming the emergent legal scholarship on sexual minorities unavoidably forces a choice that signals self-definition.

As the preceding listing suggests, Queer is the latest of terms for sexual minority identity. It represents the most recent culmination of self-made Lesbian, Gay, Bisexual, trans- gendered communities and identities. Thus, though all the terms speak to the past, only Queer also speaks as part of a new vocabulary that invokes a self-made vision of a better future. In this way, the history of sexual minorities effectively crystallizes the choice that we face over self-denomination: we either embrace or reject in legal culture the new, liberational significance of "Queer" in the cultural life and discourse of sexual minorities as a whole.

I, for one, opt to cast my lot in favor of the Queer self- denomination. Not only is it self-made and forward-looking, this term also increasingly connotes the advances secured by sexual minorities socially and culturally in recent years; even though it still can evoke the terrors of a not too distant past,36 Queer increasingly signifies self-empowerment. Queer signifies a sense of egalitarian inclusiveness that encompasses all sexual minorities-- Lesbian, Gay, Bisexual, and the transgendered-- and that therefore invites wide-ranging critiques of sex/gender

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issues. Queer legal theory thereby appropriately denotes a sense of mission and scope that comports with the character of the challenges that face sexual minorities. Thus, Queer signifies an activist sense of self that is useful and beneficial in the tasks that face sexual minority legal scholars.

As envisioned here, Queer legal theory faces three basic tasks. The first task is to create a body of legal scholarship that is responsive to Queer life and identity. The second task to make the law accountable for its actual impact on the lives and fortunes of sexual minorities. The final task is to join with Feminism and Critical Race theory in the quest for liberation from subordination under law.

1. Responsiveness and Accountability

The first two tasks-- responsiveness and accountability-- go hand in hand. Fortunately, the attainment of sexual minorityhood and the coherence of Queer consciousness in society at large has occasioned an explosion of research among the social sciences that can fuel Queer legal theory from the outset.37 The use of knowledge charted by the law's sister disciplines can help Queer legal theory make itself more responsive to its constituency by facilitating the law's tracking of pioneering insights. In this way, Queer legal theory can help to illuminate the law's ignorance or to check the law's malice, and thus help to make the law both more responsive and accountable to sexual minorities.

The continuing focus of Queer legal theory, as envisioned here, therefore must be to incorporate explicitly and determinedly the experiences of sexual minorities as sexual minorities into the law's fabric at every level and in every relevant context. Only in this way may Queer legal theory inform and reform a legal culture that is replete with neglect or mistreatment. However, Queer legal theory additionally must make itself responsive and accountable as well; the scholarship must begin and stay grounded to lived experience. If this scholarship is to speak for us with integrity, Queer legal theory must represent the diversities and realities of sexual minority lives in all that it does.

2. Joining Hands With Feminism and Critical Race Theory

Though they constitute two principal tasks, responsiveness and accountability are not, and cannot be, the entire work of Queer legal theorists. Thus, in addition to responsiveness and accountability, Queer legal theory should and must consciously situate itself among the liberationist schools of legal theory that have sought in recent years to pry the law from its narrow traditionalisms. Both Feminism and Critical Race theory provide natural role models and allies. Ideally, the advent of Queer legal theory thus should signal a gathering of critical insights and perspectives based on two sources of commonality: a common interest in social and legal equality and a historic and current situational kinship. The common interest in social and legal equality is addressed in the two sections that follow below and the situational kinship based on Psycho-Social Isolation is considered afterwards.

a. Queers, Feminists & the Sex/Gender Self

The additional task facing Queer legal theory, as -------------------------------END PAGE 7---------------------------------

envisioned here, is to join with Feminist (and Critical Race) theory in the quest for equality. Perhaps the joinder with Feminism seems more compelling at first blush because both women and sexual minorities may be thought to have a special interest in dismantling the hetero-patriarchal regulation of human sexualities. In this sense, the joinder of Queer and Feminist interests may be thought as being reflected in the Feminist battle cries, "Your body is a battleground" and "The personal is the political." Indeed, our bodies and personalities are the battleground on which the sex/gender politics over control of the self are waged. Indeed, viewed in a broader social-historical context, the Feminist and Queer claims for control of our sex/gender selves represents another increment in the development of the "self" in Western legal culture.38

Hence, it is no coincidence that contemporary Feminist and Queer agendas resemble each other: both seek an end to the ideological occupation of our jobs, homes and hearts-- our selves. Likewise, it is no coincidence that Feminist and Queer progress is opposed by common adversaries: traditionalist forces that oppose sex/gender equality and that argue for a "return" to "traditional values" (by which they mean a return to heightened societal control over bodies, personalities, desires, and aspirations) are the main adversaries both of Feminists and of Queers. In the courtrooms, legislatures, and streets of the land, women and sexual minorities spook the same forces because we pursue the same sex/gender goals; in both instances the pursuit of equality is clashing with the traditions of hetero- patriarchy.39

Feminist and Queer goals thus invite critical collaborations toward the accomplishment of sex/gender equality. However, collaboration depends on mutuality. And, therefore, Feminism must reciprocate. To do so, Feminism must overcome its history of neglect regarding sexual orientation issues within its critiques of sex and gender.40 In other words, like Queer legal theory, Feminist legal theory must learn to recognize and to address the commonalities of our sex/gender oppressions and of our social and legal interests in modern culture.41

This joining, moreover, extends beyond the direct scope of sex/gender oppressions that unify the interests of women and of sexual minorities under hetero-patriarchy. This joining properly extends to the remediation of inequality more generally because the three forms of oppression that confront us respectively-- heterosexism, androsexism, and racism-- are inter-linked.42 The joining urged here therefore extends to Critical Race theory as well.

b. Critical Race Theory, Multiplicity & Intersectionality

Though it focuses on issues especially relevant to race and ethnicity, Critical Race theory, like Feminism and Queer legal theory, is devoted to the eradication of subordination under the law. Thus, it bears emphasis that solidarity between and among liberationist critical legal theories need not, nor should be, limited to sex/gender issues; though humans inhabit categories built on these problematized traits, humans also inhabit categories built on class, race, color or ethnicity, as well as other problematized traits. These traits all count in

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the calculus of privilege and discrimination because society and its legal system fawn or bite on these bases.

The advent of a Queer/Feminist collaboration therefore should signal a new, sustained alertness to this "layering"-- the stacking of bigotries in layers that reflect the intersections of target problematized traits like race, religion, ethnicity, class, sex/gender, sexual orientation, and others. The path toward this sustained alertness already has been pioneered by the recent works of Feminist Critical Race legal scholars who have illuminated notions of multiplicity and intersectionality. Multiplicity recognizes that human identity "is multiplicitous, not unitary" and that, therefore, "differences are always relational rather than inherent."43 Intersectionality in turn recognizes this "multi-dimensionality" to show that subordination does not operate on a "single-axis framework" and to emphasize that critical legal theories therefore must recognize and confront the "complexities of compoundedness" in the fight against social and legal inequalities.44 These voices, bridging the gap between race and sex and between Feminism and Critical Race theory thus have pointed the way to a further joining that includes sexual orientation issues and Queer critiques in a common critical front.

Consider for a moment the Lesbian of color. Under a heterosexist, androsexist, racist socio-legal regime, her multiplicity adds up to a highly problematized identity based on sexual orientation, sex, and race. Because she is, all at once, a prime target for racial, androsexist, and heterosexist bigotries that rage throughout American society, she embodies the intersection of traits and bigotries that overlap the apparent domains of Queer legal theory, of Feminism, and of Critical Race theory. The Lesbian of color thus personifies the overlapping constituencies and interests of Queer legal theory, Feminism, and Critical Race theory. None of these critical legal theories could hope ever to represent her, or to address the interlocking isms that shape her (and our) subordination(s), if they limit themselves to a single-axis or even a dual-axis critical framework. Clearly, then, a Queer/Feminist collaboration must make the layered impacts of race, color, class, and other problematized traits organic to its critiques.

Beyond that, however, Critical Race theory likewise must join Queer/Feminist scholarship to illuminate the historic and contemporary intersectionality of race, sex, and sexual orientation in social and legal arenas. To do so, Critical Race theory, like Feminism, also must reciprocate by ending the neglect or omission of sexual orientation from its discussion of racial and ethnic legal issues. This type of effort already is underway beyond the law, as Gay and Lesbian people of color have begun to expose the racism (and androsexism) of sexual minorities as well as the homophobia of racial minorities. For instance, one Latina Lesbian recounted recently how, as a young activist in New ork City during 1979-80, she "was shocked into realizing that the lesbian and gay community is just about as sexist, racist and homophobic as the straight community."45 At the same time, Gay males of color also have begun to explore our internalization of this homophobia of color.46 As these two examples illustrate, people of color in sexual minority communities-- or should we be called sexual minorities in

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communities of color?-- are beginning to build a discourse and a consciousness that over time can help to calm the personal and group divisions engendered by the respective prejudices of our brothers and sisters.47

Though barely discernible, this type of effort is underway within legal culture as well. For instance, articles with a race-identified perspective slowly but surely are beginning to note sexual orientation issues.48 Perhaps reflecting this increasing awareness, the 1994 Critical Race Theory Workshop devoted one plenary session (of three) to the intersection of race and sexual orientation.49 Though the examples from legal culture are relatively few, their recent vintage and growing prominence indicates an expanding recognition of intersectionality and multiplicity that in time may yield a sense of commonality between women, sexual minorities, and racial minorities.

If so, these examples may one day stand as a beginning point for mutual collaborations that will deepen and broaden the continuum of experience and insight from which all of us may draw liberating legal principles. If so, these collaborations may allow us to put together the building blocks of a broad-based theory of subordination and liberation.50 At the very least, a mutual cultivation of common knowledge and experience can delineate the contours of our cultural consanguinity. Thus, Queer/Feminist/Critical Race legal critiques must adopt and fulfill an exacting standard of inclusiveness against which liberational legal scholarship always must measure itself.

Thus, while striving to air marginalized voices, Queer legal theory, like Feminism and Critical Race theory, must resist homogenizing the experience of all sexual minorities into an essentialized singleness. The insights afforded by "multiple consciousness" permit the acknowledgment that no gain is achieved by obscuring difference.51 Law operates on multiple levels, and touches us in varying ways depending on where we're standing in relationship to it at any given moment. So, while forging a common cause with Feminism and Critical Race theory to face common challenges and common legacies, Queer legal theory must also define and address difference and diversity.

C. Social Constructionism & Queer Legal Theory

The time is auspicious for the initiation of Queer Legal Theory for another reason. During the past decade or so, the law's sister disciplines have been developing a critical theory that today is a powerful tool available for importation into and application within legal culture. This critical theory, known as social constructionism, is a powerful critical tool, both outside of and within legal culture, because it's basic point advances a fundamental insight: that the human condition is a social construction, and not a "natural" or necessary condition.52

Generally, social constructionism challenges the notion of an "essential" or inherent reality, and thereby it questions the validity of the status quo as a set of conditions that can be justified as such. Instead, social constructionism focuses on the way in which conditions or circumstances thought to be "just so" are in fact arranged by socially dominant forces. By reminding us at all times that the status quo is a humanly constructed reality, social constructionism reminds us that the

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status quo cannot make claim to inherent value or legitimacy.

This reminder is critical to the emancipation of sexual minorities, women, and people of color because it rejects the premise for existing cultural hierarchies. Those hierarchies, as we saw above, are premised on notions of inherent inferiority that dominant forces have imputed to traditionally disfavored groups.53 Thus, social constructionism invites sexual minorities, women, and people of color critically to re-examine any deference accorded to the status quo based on its ostensible representation of a natural state of affairs, and to imagine alternatives that perhaps might have been thought beyond the pale. Queer legal theory therefore must embrace and deploy this knowledge to help mount its challenge of the hetero-patriarchal status quo.

D. Lesbians, Gay Androsexism & Queer Legal Theory

Finally, Queer legal theory must confront a danger that could undermine its integrity, a danger that already has been identified as a reason to eschew Queer legal theory in favor of more specific versions of this enterprise.54 This danger is that Gay male androsexism will marginalize Lesbian voices, experience, and interests in the same way that androsexism more generally has subordinated the female to the male. This danger thus anticipates that the inclusiveness and expansiveness of Queer legal theory will operate to overwhelm the participation and influence in this enterprise of at least one sub-set of persons within the broader category of sexual minorities.

Sex/gender history and experience shows that these dangers are real and that such wariness is well-founded. But these concerns should not foreclose a Lesbian and Gay male Queer collaboration because that approach would narrow unduly the base of experience from which Queer insights would be drawn and thus would preclude possibilities for joint empowerment that are too valuable to forego. Queer legal theory is a must precisely because it can help to bridge the reality and the perception of difference among and between various sexual minority sub-sets. The inclusiveness and expansiveness of Queer legal theory, as imagined here, goes beyond the specificity of critiques anchored to one or another sexual minority sub-set, a specificity that does not lend itself well to connective projects. Thus, though the inward or singular focus of such critiques may project a particular viewpoint with special force or insight, they are less likely than inclusive Queer critiques to help cultivate connectivity as a strategy toward sex/gender equality.

Moreover, the narrowness of focus in a Lesbian-specific (or, for that matter, a Gay male-specific) legal theory may engender a kind of incompleteness similar to the limitations of critiques that ignore multiplicity and intersectionality. In other words, while a focused viewpoint may voice with clarity a singular perspective it also may limit the peripheral vision of that viewpoint. Specific legal theories therefore are more likely to overlook sex/gender commonalities than would a self-consciously inclusive Queer critique. An inclusive Queer legal theory therefore is uniquely positioned to promote expansive critical insights into the various species of interlocking isms that keep women and sexual minorities down.

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At the same time, Queer legal theory cannot and should not be thought to deny room for, or to obviate the usefulness of, Lesbian-specific or other similarly focused critiques. Room and use exists for both because the two types of critiques can help to fuel each other and, in tandem, can help chip away at the heterosexist domination of legal culture and legal doctrine. The primary point urged here is that this type of specific critique should not deemed to deny or obviate Queer critiques because Queer inclusiveness and expansiveness can add dimensions that, by definition, are more likely to be missing from the more specific efforts; Lesbian legal theory can (co)exist with(in) Queer legal theory, but cannot substitute for it.

Thus, in the final analysis, the concern over Gay androsexism and the danger that it poses for Queer legal theory should serve to heighten our individual and collective vigilance against the potential for a wholesale or creeping influence of androsexism within Queer critiques. By definition the term Queer reflects and invokes this type of heightened awareness for sex/gender egalitarianism and against sex/gender imperialism. The key, then, is to live up to the standards of the term. Additionally, this type of heightened awareness is integral to the broader commitment of Queer legal theory to connectivity. The challenge, then, is to fulfill the ideals of this commitment.

Because it counters the tradition of male supremacy that has run through Western history, this heightened vigilance may not come easily, but it also is not impossible.

II.

CONNECTIVITY & COALITION The preceding sections attempt to explain why Queer legal theory, Feminism and Critical Race theory ought mutually to join hands in recognition of overlapping constituencies and interests.

However, this joinder is warranted by more than this overlapping. The situational kinship mentioned earlier, based on historical circumstances, also points sexual minorities, women, and racial minorities toward each other. This situational kinship results from inter-locking subordinations based on sexuality/sexual orientation, sex/gender, and race/ethnicity that consequently bestow on sexual minorities, women, and people of color a latent sense of cultural connectivity, or capacity for cultural connection, that we need to awaken, foster, and deploy toward the common aim of social and legal equality. More specifically, this kinship results from the uses of similar strategies to impose and sustain heterosexist, androsexist, and racist biases in law and society. Calling this strategy Psycho-Social Isolation, this section therefore urges that Queer legal theory should and must pursue and occasion an active sense connectivity and interconnection.

A. Connectivity Defined

I first encountered the term "connectivity" a few years ago while leafing through computer journals in order to make a decision about which computer I ought to purchase. The term, I learned at that time, signified the "capacity for connection" of a computer component to another component in order to expand or

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magnify the power of both. However, this concept also contemplates the interconnection of multiple components in a "network of networks" that is open, interactive, flexible, and adaptable to various applications.55 Thus, connectivity and interconnection signify the active linkage of individuals to form networks and the active linkage of such networks to form a network of networks.

Since then, I have come to realize that this technical term in fact has a much more important potential application to the broader cultural context in which we live today. In fact, since then I have come to realize that the term captures precisely a point that I consider fundamental to the empowerment of traditionally disfavored groups in American law and society: that people of color, women, and sexual minorities not only should, but must, come together as individuals, as groups, and as networks of groups to realize and activate our mutual connectivities based on our cultural commonalities. Perhaps the most basic level of cultural commonality is the construction of people of color, women, and sexual minorities as the Other.

People of color, women, and sexual minorities have a tremendous, if relatively latent, capacity for connection based on the past, the present, and the future that we share, or have shared, as Others within America. People of color, women, and sexual minorities thus share a common past of arbitrary exclusion and subordination. People of color, women, and sexual minorities also share a common present in our struggles against the legacy of the past, a legacy that still envelopes and suffocates us today. Finally, people of color, women, and sexual minorities share a common vision of a future in which our quests for empowerment and equality will have been realized. To elaborate substantively this concept of situational kinship or cultural connectivity, the sections below begin with the commonality of our past and its continuing repercussions today, and then touch on the significance of difference to the realization of connectivity in our present, and finally move to the commonality of our vision and march toward a future based on empowerment and equality.

B. Psycho-Social Isolation & Connectivity

Beginning with the past and its continuing repercussions, I would like to focus on a unified account of a common history and a common present shared by people of color, women, and sexual minorities. To anchor a unified account that brings to the surface our cultural connectivities, we must focus on the common denominator, or strategy, that has given shape and still drives our historical disempowerments and subordinations. I call this common denominator, or strategy, "Psycho-Social Isolation" because this strategy has been, and is, targeted at all of us both as individuals and as members of traditionally disfavored groups. In other words, Psycho-Social Isolation is calculated to disable us both internally, or psychologically, and externally, or socially, so that we never learn who we are, who we can be. Psycho-Social Isolation is targeted at us both within ourselves and outside of ourselves, it is intended to obscure us from our own selves, from others like us, and also from the social mainstream. And thus, Psycho-Social Isolation keeps us inchoate, both as individuals and as communities.56

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1. Connectivity & the Past For people of color, Psycho-Social Isolation has been and still is implemented through confinement to the ghetto. Historically, ghettos were defined by stark geographic boundaries, and were differentiated from society at large in very visible and concrete ways.57 Herded into these ghettos were the humans that dominant social forces defined as inferior by nature and indelibly rendered so merely by coloring.58 Of course, this Psycho-Social Isolation was enforced by law for most of the nation's history. Monuments to this history include Dred Scott v. Sandford,59 Plessy v. Ferguson,60 and Korematsu v. United States.61 Indeed, some of the nation's greatest upheavals, including the Civil War, have stemmed from the Psycho- Social Isolation of people of color.

Today, even though the support of the law supposedly has been withdrawn, such ghettos continue to exist. However, the ghetto now extends beyond stark physical constructs and includes forms of confinement that, though shaded more subtly, are just as constricting. These new forms of quasi-covert racism have taken their places alongside the traditional ghetto and have yielded a "permanent underclass."62 Now, both overt and covert acts of ghettoization support the continuing Psycho-Social Isolation of people of color both as individuals and as a group.

Consider, for instance, tokenism which exaggerates small gains or concessions to create the illusion of real or substantial improvement. Tokenism in the social, political and economic systems of the country simply create small pockets-- or ghettos-- of people of color within certain sectors of social, political, and economic mainstreams.63 In this way, the ghettoization of people of color remains intact, even though physically we may have transcended historical limitations and even though ostensibly we have entered into the nation's social or economic mainstreams. Thus, in a metaphorical as well as a literal sense, tokenism is the new ghetto: the rise of the "permanent underclass" shows how tokenism works as the new ghetto by keeping people of color concentrated at "the bottom" of social, political, and economic life, and thus relatively controlled, disempowered, and impoverished. Consequently, tokenism is both an illusion and an excuse that serves the modern-day purposes of Psycho-Social Isolation: it creates an illusion of progress while keeping people of color isolated, and creates an excuse for the waning of efforts to combat the vestiges of the past.64

For women, Psycho-Social Isolation has been and continues to be implemented through confinement to the home. Historically, socially dominant forces carved up human existence into so-called "private" and "public" spheres.65 The woman, also defined as inferior by nature, was relegated to the home, the "private" sphere of human existence that made and kept women sealed off from the rest of human discourse. As with people of color, the Psycho-Social Isolation of women also has been enforced by law throughout most of the nation's history.66 Once again, therefore, the monuments to this past are to be found in the nation's law books. Monuments to this history include Bradwell v. Illinois,67 Goesaert v. Cleary,68 and Hoyt v. Florida.69 Thus, the history of sex relations in this country, like the

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history of race relations, has been a history of domination and subordination, of power for the dominant and isolation for the subordinated.

Today, women have managed to slip through the physical demarcations of the private/public dichotomy but women, like people of color, continue to be weighed down by new and more subtle forms of androsexism. The notorious "glass ceiling" and the so-called "mommy-track," for instance, tend to shunt women to the sidelines of social and economic mainstreams.70 In practice, these two devices help to justify different treatments of women in the workplace and help to excuse the perpetuation of customs and practices that undermine the independence and equality of working women individually and collectively.71 Though purportedly on equal footing in the workplace, cultural pressures and preferences thus exert a strong pull back into the traditional roles and strictures of the home even for the most determined and savvy women.

For sexual minorities, Psycho-Social Isolation has been and continues to be implemented through confinement to the Closet. Though the Closet, unlike the ghetto and the home, is not a physical construct, its boundaries and limitations were and are just as real and, in lived experience, just as tangible as well.72 Defined by dominant social forces as inferior or defective by nature, Lesbians, Gays, Bisexuals, and the trans- gendered, like people of color and women, were driven away from personal and professional opportunities and into a paralyzing sense of self-doubt, a fear of all and a loathing of self.73 For those who resisted the Closet, forcible institutionalization or worse awaited.74 Once again, the law has stood by to enforce the Psycho-Social Isolation of a disfavored and vulnerable group.

Though sexual minorities, like people of color and women, have begun to emerge from our traditional confines, the Closet continues to be the means through which society insists on marginalizing its Lesbian, Gay, Bisexual and trans-gendered members. The recent brouhaha over sexual minorities in the military is a poignant and Orwellian reminder of the Closet's potency: while recognizing formally the existence and contributions of sexual minorities in military life, dominant social forces nonetheless have insisted on erasing the existence and significance of this entire class of persons and, more insidiously, have insisted on punishing any objection or resistance to this blanket erasure.75 "Popular" initiatives such as Oregon's anti-Gay initiative76 and Colorado's notorious Amendment Two77 likewise seek to keep sexual minorities excluded and marginalized. Perhaps the most notorious legal monument to this history is Bowers v. Hardwick, in which the Court applauded the repression of same-sex love simply on the presumed belief that the majority disliked sexual minorities.78 So, as with people of color and women, exclusion, marginalization, and subordination continues to be the rule, the reality. For each group, Psycho-Social Isolation continues to be the weapon of oppression.

2. Connectivity & the Present

Turning to the present, our attention must focus on a question that can determine the measure of our success, or our

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failure. This question is the accommodation of "difference" and diversity within and among us. Of course, much has been said and written about "difference" and diversity during the past few years and, at times, real or imagined difference has threatened to fracture cooperative efforts toward empowerment and equality.79 These are real tensions, but they are not conclusive. Of course, we must air our tensions by talking with, not at, each other, and we also must open our ears and minds so that we not only listen but also hear the message of the words. Otherwise, we run of risk of reducing ourselves to the type of closed-mindedness that we all rail against.

At the outset, we must all recognize that the experience of confinement to the ghetto, to the home, and to the Closet, are not necessarily identical to each other. Indeed, no one Closet is necessarily identical to another. Nor is the experience of life within a ghetto identical among its inhabitants. Nor is the experience of every woman in her home the same. But each and every one of these experiences is about exclusion and erasure: exclusion and erasure are the central and common features for the experience of subordination based on race/ethnicity, sex/gender, and sexuality/sexual orientation. We must recognize that, within this range of common experience, there is no hierarchy of horror or suffering. On the contrary: the horrors of oppression afflict us all. This commonality should be a base of empathy from which to build affinity, and not a field of competing, divisive, self- defeating claims to greater measures of pain and suffering.

The challenge, then, is to animate our fundamental connectivity based on common experience without ignoring or denying real and relevant difference. Personally, I am an optimist on this score because I do not take a narrow view of connectivity, nor of my fellow humans. I have seen connectivity work.80 I have seen tension transformed into harmony, and potential failure thereby turned into unprecedented success.81 In these contexts, I have seen that difference, whether real or imagined, is something that we can transcend, and even affirmatively celebrate, as we undergo the process of building understanding and affinity. Difference, after all, is another word for diversity, and we profess to value diversity. We must come to appreciate that difference is what textures our experiential and situational connectivity.

The bottom line I urge is this: difference is not an obstacle to affinity. On the contrary, the accommodation of difference within an overarching consciousness of connectivity enables all of us-- people of color, women, and sexual minorities-- to make sure that we in fact dismantle in every respect the historic monopoly of consciousness that has disempowered and subordinated us all. By learning from each other the details and nuances of our respective subordinations we can reveal to each other the full range of the system that keeps us all down. In this way, we can make sure that we jointly combat Psycho-Social Isolation in all its aspects or facets, even those against which we have not personally brushed up or those which our respective experiences do not enable us to comprehend personally. By using our commonalties and our differences to confront and challenge Psycho-Social Isolation broadly and effectively, we increase our respective as well as our collective prospects of overcoming the shared legacy of our common past.

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Thus, connectivity does not suggest that people of color, women, and sexual minorities in each instance are situated identically, or that Feminist, Critical Race, or Queer scholarship must abide by some sort of "equal time" rule that might disallow concentration on one issue or another. Instead, connectivity suggests that all our respective inquiries would yield a higher grade of insight if informed by a broader base of experience and if guided by a sense of shared experience. In sum, connectivity denotes synthesis and synergy; it does not imply homogenization. Ultimately, then the fear we need to harbor about difference is its exploitation or exaggeration.

3. Connectivity & the Future

And so, finally, I turn to connectivity and our common vision of a future that takes us beyond Psycho-Social Isolation. The path toward this future, of course, is based on an understanding that the purposes and effects of Psycho-Social Isolation were and are identical for each group. In each instance, the first objective of Psycho-Social Isolation was and is ignorance. In each instance the second objective was and is invisibility. The two work in tandem to rationalize racist, androsexist, heterosexist domination. This rationalization, when internalized by people of color, women, and sexual minorities, serves to demoralize and demobilize us. Thus, ignorance, invisibility, and internalization in combination are the purposes and effects of Psycho-Social Isolation.

Psycho-Social Isolation was and is calculated to make and to keep us ignorant by making and keeping us atomized, separated from our kind, our tribes. Psycho-Social Isolation thus makes and keeps us ignorant of our selves-- of who we are-- and also of others like us. Psycho-Social Isolation additionally was and is calculated to make and to keep us invisible. Psycho-Social isolation invisiblizes us so that we remain hidden from each other, and from the social and economic mainstreams as well. Psycho-social Isolation thus subverts our capacity for group identity and distances us from the power centers of society. Thus, ignorance keeps us invisible, and invisibility keeps us ignorant.

Ultimately, Psycho-Social Isolation was and is calculated to establish a belief in white, male, heterosexual supremacy and, conversely, to instill a sense of inherent inferiority among people of color, women, and sexual minorities. Psycho-Social Isolation, as such, is a project of internalization that uses ignorance and invisibility as its tools. Through our internalization of inherent inferiority, dominant social forces cow us, and thus secure our acquiescence to our own disempowerment and our own subordination. Psycho-Social Isolation effectively keeps people of color, women, and sexual minorities from realizing our worth, our capacity, our power, and our potential both as individuals and as communities. Psycho- Social Isolation ultimately keeps us from realizing our connectivity.

At its core, then, the Psycho-Social Isolation strategy, whether implemented through confinement to the ghetto, the home, or the Closet, is an exercise in the monopolization of consciousness. Psycho-Social Isolation is an example of the "divide and conquer" strategy. It is the manipulation of power

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to serve the few at the expense of the many. Each of us, whether as people of color, as women, and/or as members of sexual minorities, are struggling to break up this historic monopoly and manipulation of consciousness and power, and to break out of our respective confinements. Each of us is trying to come out and step up: to realize ourselves, both as individuals and as communities, to realize empowerment and equality, both personally and collectively.

Accordingly, Feminist, Critical Race, or Queer scholarship sensitive to connectivity would be singularly equipped to subject racist, sexist and heterosexist legal emplacements to a critical examination of their significance to people of color, women and sexual minorities. The depth and scope of a unified critique could strengthen its incisiveness. Such a synthesis could amount to synergy.

C. A Note on Coalition & Connectivity

The concept and rhetoric of coalition-building is not a novelty to our communities. However, connectivity and coalition do not denote precisely the same things, though the two of course are quite related. Connectivity, as I have tried to elaborate, denotes an active and personal linkage of consciousness. It is a personal awakening to the commonalties that situate and have situated people of color, women, and sexual minorities in similar riptides of social discrimination and legal oppression. Connectivity is about understanding the ways in which each of our lives is prodded by dominant social and legal forces to follow common scripts of denial and denigration.

Coalition-building, on the other hand, denotes a strategic combining of forces in order to take collective actions or to effectuate coordinated plans. In this sense, coalition-building is about group tactics, rather than personal awakenings. But, I hope it is self-evident that connectivity precedes and facilitates coalition-building. By understanding our connectivity we pave the road for our coalition-building and also begin to appreciate the need for, and urgency of, coalition- building with our situational kin.82

Not surprisingly, I favor both connectivity and coalition. I think and I know that they go hand-in-hand. And so, though this essay focuses on connectivity (because it is the less- discussed subject of the two), I hope that a heightened sense of our commonalities will strengthen our sense of solidarity, and our coalition-building efforts. In turn, I hope that a strengthening of our solidarity and coalition-building efforts will enhance the durability and the effectiveness of our coalitions. In this way, each of us, as individuals and as members of our diverse and overlapping communities, can hasten the time when people of color, women, and sexual minorities will replace disempowerment and subordination with empowerment and equality, not just in theory, not just on the books, but in fact, in lived experience.

III.

A PERSONAL EPILOGUE If my personal discussions are any barometer of the broader legal landscape, the theoretical undertakings proposed here may raise an eyebrow or two. If serious discourse is thereby

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generated, all the better. To that end, I note the three clusters of skepticism that informal discussions leading up to this essay have pointed out.

A. Left-handed, Bald-headed Golfers  the Law

The threshold skepticism questions the propriety or viability of Queer legal theory altogether: what's next, a theory for left-handed, bald-headed golfers?83 The retort is relatively simple: any classification that dominant social forces concoct to stigmatize systematically the individuals pushed into them is worthy of critical re-examination. Fittingly, that re- examination should be as sweeping as the discrimination that it addresses. This standard follows from the guarantee that American society formally issues to all-- "equal justice under law."84 Applied to the Queer category, this standard shows abundant justification for the proposed venture.85 Whether other categories hypothesized by active imaginations also satisfy this standard is a question that, though interesting, frankly does not address this venture's value.

B. The Consciousness Curve

The second skepticism questions the practicality animating a sense of connectivity among and between women, sexual minorities and people of color. Is the notion utopian? Perhaps, but I think not: converging interests invite us in that direction. In fact, recent events indicate that an increasingly greater number of persons are beginning to recognize the social realities that undergird my arguments and aspirations.86 Though we cannot foretell where today will lead, the consciousness curve favors connectivity.

C. My Selves, My Kinds

Finally, the third skepticism wonders whether my optimism amounts to naivete. Perhaps it does, but I think not. Time will tell. If it is so, I can only hope that this optimism proves infectious: as a Gay Latino male, mutually exclusive affinities are unthinkable. I have no choice but to establish the connections that cohere my persona and my communities. Race/ethnicity, sex/gender, and sexuality/sexual orientation work in tandem to construct my self in ways that a blindsided mainstream cannot (nor cares to) fathom, and that I have yet to master. In the end, I do know one thing: my multiplicity is my contribution to coalition through connectivity. To others out there like me, though different from me, I invite dialogue and reciprocation.

Conclusion

The events of the past twenty-five years, and their impact on legal culture, have set the stage for the emergence of Queer legal theory. Sooner or later, and it ought to be sooner rather than later, Queer legal theory must take its place among, and make its contributions to, liberationist legal scholarship if the law is to become informed and reformed regarding sexual minorityhood, and if the law is to be responsive and accountable to sexual minorities. However, the advent of Queer legal theory should not simply expand the law's horizons regarding sexual minorities, though this expansion is much needed and long overdue

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in order to make the law responsive and accountable to Lesbian, Gay, Bisexual, and trans-gendered issues. Instead, the advent of Queer legal theory also should occasion an opportunity to discover the connectivity that people of color, women, and sexual minorities all share with and among each other. This sense of connectivity denotes a personal recognition of the past, present, and future commonalties that shape Critical Race, Feminist, and Queer quests and perspectives. This sense of connectivity also includes a celebration of our diversity based on the multiplicities that constitute us as layered individuals and as overlapping cross-communities. In sum, the advent of Queer legal theory must inform legal culture about sexual minorities, and should aid the accommodation and affirmation of difference and diversity within an overarching consciousness of connectivity,

1. Associate Professor of Law, California Western School of Law. J.S.D. Stanford Law School 1994; J.S.M. Stanford Law School 1991; J.D. cum laude University of Florida College of Law 1984; B.A. University of California-Berkeley 1978. This essay is based in part on a talk delivered at the 1993 California Statewide Minority Attorneys' Conference in San Francisco on September 11, 1993. My thanks go Lawrence Friedman and Paul Brest, who extended the earliest validation of my interest in the creation of Queer legal theory. My thanks go as well to Bob Weisberg, Barbara Fried, Angela Harris, Judy McKelvey, Lynne Henderson, Marnie Mahoney, Joan Mahoney, Marc Fajer, Mary Coombs, and Barb Cox for lending their ear and support at critical times.

2. As used in this essay, "sexual minorities" primarily refers to Lesbians, Gay men, and Bisexuals, but also includes the transgendered, which principally means transsexuals and transvestites.

3. As described below, the term principally signifies two concepts. First, Queer connotes a sense of inclusiveness and egalitarianism because it groups together Lesbians, Gay males, Bisexuals and the trans-gendered. Second, Queer denotes a sense of radicalism in the fight against sex/gender subordination because it symbolizes an assertive self-identity. By using the term here, the essay consciously seeks to invoke both concepts. See also JUDITH BUTLER, BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 223-42 (1993) (discussing the theoretics of the term).

4. For a current history of the Stonewall Riots, see MARTIN DUBERMAN, STONEWALL (1993).

5. The best account of this process is JOHN D'EMILIO, SEXUAL POLITICS, SEXUAL COMMUNITIES: THE MAKING OF A HOMOSEXUAL MINORITY IN THE UNITED STATES, 1940-1970 (1983) hereinafter COMMUNITIES. A companion book of essays amplifies this account. See JOHN D'EMILIO,

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MAKING TROUBLE: ESSAYS ON GAY HISTORY, POLITICS, AND THE UNIVERSITY (1992), hereinafter TROUBLE.

6. D'EMILIO, COMMUNITIES, supra note 5 at 9-22. See also ANDREA WEISS & GRETA SCHILLER, BEFORE STONEWALL: THE MAKING OF A GAY AND LESBIAN COMMUNITY (1988).

7. See, e.q., ERIC MARCUS, MAKING HISTORY: THE STRUGGLE FOR GAY AND LESBIAN EQUAL RIGHTS, 1~45-1990-- AN ORAL HISTORY (1992).

8. D'EMILIO, COMMUNITIES, supra note 5 at 23-39.

9. D'EMILIO, COMMUNITIES, supra note 5 at 24-28.

10. Id. at 29-31.

11. Id. at 31-33.

12. The New York story is told in D'EMILIO, COMMUNITIES, supra note 5 at 149-75.

13. The San Francisco story is told in D'EMILIO, COMMUNITIES, supra note 5 at 176-95.

14. But these pioneering activists had to fight fiercely to make new hometowns for themselves within the nation's urban centers because the cities did not cheerfully welcome these newcomers. See, e.q., Project, The Consentinq Adult Homosexual and the Law: An Empirical Study of Enforcement and Administration in Los Angeles County, 13 U.C.L.A. L. REV. 643 (1966); Steven A. Rosen, Police Harassment of Homosexual Women and Men in New York City, 1960-1980, 12 COLUM. HUMAN RTS. L. REV. 159 (1980-81). Today, Gays and Lesbians are fanning out into more rural areas and oftentimes find themselves receiving the same lack of welcome. E.q., Mississippi Burning: Lesbians and Intolerance in a Small Town, TIME, Dec. 20, 1993, at 33 (reporting the campaign of harassment, including nighttime shotgun blasts, mounted in 1993 by the residents of Ovid, Mississippi to drive out of town a women's retreat run by Lesbians).

15. D'EMILIO, COMMUNITIES, supra note 5 at 75-91.

16. See D'EMILIO, TROUBLE, supra note 5 at 237-39.

17. See D'EMILIO, COMMUNITIES, supra note 5 at 223-31.

18. D'EMILIO, COMMUNITIES, supra note 5 at 231-33. D'EMILIO, TROUBLE, supra note 5 at 239-41.

19. The account of this process, as it occurred in San Francisco specifically, is set forth in D'EMILIO, TROUBLE, supra note 5 at 74-95.

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20. See Arthur Bell, The Bath Life Gets Respectability ln LAVENDER CULTURE 77 (Karla Jay  Allen Young eds. 1978) (describing both the delights and the grimness of life in the baths of New York City).

21. The intensity of this first wave of sexual exuberance is captured in JOHN RECHY, SEXUAL OUTLAW: A DOCUMENTARY (rev. ed. 1984) (depicting the promiscuous "sexhunts" of those years).

22. D'EMILIO, TROUBLE, supra note 5 at 242-46.

23. D'EMILIO, TROUBLE, supra note 5 at 246, 251-56.

24. See generally Allen Young, Out of the Closets, Into the Streets, ln OUT OF THE CLOSET: VOICES OF GAY LIBERATION 6 (Karla Jay & Allen Young eds. 1977)

25. "After all, sexual liberation meant doing what felt good, without guilt or shame, even though society believed otherwise." Bell, supra note 20 at 81.

26. D'EMILIO, TROUBLE, supra note 5 at 262-68.

27. See FRANK BROWNING, THE CULTURE OF DESIRE: PARADOX AND PERVERSITY IN GAY LIVES TODAY 26-54 (1993) (describing "Queer rage" in San Francisco and how it has produced a highly politicized and radicalized sensibility among today's community leaders). This rage, along with the heartbreak and bewilderment spread by the plunge into AIDS, is detailed in various other works. See, e.q., PERSONAL DISPATCHES: WRITERS CONFRONT AIDS (John Preston ed. 1989) (presenting a collection of essays by various authors); ANDREW HOLLERAN, GROUND ZERO (1988) (presenting a series of essays by the same author, and focused on the New York experience); PAUL MONETTE, BORROWED TIME: AN AIDS MEMOIR (1988) (describing the slow death of the author's partner in Los Angeles).

28. See, e.q., GAY VOICES FROM EAST GERMANY (Jurgen Lemke ed. 1991). See generally HOMOSEXUALITY: A EUROPEAN COMMUNITY ISSUE, ESSAYS ON LESBIAN AND GAY RIGHTS IN EUROPEAN LAW AND POLICY (Kees Waaldijk & Andrew Clapham eds. 1993).

29. See, e.q., Frances Fitzgerald, The Castro-- I, THE NEW YORKER, July 21, 1986, at 34 and Frances Fitzgerald, The Castro-II, July 28, 1986, at 44 (providing an in-depth look at the Gay and Lesbian community centered in the Castro district of San Francisco). See also Gayle Rubin, Thinking Sex, ln PLEASURE AND DANGER: EXPLORING FEMALE SEXUALITY 267, 296-97 (Carole S. Vance ed. 1984) (observing that "Gay pioneers occupied neighborhoods that were centrally

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located but run down" and then achieved "spectacular success... in creating a variegated gay economy").

30. E.g., MEN ON MEN: BEST NEW GAY FICTION (George Stambolian ed. 1986) and WOMEN ON WOMEN: AN ANTHOLOGY OF AMERICAN LESBIAN SHORT FICTION (Joan Nestle & Naomi Holoch eds. 1990).

31. E.g., ROBERT MAPPLETHORPE, BLACK BOOK (1986).

32. E.g., ARMISTEAD MAUPIN, 28 BARBARY LANE: A TALES OF THE CITY OMNIBUS (1990) (pulling together the popular "tales of city" series, which also were produced as a television mini-series during 1994).

33. See generally Michael Bronski, CULTURE SHOCK: THE MAKING OF A GAY SENSIBILITY (1984).

34. For instance, in the early 1990s, the San Francisco Board of Supervisors included Harry Britt, who served as President of the Board, Roberta Achtenberg, and Carole Midgen, all of whom were elected as openly Gay or Lesbian leaders. Moreover the mayor, Art Agnos, was a openly allied with the Gay and Lesbian political community.

35. See infra notes 56 to 79 and accompanying text.

36. E.g., David Link, I am Not Queer, 25 REASON 45 (1993) (arguing that Queer will always trigger negative connotations and that the radicalism of Queerness is unnecessary).

37. Much of this scholarship is incorporated in Francisco Valdes, Queers, Sissies, Dykes & Tomboys: Deconstructing the Conflation of Sex, Gender, and Sexual Orientation in EuroAmerican Law and Society, CAL. L. REV.(forthcoming).

38. See Lawrence Friedman, The Concept of Self in Legal Culture, 38 Cleve. St. L. Rev. 517 (1990).

39. The basics of this ongoing struggle is captured in JAMES DAVISON HUNTER, CULTURE WARS: THE STRUGGLE TO DEFINE AMERICA (1991) .

40. See, e.g., Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 BERKELEY WOMEN'S L.J. 191 (1989-90) (critiquing the general tendency to omit sexual orientation issues from Feminist legal scholarship).

41. See infra notes 57 to 82 and accompanying text.

42. See infra notes 57 to 82 and accompanying text.

43. Angela Harris, Race, Essentialism, and Feminist

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Legal Theory, 42 STAN. L. REV. 582, 608 (1990).

44. See Kimberle Crenshaw, Demarginalizinq the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 166 (1989) (introducing the concept of intersectionality); Kimberle Crenshaw, Mappinq the Margins: of Color, 43 STAN. L. REV. 1241, 1251-53 (1991) (developing and applying the insights of intersectionality).

45. Liz, My Name is Liz, ln COMPANERAS: LATINA LESBIANS (AN ANTHOLOGY) 77, 79 (Juanita Ramos ed. 1987).

46. E.q., Sleeping With the Enemy? Talking About Men, Race, and Relationships, OUT/LOOK, Winter 1992, at 30.

47. These two examples are not isolated instances, but part of a small though growing discourse. See also, e.q., Richard Fung, Looking for My Penis: The Eroticized Asian in Gay Video Porn, ln HOW DO I LOOK? QUEER FILM AND VIDEO 145-60 (Bad Object-Choices ed. 1991); Kobena Mercer, Skin Head Sex Thing: Racial Difference and the Homoerotic Imaginary, ln id. at 169-210.

48. E.q., Mari J. Matsuda, Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition, 43 STAN. L. REV. 1183 (1991).

49. However, reflecting the dearth of germane material from the law, most of the readings compiled for this workshop came from sources in other disciplines. See Readings for Plenary Session on Race  Sexual Orientation for the 1994 Critical Race Theory Workshop (Peter Kwan & Francisco Valdes eds. 1994) (copy on file with author).

50. Matsuda, supra note 48 at 1188.

51. See generally Mari Matsuda, When The First Quail Calls: Multiple Consciousness as Jurisprudential Method, 11 Women's Rights Rptr. 7 (1989) (introducing the concept of multiple consciousness as the ability to see how law operates on various levels simultaneously and sometimes inconsistently).

52. See, e.g., FORMS OF DESIRE: SEXUAL ORIENTATION AND THE SOCIAL CONSTRUCTIONIST CONTROVERSY (Edward Stein ed., 1990). See also John P. De Ceccon & John P. Elia, A Critique and Synthesis of Biological Essentialism and Social Constructionist Views of Sexuality and Gender, 24 J. HOMOSEXUALITY 1 (1993); Carole S. Vance, Social Construction Theory: Problems in the History of Sexuality, ln HOMOSEXUALITY, WHICH HOMOSEXUALITY?:

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ESSAYS FROM THE INTERNATIONAL SCIENTIFIC CONFERENCE ON LESBIAN AND GAY STUDIES (Carole Vance, Martha Vicinus  Jeffrey Weeks eds., 1989).

53. See supra notes 57 to 79 and accompanying text.

54. RUTHANN ROBSON, LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW 22 (1992) (noting that the bulk of "sexual orientation" scholarship focuses on Gay male issues and arguing that "[i]f this trend continues, [Q]ueer legal theory will be gay male theory")

55. See Andrea L. Johnson, Legal And Regulatory Issues Confronting Cities in Developing an Interconnected Fiber Optic Network; The San Diego Model, RUTGERS COMPUTER & TECH. L.J. (1994) (manuscript on file with author).

56. The concept of Psycho-Social Isolation, which is sketched here, is developed in more detail in Francisco Valdes, Sourcing the Mutualities and Continuities of Heterosexism and Androsexism: Tracing the Conflation of Sex, Gender. and Sexual Orientation to Its Origins (forthcoming) (unfinished manuscript on file with author).

57. See generally Martha Mahoney, Note, Law and Racial Geography: Public Housing and the Economy in New Orleans, 42 STAN. L. REV. 1251 (1990) (using the New Orleans experience to examine how housing politics and policies have failed to overcome the physical segregation races through ghettos).

58. See, e.g., Thomas Ross, The Rhetorical Tapestry of Race: White Innocence and Black Abstraction, 32 WM. & MARY L. REV. 1 (1990) (showing the ways in which African-Americans have been constructed and represented as inferiors).

59. 60 U.S. (19 How.) 393 (1857) (in which the Supreme Court validated race-based slavery by defining African-Americans as "property" with no rights rather than as "citizens" with standing to invoke the protection of the courts).

60. 163 U.S. 537 (1896) (in which the Supreme Court validated the now-discredited "separate but equal" doctrine that in actuality kept African-Americans "separate" from the white majority but most certainly not "equal" to it).

61. 323 U.S. 214 (1944) (in which the Supreme Court validated the internment of persons with a Japanese ancestry and the resulting confiscation of their property). This case was one of several that approved the government's mistreatment of Asian Americans during World War II. See generally PETER IRONS, JUSTICE AT

-------------------------------END PAGE 25---------------------------------

WAR: THE STORY OF THE JAPANESE AMERICAN INTERNMENT CASES (1983).

62. See, e.g., Roy L. Brooks, The Ecology of Inequality: The Rise of the African-American Underclass, 8 HARV. BLACKLETTER J. 1 (1991) (exploring the reasons for the continuing segregation of African-Americans in pockets of poverty).

63. See generally Lani Guinier, The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success, 89 MICH. L. REV. 1077 (1991) (exploring ways and means through which racial minorities may go beyond token gains in political arenas).

64. See generally DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM (1992) (considering the apparent permanence of racist ideology in law and society).

65. See generally Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L. REV. 1349 (1982) (arguing that the distinction does not dictate judicial choices and rulings but that it facilitates desired outcomes motivated by other reasons).

66. See generally Wendy W. Williams, The Equality Crisis: Some Reflections On Culture. Courts & Feminism, 7 WOMEN'S RTS. L. REP. 175, 176-79 (1982) (reviewing judicial mistreatment of women).

67. 83 U.S. (16 Wall. 130 (1872) (in which the Court approved the exclusion of women from the practice of law, partially on the grounds that God meant for them to stay at home).

68. 335 U.S. 464 (1948) (in which the Court upheld the denial of bartending licenses to all women except the wives or daughters of male bar owners).

69. 368 U.S. 57 (1961) (in which the Court upheld the automatic exclusion of women from juries so that they could stay home and continue to serve as the "center" of family life).

70. E.q., Honorable Judith S. Kaye, Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality, 57 FORD. L. REV. 111 (1989) (a lecture in which Judge Kaye discusses how obstacles like the mommy track and the glass ceiling impeded the social and economic progress of women in law practice) and Leslie Bender, Sex Discrimination or Gender Inequality?, 57 FORD. L. REV. 941 (1989) (commenting on the Kaye lecture).

71. See, e.q., Ellen V. Futter, Women Professionals:

-------------------------------END PAGE 26---------------------------------

The Slow Rise to the Top, 57 FORD. L. REV. 965 (1989) (discussing how women have been allowed into entry-level positions while remaining excluded from inner circles of power).

72. See generally THE ORIGINAL COMING OUT STORIES (Julia Penelope & Susan J. Wolfe eds. 2d ed. 1989) (describing the experiences of various men and women while in the Closet and while trying to "come out" of the Closet).

73. See generally MICHAEL SIGNORILE, QUEER IN AMERICA (1993) (describing and denouncing the continuing mistreatment of Lesbians and Gay men in American society).

74. E.g., Gene Weingarten, Fatal Abstraction: The Death and Life of Artist Carroll Sockwell-- An Investigative Obituary, WASH. POST, Sept. 27, 1992, at F1 (reporting that the artist had "been committed to [an institution] by his family because he was gay").

75. See, e.g., Francisco Valdes, Sexual Minorities in the Military: Charting the Constitutional Frontiers of Status and Conduct, 27 CREIGHT. L. REV. 381 (1994) (critiquing the history of the exclusionary policy and its acceptance by the courts, including the most recent "don't ask, don't tell" compromise issued by the Clinton Administration in 1994).

76. See Brad Cain, Anti-Gay Proposal Remains Divisive After Oregon Vote, SAN DIEGO UNION-TRIB., Nov. 8, 1992, at a-35 (reporting that the initiative, though defeated, nonetheless had "unleashed prejudice" against sexual minorities). See also Honorable Hans A. Linde, When Initiative Lawmaking is Not "Republican Government": The Campaign Against Homosexuality, 72 OR. L. REV. 19 (1993) (considering how "popular" initiatives that seek to formalize societal discrimination against unpopular groups may violate the constitutional guarantee of republican government).

77. Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (holding that efforts to embed the right to discriminate in the constitution effectively "fence out" minority groups from electoral opportunities to change the law and thus violate the right of all to participate in the political process on equal footing).

78. 478 U.S. 186 (1986).

79. See, e.g., Sheila Foster, Difference and Equality: A Critical Assessment of "Diversity", 1993 WISC. L. REV. 105 (critiquing current notions of diversity arguing that the goal of diversity should be to include individuals from groups that have been systematically excluded or marginalized in society and in law).

-------------------------------END PAGE 27---------------------------------

80. The most recent example from my personal history is the San Diego County Bar Association Task Force on Diversity in the Profession, to which I belong. The task force was formed in 1991 to bring together representatives from traditionally marginalized groups within the legal profession in order to discuss problems and craft solutions. The task force has developed a first-ever bias survey that comprehensively addresses prejudice based on race, nationality, religion, sex, sexual orientation, and physical handicap. Based on personal participation, the deliberations and proceedings of the task force illustrate and demonstrate the potential power of connective sensibilities and efforts.

81. Another example from my personal history involves the Coalition for a Diversified Faculty at Stanford Law School during 1990-91, to which I belonged. This ad hoc group of students came together to help the school identify prospective candidates for faculty appointments, but the many needs to be filled coupled with the few positions available threatened to rupture the coalition. However, after much discussion, the group came to the consensus that the appointment of a woman of color and of an openly Lesbian or Gay candidate should take precedence over other needs because the faculty at that time included neither type of person. That year, two of the three appointments made went to a woman of color and an openly Lesbian candidate.

82. See generally Sharon Parker, Understanding Coalition, 43 STAN. L. REV. 1193 (1991) (describing coalitions as "something natural, an extension of kinship, like family and community").

83. This "category" was posed in an after-class discussion during the Legal Education Seminar offered at Stanford Law School in the Autumn 1991 term. I note with interest that the category overlaps somewhat with a similar query posed to Ruthann Robson in a different setting. See Ruthann Robson, Embodiment(s): The Possibilities of Lesbian Legal Theory in Bodies Problematized by Postmodernisms and Feminisms, 2 L. & SEXUALITY 37, 58 (1992) (the precise query posed there was "green-eyed golf aficionados"). I do not know what to make of the similarity in hypothesizing but note it for the record, as they say.

84. The words appear above the portico of the Supreme Court building in Washington, D.C., much like an advertisement on a corporate headquarters. See also, e.g., U.S. CONST. amend. XIV.

85. For a fairly comprehensive listing of inequalities, see Developments in the Law- Sexual

-------------------------------END PAGE 28---------------------------------

Orientation and the Law. 102 HARV. L. REV. 1508 (1989).

86. E.g., Civil Rights Group Joins Boycott Effort, L.A. TIMES, Jan. 7, 1993, at A13 (reporting that the predominantly Black Southern Christian Leadership Conference had joined the boycott of Colorado called by Lesbian and Gay rights activists following the vote); Latino Journalists Vote to Move Convention Out of Colorado, L.A. TIMES, Jan. 10, 1993, at 23 (reporting that the National Association of Hispanic Journalists also had joined the boycott protesting passage of the amendment); HRCF Connects Choice With Gay/Lesbian Agenda at Nat'l March, GAY & LESBIAN TIMES, April 16, 1992, at 19 (reporting that the Human Rights Campaign Fund, the leading sexual minority political action committee, had linked reproductive choice with Lesbian and Gay issues); Gary Libman, Sharing a Political Platform, L.A. TIMES, Nov. 15, 1990, at E1 (reporting that Lesbian involvement in AIDS issues and organizations has reduced sexism among Gay males and helped to forge new alliances). See also The Hon. Thelton E. Henderson, Coming Out for Gay Rights, 3 YALE J.L. & LIB. 25 (1992) (arguing that the subordination of sexual minorities and or racial minorities are akin); Mari J. Matsuda, Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition, 43 STAN. L. REV. 1183 (1991) (urging that critical legal scholars look for and expose the inter-relationships of various bigotries).

********************

NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW

VOL. 1, ISSUE 1 Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)

ANALYSIS OF THE OPINION OF THE ATTORNEY GENERAL OF CALIFORNIA ON THE REGISTRATION OF NAMES OF

FAMILY ASSOCIATIONS BY THE SECRETARY OF STATE By Thomas F. Coleman and David F. Link

Family Diversity Project Spectrum Institute P.O. Box 65756 Los Angeles, CA 90065 (213) 258-5831

TABLE OF CONTENTS

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . .

. . . . -------------------------------END PAGE 29---------------------------------

(a) Legal Authority of the Opinion of the Attorney General. . . . . . . . . . . . . . . .

(b) The Attorney General's Opinion . . . . . . . . . . . .

II. ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . .

(a) The Doctrine of Esjudem Generis is

Incorrectly Applied Here . . . . . . . . . . . . . . .

(b) Fundamental Rules of Statutory Construction Require Relying on the Statute's Language

to Determine Legislative Intent. . . . . . . . . . . .

(c) The Family Law Act is Irrelevant to Any Issue Related to the

Registration of Association Names. . . . . . . . . . .

III. THE CONCERNS EXPRESSED IN THE OPINION, AND THE

EVENTS LEADING TO IT, DEMONSTRATE THAT THE QUESTIONS ADDRESSED HAVE LITTLE TO DO

WITH LEGAL ASPECTS OF THIS INQUIRY. . . . . . . . . . . . .

APPENDIX

A. Senate Bill 192 (introduced 1-17-91). . . . . . . . . . . .

B. Letter from state Senator Newton Russell to Legislative Counsel

Bion Gregory Requesting Opinion on Registry of Names of Family

Associations (dated 1-17-91). . . . . . . . . . . . . . . . C. Opinion of Legislative Counsel on Family Associations #2151

(dated 1-19-91) . . . . . . . . . . . . . . . . . . . . . . D. Letter from Senator Newton Russell to state Secretary of State

March Fong Eu . . . . . . . . . . . . . . . . . . . . . . . E. Bill Geiger, "Family Bill of Rights" Targets Pro-Gay Legislation,

Frontiers, Mar. 15, 1991. . . . . . . . . . . . . . . . . . F. Michael Bowman, Family Congress: Uniting the Pro-Family

Movement, Calif. Citizen, Apr. 1991 . . . . . . . . . . . . G. Letter from Western Center for Law  Religious Freedom to

Secretary of State March Fong Eu (dated 3-4-91) . . . . . . H. Letter from Secretary of State March Fong Eu to Senator Newton

Russell (dated 3-11-91) . . . . . . . . . . . . . . . . . . -------------------------------END PAGE 30---------------------------------

I. Letter from Senator Newton Russell to state Attorney General

Daniel Lungren (dated 3-18-91). . . . . . . . . . . . . . .

J. Letter from Assistant Attorney General Nelson Kempsky to attorney

Thomas F. Coleman (dated 5-14-91) . . . . . . . . . . . . . K. Opinion of Attorney General Daniel Lungren 91-505 (dated 1-16-92) L. Letter from Chief Counsel to the Secretary of State Anthony Miller to

Attorney General Daniel Lungren (dated 4-24-91) . . . . . .

THE ATTORNEY GENERAL'S OPINION ON THE REGISTRATION OF NAMES

OF FAMILY ASSOCIATIONS IS CLEARLY ERRONEOUS

I

INTRODUCTION

On December 13, 1990, the Family Diversity Project held a press conference at the State Building in Los Angeles to announce the availability of an administrative system for family associations to register with the California Secretary of State.1

Seven families attended the press conference. They included members of a foster family, a single-parent guardianship family, a stepfamily, an unmarried couple, a family of two men and a family of two women. Each of the families had registered with the Secretary of State as an unincorporated nonprofit association. Each had received an official ornate certificate acknowledging that the families had registered their names. The style of name registration used by the families was "Family of John Doe and Jane Roe." Those with children also included the names of the children in the name of the family association.

The registration system, and its use by so-called "nontraditional" families, sparked a considerable amount of national media attention.2 In response to media inquiries, Anthony Miller, chief deputy Secretary of State, explained that the registration had no known tax or legal consequences and conferred no automatic benefits beyond the sentimental.

After nearly two months of positive press, the registration procedure came under attack by extremely conservative religious and political leaders and groups.3 The first official sign of challenge emerged on January 17, 1991, when state Senator Newton Russell (R-Glendale) introduced SB 192, a "spot bill" intended to redefine the term "association" used in the Corporations Code Section pertaining to associational name registration.4 The same day he sent a memo to the Legislative

-------------------------------END PAGE 31---------------------------------

Counsel asking for an opinion on the legality of the registration system.5

On February 19, 1991, the Legislative Counsel issued an opinion to Senator Russell.6 The opinion noted that "[N]o formalities are required for the formation of an unincorporated nonprofit association."7 It also observed that the registration of the name of an association does not, in itself, create the association or create any automatic rights or obligations. The opinion contained three other basic conclusions:

-- "A group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family may form a nonprofit association to formalize that relationship. However, many rights traditionally

granted to family members may be unavailable if based solely on the association."8

-- "The state does not have any potential liability if it fails to inform persons who register as an unincorporated nonprofit association with a name that indicates characteristics similar to those of a family of the consequences of forming such an

association."9

-- "A group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family are not entitled to register the name of their 'association' with the Secretary of State under Section 21301 of the Corporations Code10 under a style such as 'Family of John Doe and Jane Roe.'"11

This third conclusion was based on the Legislative Counsel's opinion that the law does not permit organizations to gain exclusive use of surnames or generic words such as "family" by registering them with the Secretary of State.

Armed with the Legislative Counsel's opinion that family associations could not register their names with the state, on February 20, 1991, Senator Russell wrote to the Secretary of State demanding that she revoke the previously registered names and terminate further registration.12

On February 22, 1991, a coalition of extremely conservative religious and political leaders convened a so-called "Family Congress" in Sacramento.13 One of the key focal points of the "Family Congress" was a "Family Bill of Rights" drafted by David Llewellen of the Western Center for Law and Religious Freedom. Conferees also discussed strategies to dismantle the family registration system operated by the Secretary of State. Attorney General Dan Lungren attended the

-------------------------------END PAGE 32---------------------------------

conference and made a major presentation to this group.14 A summary of the Attorney General's remarks to the group were not

made available to the public. 15

Having gained support and momentum from the "Family Congress," the Western Center for Law and Religious Freedom sent a letter to the Secretary of State on March 4, 1991, demanding that she terminate the registration of the names of family associations.16 A week later, the Western Center indicated to the press that it was considering a legal challenge to the registration system.17

On March 11, 1991, the Secretary of State issued an opinion in which she concluded that the registration of the names of associations using the term "family" in their title was a lawful ministerial duty that she would continue.18 She advised Senator Russell that her office would act in accordance with the legal analysis of her chief legal counsel. In that opinion, Chief Counsel Anthony Miller agreed with most of the conclusions of the Legislative Counsel, but disagreed with the ultimate opinion that the names of family associations could not be registered. The Secretary of State construed Section 21301 to "provide for the ministerial registration of the names of unincorporated nonprofit associations upon proper application and the issuance of certificates accordingly even if the names include the word 'family' or one or more 'surnames.'"19 The legal opinion of her office added, in relevant parts:

"In his opinion, the Legislative Counsel concludes that a group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family may form an unincorporated nonprofit association to formalize that relationship. We agree. Legislative Counsel concludes that no formalities are required for the formation of such an incorporated nonprofit association. We agree. Legislative Counsel appears to conclude that an association described above can assume a name under a style such as "Family of John Doe and Jane

Roe." We agree. Although not essential to our analysis of the duties of this office, Legislative Counsel concludes that 'family' has many varied meanings and that it may

include individuals not related by blood or married who are living together in the intimate and mutual interdependence of a single home or household. We agree.

Notwithstanding the foregoing, Legislative Counsel concludes that an unincorporated nonprofit association which has assumed a name in the style of 'Family of John Doe and Jane Roe' cannot register that name pursuant to Corporations Code section 21301. We

-------------------------------END PAGE 33---------------------------------

disagree." (emphasis added)20

After a lengthy exposition of statutory language, relevant case law, and legislative intent, and a thorough discussion of the mistaken analysis of the Legislative Counsel, the Secretary of State's legal opinion concluded that the registration of the names of family associations was legally appropriate, adding:

"We need not address various constitutional issues which Legislative Counsel's conclusion, if correct, would raise. These issues would include, but probably not be limited to, the rights of association, free speech, privacy, due process and equal protection which are provided for in varying degrees by the Constitutions of the United States and of California. These significant issues would have to be engaged only if the statutes were to be read to preclude the registration of the names of only one category

of association, e.g., an association with a name that included the word 'family' and a surname. We believe the contrary to be true."21

"This office always gives considerable weight to the Opinions of Legislative Counsel. In the instant case, however, the Secretary of State is, ultimately responsible for the implementation of the laws that are within the jurisdiction of her office and she

must independently determine what those laws require her to do."22

Apparently dissatisfied with the response from the Secretary of State, Senator Russell asked Attorney General Dan Lungren for an opinion on March 18, 1991.23 For nearly two months it was uncertain whether the Attorney General would agree to issue an opinion on the subject. It had been a longstanding policy within the Attorney General's Office not to issue an opinion if litigation on the issue was pending or might be initiated in the near future. This policy against issuing an opinion was even stronger if a potential party to such litigation might be a state agency.

In April 1991, Attorney General Dan Lungren was advised that litigation on the subject of "family registration" was likely to occur and that the Secretary of State would be a party to such a lawsuit.24 However, overruling the advice of the Chief of his Opinion Unit and other attorneys in his office, Attorney General Dan Lungren decided to issue an opinion in response to Senator Russell's request.

On May 14, 1991, the Chief of the Attorney General's Opinion Unit sent a letter to interested organizations advising them that the Attorney General would issue an opinion on the following question:

"May individuals register themselves as a 'family'

-------------------------------END PAGE 34---------------------------------

with the Secretary of State under the provisions pertaining to unincorporated nonprofit associations? If so, what

rights follow from such registration?"25

The duty of researching and writing the opinion was delegated to Deputy Attorney General Ronald Weiskopf in the Attorney General's San Diego office. Beginning in September, 1991, the Family Diversity Project periodically contacted the Attorney General's Office to check on the status of the opinion. In December 1991, the project was informed by two separate sources in the Attorney General's office that the delay in issuing the opinion was unusual and that the draft of the opinion had been on Dan Lungren's desk for several months.

The Attorney General's opinion was finally released on January 16, 1992.26 It bears the name of Anthony S. DaVigo as its author. The opinion concludes:

"Under the law pertaining to unincorporated nonprofit associations, the Secretary of State may not issue a certificate of registration as a 'family' to any two or more individuals who share a common residence."27

It is noteworthy that the question answered by the Attorney General is different from that asked by Senator Russell and is also different from that announced to the public by the Attorney General's Office on May 14, 1991. The criteria of sharing a common residence was not included in Senator Russell's

request to the Attorney General on March 18, 1991.28 It was also not included in the question which the Attorney General announced on May 14, 1991 that he would answer.29

To be properly understood, the Attorney General's opinion must be viewed within the historical, administrative, and political context in which it was written. The introduction to this memorandum has attempted to explain this complex and highly-charged political context. The remainder of this memorandum analyzes the conclusions and reasoning of the Attorney General's opinion. It concludes that the Attorney General's opinion is legally flawed in many ways. In the final analysis, the Secretary of State's construction of the relevant statutory scheme is correct and should be adopted by the courts in any subsequent litigation.

I(a)

Legal Authority Of The Opinion of the Attorney General

The courts have clearly and consistently held that "when an administrative agency is charged with enforcing a particular statute, its interpretation of the statute will be

-------------------------------END PAGE 35---------------------------------

accorded great respect by the courts 'and will be followed if not clearly erroneous.'"30 As demonstrated by this memorandum and its attachments, the Secretary of State's legal analysis of the relevant statutory scheme is far from "clearly erroneous," in fact it is clearly correct, and therefore her interpretation should be followed.

The "clearly erroneous" standard that applies to administrative construction contrasts with the standard governing opinions of the attorney general, which, while entitled to great respect, are not controlling as to the meaning of a statute.31 Courts have consistently held that opinions of the Attorney General are advisory only, and do not carry the force of law.32 Furthermore, opinions of the Attorney General are to be issued in response to "specific questions posed by state legislators, officers and agencies" and are not to be issued gratuitously.33 The Supreme Court has been critical of, and refused to follow attorney general opinions which are unreasoned, or make assumptions without sufficient analysis.34

The Attorney General's opinion here clearly falls into the latter category. The opinion poses questions which were never asked by the Senator requesting the opinion, and strays well beyond the legislative scheme provided for in the Corporations Code. For the reasons discussed below, the opinion

provides no authoritative guidance on the issue of the registration of names of unincorporated associations that happen to use the word "family."

I(b)

The Attorney General's Opinion

The opinion, issued on January 16, 1992,35 begins by revealing that the Attorney General had again rephrased the already revised questions from the original inquiries submitted by Senator Russell, this time adding a substantive issue that had never appeared before in any version of the previous questions: "May the Secretary of State issue a certificate of registration as a 'family' to any two or more individuals who share a common residence?"36 There is no indication of where the "common residence" language came from, and it defies the rule that opinions of the Attorney General are to be issued in response to specific questions posed by legislators.37 One of the questions raised by the Attorney General's continuous process of revising Senator Russell's questions before answering them is whether the purpose of the revisions was to predetermine the outcome of the opinion. In other words, the

constant revisions of the questions give the appearance that the Attorney General had an opinion he wanted to express and needed a vehicle to express it. In the final analysis, the

-------------------------------END PAGE 36---------------------------------

outcome of the opinion seems to hinge largely on the introduction of extraneous issues such as the sharing of a common

residence.

In reaching its conclusion that the Secretary of State may not issue a certificate of registration as a "family" to persons who share a common residence, the opinion first answers still another unasked question: whether two or more persons who share a common residence would constitute a family.38 It is

unclear why this question is relevant to any legal issue presented. As discussed in more detail below, the statute in question does not confer any rights on those registering the name of their association except the right to use their name exclusively.39 Thus, it is the name, not the nature of the association that is the Secretary's concern.40 Nevertheless, the opinion asserts that the answer to this question is yes, based on dictionary definitions and the early California Supreme Court case of Moore Shipbuilding Corp. v. Industrial Accident Comm.41

After concluding that persons sharing a common residence may constitute a family, the opinion next analyzes the language of the statute, and concludes that families who share a common residence are unlike the other kinds of associations which have been specified in the statute.42 Based on the doctrine of ejusdem generis, the opinion states that the word "other" in the statute must be read as "other such like."43 Under the Attorney General's interpretation of this doctrine, since the Legislature listed some kinds of associations, the use of the words "or any other society, organization or association," was intended to be read restrictively.44 The opinion then notes that the context surrounding section 21301 makes it clear that the purpose of the section is to preclude unfair and deceptive practices by preserving the name, goodwill and reputation of an association against misappropriation and unfair competition.45 Since the Attorney General could discern no social or public policy in preserving a family's name for its exclusive use, the opinion concludes that registration of

family names falls outside the scope of the statute.

Assuming arguendo this were correct, this should have ended the opinion, since it addressed the threshold legal question which had been posed of whether registration of family names is permitted, finding in the negative. But the opinion continues, striking off into an area which not only fails to have any relationship to the questions proposed, but is legally incorrect. The opinion asserts that if families were permitted to register their relationships, registration by "traditional" nuclear families would conflict with the

-------------------------------END PAGE 37---------------------------------

provisions of the Family Law Act, Civil Code section 4000 et seq.46

II

ANALSIS

II(a) The Doctrine Of Ejusdem Generis Is Incorrectly Applied Here

The opinion relies heavily on the doctrine of ejusdem generis, which holds that where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The doctrine is primarily applicable to the interpretation of wills, rather than statutes, as illustrated by the case cited in the opinion, Estate of Stober v. Dieter.47

In cases where it has been used in statutory interpretation, though, the general words used have been very different than those in the Corporations Code. The word "association" is clearly defined in Corporations Code section 21300 subdivision (a):

"'Association' includes any lodge, order, beneficial association, fraternal or beneficial society or association, historical, military, or veterans organization, labor union, foundation, or federation, or any other society, organization or association, or

degree, branch, subordinate lodge, or auxiliary." (emphasis added)48

The statute is inordinately broad in its inclusiveness, and the emphasized language could not be broader. Compare this with the statute at issue in Sears Roebuck  Co. v. San Diego County District Council of Carpenters,49 a case cited by the Attorney General's opinion. In that case, the Supreme Court

used the doctrine of ejusdem generis to limit the words "conduct that is unlawful" as used in the Moscone Act.50 The provision at issue provided:

"It is not the intent of this section to permit conduct that is unlawful including breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises where a labor dispute exists, or other similar unlawful activity"51

-------------------------------END PAGE 38---------------------------------

The court found that the rather inclusive phrase "conduct that is unlawful" was restricted by other limiting terminology in the statute itself.52 By its own terms, the statute required that the prohibited unlawful activity be "similar" to the examples cited therein. Furthermore, the phrase "conduct that is

unlawful" is vastly distinguishable from the words at issue here, "any other society, organization or association," since it is not, by its own terms, open-ended, as is the case with the language in the Corporations Code.

The same is true in Scally v. Pacific Gas  Electric Co.,53 where the court held that an electric transmission line was not "any other device which may kindle a fire," as set out in Public Resources Code section 4161.5.54 That section provided that "If any fire originates from the operation or use of any engine, machine, barbecue, incinerator, railroad rolling stock, chimney, or any other device which may kindle a fire. . . " then the occurrence of the fire is prima facie evidence of negligence.55 As in Sears Roebuck, the general words were, themselves, limited in their scope.

Further, in both Sears Roebuck and Scally, the enumerating lists were reasonably susceptible of limitation. The list in Sears Roebuck enumerated breach of the peace, disorderly conduct and the unlawful blocking of access or egress to premises where a labor dispute exists. As the court noted, these all either involve violence or would substantially impair the rights of others.56 Thus, construing the phrase "conduct that is unlawful" to include nonviolent and nonthreatening conduct would have gone beyond the factors the enumerated items had in common. And in Scally, the court was careful to

point out that the particular things mentioned in the statute had common characteristics that electric transmission lines do not have: they all constituted fire hazards in their ordinary use, which was not true of electric transmission lines.57

In the present case, though, there is little, if anything, that the enumerated associations have in common, and the Attorney General's opinion makes no effort to find a common denominator. Rather, the opinion proceeds from the opposite direction, starting with an association it wishes to exclude, and then trying to find a factor, such as common residence, that it then finds lacking in the enumerated associations.

But the language of the statute resists such an analysis. A labor union, a historical society, a Moose Lodge, a fan club, and a federation of the descendants of Martin Luther King constitutes as broad a range of groups as could be imagined. And what is to distinguish the last group if it chooses to denominate itself a family rather than a federation? The terms of the statute require the Secretary to

-------------------------------END PAGE 39---------------------------------

make no such distinction. As discussed more fully in section III below, the distinguishing factor could be whether the family decided to live together--the answered but unasked question in this opinion. But the statute does not require the Secretary to inquire into the domestic arrangements of a registering association--whether a family or not. Thus, it appears the only way the Attorney General's opinion could conceivably reach the conclusion excluding registration of family associations was to read into the statute a legislative intent to distinguish domestic or residential associations from all others.

II(b)

Fundamental Rules Of Statutory Construction Require Relying On The Statute's Language

To Determine Legislative Intent

In fact, there is no need to use extrinsic rules of construction such as the doctrine of ejusdem generis if there is no ambiguity in the statute, itself, and here there is none. In determining legislative intent, a court first looks to the language of the statute, giving effect to its plain meaning.58 Words in a statute are to be given their ordinary meaning, and if they are reasonably free from ambiguity, the

courts will not look beyond them for legislative intent.59

When interpreting statutes, it is impermissible "to impute a particular intention to the legislature when nothing in the language employed implies such an intention."60 "If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. Certainly the court is not at liberty to seek hidden meanings not suggested by the statute..."61 The Attorney General's opinion leaps over these first principles. It ignores the plain meaning of the statutes in question, reading words and intention

into them that are absent, thus creating an artificial need to apply secondary interpretative tools.

The intent of the Legislature with respect to the registration of associational names could not have been expressed any more clearly. Corporations Code Section 21301 declares that "Any association" whose purposes are not repugnant to state or federal laws may register its name or insignia with the Secretary of State.62 In the process of judicial construction, words should be given the meaning they

bear in ordinary use.63 The word "any" means without limit and no matter what kind.64 To limit the scope of the statute, the Attorney General's opinion ignores the Legislature's use of this broad terminology in both relevant statutes. Sections

-------------------------------END PAGE 40---------------------------------

21300, 21301.65

To read the words "any other" to mean "other such like," as suggested by the Attorney General's opinion, would thwart legislative intent by limiting the kinds of associations which could register their names. This is in direct opposition to the clear language used by the Legislature, which explicitly places no restrictions on the kind of associations which may choose to register.

The language in section 21300,66 should be compared to the language used in Business and Professions Code section 14492,67 which enumerates a nearly identical list of associations, albeit for- profit organizations, that may register their names with the Secretary of State. In this context, the list

includes:

". . . any lodge, order, beneficial association, fraternal or beneficial society or association, historical, military, or veterans organization, labor union, or any other similar society, organization or association, or degree, branch, subordinate lodge, or

auxiliary thereof." (emphasis added)68

The list is virtually identical to that used in the Corporations Code with the exception that the Legislature limited the authorization to register to other organizations "similar" to those enumerated. Thus, it is clear that when the Legislature intends to limit the word "any" to mean any "similar"

organization it says so in plain language. Possibly the Attorney General's opinion may have reached a different conclusion had it taken note of Business and Professions Code Section 14492.69

The language of the Business and Professions Code with respect to for-profit associations uses the very word the Attorney General asserts here should exist in the Corporations Code. The Legislature's choice to use a broader phrase in the Corporations Code with respect to nonprofit associations makes it plain that the Legislature did not intend the word "other" to mean "other similar" or "other such like" organizations in connection with nonprofit associations. Such a reading would defeat the plain meaning of the words the Legislature did use.

Corporations Code Section 24000 provides another example of methods used by the Legislature when it wants to limit the use of the term "any" in connection with unincorporated associations.70 There, the statute says "unincorporated association" means "any partnership or other unincorporated organization of two or more persons, whether organized for profit or not, but does not include a government or governmental subdivision or agency." (emphasis added)71

-------------------------------END PAGE 41---------------------------------

Section 21300(a) uses other broad language in its definition of "association."72 It states that "[a]ssociation includes any . . . or any other society, organization, or association..." (emphasis added) The term "includes" is ordinarily a word of enlargement and not of limitation.73 The Attorney General's

opinion overlooks this point.

Inclusive language is also used in Section 21000 which defines the term "nonprofit association," also cited by the Attorney General:

"A nonprofit association is an unincorporated association of natural persons for religious, scientific, social, literary, educational, recreational, benevolent, or other purpose not that of pecuniary profit." (emphasis added)74

The registration procedure appears in Part 2 of the Corporations Code governing such nonprofit associations, and it is again clear that the primary concern is not with the form of such associations, nor is there any indication regarding domestic arrangements. Rather, the concern is with the fact that

the association not be formed for pecuniary profit, a factor clearly evident in family associations not formed for business purposes.

Under the ordinary rules of statutory construction, each section is to be read in pari materia with the other relevant sections and construed as one cohesive law.75 Taken together, the provisions of section 21000, 21300 (a) (Association "includes any" lodge, order, etc., "or any other society, organization or association") and 21301 ("Any association" not repugnant to law may register its name or insignia) demonstrate a cohesive and consistent intent to permit a non-exclusive array of non- business associations to register their names.76

And even assuming an attempt to limit the phrase "or other purpose" in section 21000 to "or other similar purpose," it should be beyond dispute that family associations, whether they are "traditional" or "nontraditional" are formed of natural persons for social, educational and other benevolent purposes (including religious ones), and that these purposes fall squarely within the stated definition.77

The words used are, without exception broad. The list of associations "includes any lodge, order, beneficial association, fraternal or beneficial society or association, historical, military, or veterans organization, labor union, foundation, or federation, or any other society, organization or association, or degree, branch, subordinate lodge, or auxiliary."78 Nonprofit associations are formed "of natural persons for religious, scientific, social,

-------------------------------END PAGE 42---------------------------------

literary, educational, recreational, benevolent, or other purpose not that of pecuniary profit."79 "Any association, the principles and activities of which are not repugnant to the Constitution or laws of the United States or of this State" may register its name.80

Therefore, since the words used in the code are consistently broad and inclusive, and since the Secretary's authority to question registration is explicitly limited to two circumstances (associations which are repugnant to law, and associational names that are deceptively similar to already registered names), the legislative intent was to allow, rather than prohibit the registration of the names of any kind of unincorporated nonbusiness association. There is no reason in the statute to conclude that family associations may not register their names with the Secretary of State.

II(c)

The Family Law Act Is Irrelevant To Any Issue Related to the

Registration of Associational Names

After determining that the Legislature did not intend to permit the registration of family associations, the opinion continues by examining what it believes to be a conflict between such registration and the provisions of the Family Law Act, Civil Code section 4000 et seq.81 According to the opinion, since "traditional" families are covered by the Family Law Act, permitting family registration would create a conflict with that act.

This is initially wrong as a matter of law. Section 21301 provides for nothing more than the registration of names, a provision which occurs nowhere in the Family Law Act.82 Therefore, there is no statutory conflict at all. And it is beyond question that registration with the Secretary of State confers

no substantive legal rights on the association beyond the right to prevent unauthorized use of the association's name. The Legislative Counsel's analysis made this abundantly clear.

The Family Law Act is designed to provide and protect the substantive rights of certain clearly defined family relationships, and only those relationships. The Corporations Code section at issue provides no substantive rights except the right to exclusive use of a name. et the Attorney General's

opinion indulges in a parade of horribles, enumerating the substantive provisions of the Family Law Act respecting earnings and community property, dissolution, liability for debts, etc. that could come into conflict if families could register their names. But if the relevant sections of the Corporations Code provide no substantive rights except the right to use a name, a conclusion by the Legislative Counsel

-------------------------------END PAGE 43---------------------------------

which has never been questioned, it is unclear what conflict would arise with the Family Law Act.

It is unquestioned that spouses and/or their adult children can form corporations for profit, nonprofit corporations, general and limited partnerships and joint ventures. The Attorney General's opinion ignores this reality and fails to explain why unincorporated associations should be treated any

differently. If the Attorney General's opinion on the registration of family associations were to prevail on the theory of statutory conflict, then family members would not be allowed to form these other types of organizations because the laws governing their operations and dissolution are different than the Family Law Act.

Moreover, even if there were such a conflicting provision in the Family Law Act permitting the registration of family names, it would only conflict for those families which come under the provisions of that act. The Legislative Counsel made it plain that the Family Law Act would not apply to many families who would register their family associations. Therefore, there would be no conflict if two siblings, an aunt and nephew, grandparents and grandchildren, or other extended family members registered the name of a family association, since none of these relationship come within the provisions of the Family Law Act.

III THE CONCERNS EXPRESSED IN THE OPINION,

AND THE EVENTS LEADING TO IT, DEMONSTRATE THAT THE QUESTIONS ADDRESSED

HAVE LITTLE TO DO WITH THE LEGAL ASPECTS OF THIS INQUIR

It should be clear from the number of irrelevant questions posed and then answered in the opinion, and the nature of the perceived problems, that the opinion is concerned with far more than the single legal issue being presented of whether the Secretary of State has the authority to issue registration certificates to family associations who decide to register their own chosen family names and insignias. A brief examination of these concerns casts some light on the reason this procedure is being challenged in the first place.

Many of these extra-legal concerns can be traced back to the correspondence which initiated this challenge, from Senator Newton Russell to the Legislative Counsel, dated January 17, 1991.83 Senator Russell expressed concern that those registering their family names with the Secretary of State by using the provisions of Corporations Code section 21301,84 were doing so "in order to gain a perceived status of a family through the color of law."85 This concern goes, not to

-------------------------------END PAGE 44---------------------------------

the provisions of the Corporations Code, but to the motives of those who register, an inquiry nowhere mentioned in the Code. A second concern was that registration might somehow subject the state to "lawsuits and liability." While potential lawsuits did present a question which needed to be addressed, the question of whether two or more people choose to designate themselves as a family and then register their name has nothing to do with such potential liability.

The Secretary's concern under the statute is whether the names being registered are deceptively similar to already registered names, or whether the associations are repugnant to the law. Corp. Code Sections 21301-02.86 The California Supreme Court has long held that the decision to live in a nontraditional

family is protected under the California Constitution, and that such decisions, far from being "repugnant" to California law are embraced by and protected under it.87 Therefore, the only legal question was whether the statute permitting registration placed any limitations on those who choose to register, or would impose any liability on the State.

As discussed above, the statute uses language that is as open-ended as is possible. The language contemplates virtually no limitations on the kinds of associations that may register their names. Of all of these potential associations, though, it is only with regard to associations which call themselves families that Senator Russell has become concerned. The statute does not require the Secretary of State to investigate the choice of any group of natural persons to register the name of their association with her office. As a matter of legal duty, the Secretary is required to remain indifferent under the statute, whether the registering association styles itself The Benevolent Order to

Preserve Ball Point Pens, The Elvis Presley Is Alive Club, or the Society of Cork Collectors.

In his letter requesting the Legislative Counsel's analysis, Senator Russell formulated ten questions for the Legislative Counsel to answer based on the State's potential liability and the potential legal rights of registered families. Although it only answered three of Senator Russell's questions, the bottom line answer was that family associations could not register their names if they included the term "family" or a surname in the title of the associational name because surnames and the word "family" are of common usage, and words of common usage are not property that can be registered.

The Legislative Counsel's conclusion that registration is improper, however, does not follow from the Legislative Counsel's analysis. The only potential violation of law was the assertion that since the word "family" is in common usage, the Secretary of State could not register associations using the

-------------------------------END PAGE 45---------------------------------

word "family" in their names. This conclusion is plainly wrong. The words "corporation," "association," "organization," and many more are equally within common usage. If anyone were to register their association simply as "Family" or "Association," the Legislative Counsel's analysis would potentially apply.

But when those words are used in combination with other words, such as "The Fraternal Association of Descendants of George Washington Carver," or "The Family of John Doe and Jane Roe," a unique and identifiable name has been created which can be registered. The case cited by the Legislative Counsel makes exactly this point: while words in common usage may not, by themselves, be registered, such common words "may be used . . . in combination with other descriptive words, provided they are not used in combination with such other words or symbols or designs as to render it probable that they would mislead persons possessing ordinary powers of perception."88

As noted, the motive of those registering associations with the Secretary of State is irrelevant to any legal issue. The statute does not require the Secretary to inquire into an association's motivation for registering, or its form. Corporations Code section 21301 provides only:

"Any association, the principles and activities of which are not repugnant to the Constitution or laws of the United States or of this State, may register in the office oF the Secretary of State a facsimile or description of its name or insignia and may by reregistration alter or cancel it."89

The Secretary is mandated to issue registration certificates to those associations which choose to take advantage of this section.90 Absent some indication that the registering association is repugnant to the law, there is only one situation in which the Secretary may refuse registration. Corporations Code

section 21302 codifies the Supreme Court's rule in the American Automobile Association case that the Secretary may not register names that are misleadingly or deceptively similar.91 The legislation contains no other restriction on the Secretary's authority to register names.

Therefore, it appears that the real concern behind this entire effort has been an attempt to prohibit so-called "nontraditional" families from creating any public record of their existence. That is, in fact, all these provisions provide for a public record. Any doubt that this is a driving concern here is resolved in Senator Russell's letter of March 18, 1991, requesting the Attorney General's opinion.92 He

states:

-------------------------------END PAGE 46---------------------------------

"I am writing to request an opinion from the office of the Attorney General on the legality of the practice of the Secretary of State issuing unincorporated nonprofit association registration certificates to individuals who register themselves as 'families' and then use the registration as official evidence of heir 'family' status." (emphasis added)93

The underlined section is plainly unrelated to the legal question of the Secretary's authority. The evidentiary status of a registration certificate is entirely divorced from any legal consideration about the Secretary's legislative mandate to issue the certificates. Senator Russell seems to be spearheading

an effort by a political constituency that is seeking to make sure there is no public record that so- called "nontraditional" families may point to as evidence of their intentions to be a family unit.

It is unchallenged that the existence of a certificate of registration itself creates no automatic rights for association members. There is no question that the state creates no liability for itself by allowing associations to register their names. The only question is whether some associations -- those who associate because of mutual love, affection, support and respect and call themselves families --

can be prevented from registering their names which include the word "family." What they do with such registrations is legally irrelevant in the statute, whether it is a family or a fraternity. The statute provides they may use it to enforce their right to exclusive use of their association's name, but any use beyond that is neither proscribed, encouraged, or anywhere mentioned in the statute.

And again, the linchpin of the Attorney General's opinion on excluding registration of family associations is the fact that the members share a common residence. It should again be stressed that the Attorney General was never asked a question that focused on persons who share a common residence. There is no indication, either in Senator Russell's correspondence to the Attorney General, or in the Attorney General's letter to Thomas F. Coleman of May 14, 1991 that the registering family's domestic arrangements was in any way involved.94 et the opinion relies heavily on whether registering

families live together.

The sudden appearance of this "common residence" factor suggests that it was not the legal issue of registration which concerned the Attorney General, but a much more focused political agenda regarding families. This clearly undermines any authority the opinion may have. Opinions of the

Attorney General are to be issued in response to "specific questions posed by state legislators, officers and agencies" and are not to be issued gratuitously.95 Since the statute uses the broadest and most inclusive language

-------------------------------END PAGE 47---------------------------------

possible, the introduction of this new and unrequired inquiry attempts to place duties on the Secretary of State that are far beyond the authority granted her by the Legislature.

It should also be noted in closing that it is questionable whether the Attorney General should have undertaken this opinion in the first place. In a letter dated April 24, 1991, Anthony Miller, Chief Deputy to the Secretary of State notified the Attorney General's office that the Secretary of State was aware of at least two potential lawsuits regarding the registration procedure, and that in the event either suit was filed, the Secretary of State might require legal representation by the Attorney General.96 Thus, the choice to go ahead with the opinion despite this clear potential conflict of interest presents serious problems regarding the Attorney General's ability to provide competent legal representation to one of its clients, an important state agency. By taking a position on a contested issue regarding the

Secretary of State while aware of threatened litigation against the Secretary's office, the Attorney General decided to abandon its duty to defend state officials in litigated matters. Gov. Code Section 12512.97

February 4, 1992

(Editor's note: Since this article was submitted for publication Secretary of State March Fong Eu has resigned to accept an ambassadorship. The acting Secretary of State is Anthony Miller, Eu's former chief legal counsel. Miller has continued to allow the registration of family associations, and will likely continue to do so while he remains in office. He has received the Democratic nomination for the position and will be up for election this November.

In addition domestic partnership legislation passed the California General Assembly by a slim margin earlier this year. The legislation now must pass the state senate before the legislature adjourns to be sent to the Governor for his signature; the legislation has a fair chance of passing the senate but a much slimmer chance of being signed by Governor Pete Wilson. If the legislation is not enacted into law this termin it will likely be reintroduced next year, particularly if Governor Wilson does not win re-election in November.)

Endnotes 1. The Family Diversity Project is operated by Spectrum Institute, a nonprofit California corporation. Spectrum engages in research and educational activities designed to promote recognition of, and respect for, human diversity, especially in the context of family relationships.

2. Laurie Becklund, The Word "Family" Gains New Meaning, L.A. Times, Dec. 13, 1990, at A3; Tupper Hall, State Lets Gay Couples Register, S.F. Examiner (National Ed.) , Dec. 15, 1990, at ___;

-------------------------------END PAGE 48---------------------------------

Tamar Lewin, Nontraditional Families Register in California in Bid to Get Benefits, N.. Times, Dec. 17, 1990, at A15; Elizabeth Groat, Unmarried Couples Use Law to Put Relationships on Record, L.A. Daily J. (AP Release), Dec. 19, 1990, at ___; Lynn Smith, Not Kin But Kindred, Pair Will Put Official Seal on Their Status, L.A. Times (Orange County Ed.), Dec. 25, 1990, at B1.

3. Over the course of about two months, beginning in January 1991, the Secretary of State received about 1,000 letters of protest insisting that she stop the registration of the names of family associations. The letter-writing campaign was orchestrated by a national religious group known as "Focus on the Family." The group has a daily radio audience through hundreds of religiously-

4. Cal. Corp. Code 21000 (West 1992); Senate Bill 192, introduced on Jan. 17, 1991, see Appendix A.

5. Letter from state Senator Newton Russell to state Legislative Counsel Bion Gregory (Jan. 17, 1991). The Western Center for Law and Religious Freedom had a hand in drafting this letter. (See letter from the Western Center for Law  Religious Freedom to state Secretary of State March Fong Eu (Mar. 4, 1991).), see Appendix B.

6. Legislative Counsel's Opinion No. 2151, Family Association (Feb. 19, 1992), see Appendix C.

7.Law v. Crist, 41 Cal. App. 2d 862, 865, 107 P.2d 953 (1940).

8. Legislative Counsel's Opinion No. 2151, Family Association, at 3 (Feb. 19, 1992), see Appendix C.

9. Id. at 7.

10. Cal. Corp. Code 21301 (West 1992).

11. Legislative Counsel's Opinion No. 2151, Family Association, at 1 (Feb. 19, 1992), see Appendix C.

12. Letter from Senator Newton Russell to Secretary of State March Fong Eu (Feb. 20, 1991), see Appendix D.

13. Bill Geiger, 'Family Bill of Rights' Targets Pro-Gay Legislation, Frontiers, Mar. 15, 1991, at ___, see Appendix E.

14. Michael Bowman, Family Congress: Uniting of the Pro-Family Movement, Cal. Citizen, Apr. 1991, at 1, see Appendix F.

15. The Family Diversity Project called the Attorney General's press secretary and asked for a copy of the Attorney General's remarks. The project was informed that neither a verbatim transcript nor a summary were available.

16. Letter from Western Center for Law  Religious Freedom to Secretary of State March Fong Eu (Mar. 4, 1991), see Appendix G.

-------------------------------END PAGE 49---------------------------------

17. J.P.Tremblay, State Will Continue to Recognize Homosexual "Families", Sacramento Union, Mar. 12, 1991, at ___.

18. Letter from Secretary of State March Fong Eu to Senator Newton Russell (Mar. 11, 1991), see Appendix H.

19. Cal. Corp. Code 21301 (West 1992).

20. Letter from Secretary of State March Fong Eu to Senator Newton Russell (Mar. 11, 1991), see Appendix H.

21. Id.

22. Id.

23. Letter from Senator Newton Russell to state Attorney General Daniel Lungren (Mar. 18, 1991), see Appendix I.

24. Letter from state Chief Deputy Secretary of State Anthony Miller to state Assistant Attorney General Nelson Kempsky (Apr. 24, 1991). In addition to the threat of a lawsuit by the Western Center, as reported in the Sacramento Union, ______________, the Secretary of State advised the Attorney General that it was likely that a lawsuit might be initiated by the ACLU or even by the Secretary of State herself. The Attorney General was advised that the Secretary of State might request the Attorney General to provide legal representation should such a lawsuit occur. In previous administrations, these manifestations of potential lawsuits would have been more than sufficient reason for the Attorney General to decline to render an opinion on a subject that would lie at the heart of such litigation.

25. Letter from Assistant Attorney General Nelson Kempsky to attorney Thomas F. Coleman (May 14, 1991), see Appendix J.

26. 75 Ops. Cal. Att~y Gen. 1 (1992), see Appendix K.

27. Id. at 1.

28. Letter from Senator Newton Russell to Attorney General Daniel Lungren (Mar. 18, 1991), see Appendix I.

29. It is also noteworthy that the Attorney General's opinion does not acknowledge the existence of opinions of the Legislative Counsel or the Secretary of State on the same subject. It does not adopt the approach or reasoning of the Legislative Counsel. Nor does it address or attempt to demonstrate how the Secretary of State may have erred in her analysis.

30. Judson Steel Corp. v. Workers' Comp. Appeals Bd., 22 Cal. 3d 658, 668, 586 P.2d 564, 570,150 Cal. Rptr. 250, 256 (1978) (quoting Bodison Mfg. Co. v. California E.Com., 17 Cal. 2d 321, 325-26, 109 P.2d 935, 939 (1941)); City of Fremont v. Bd. of Admin., 214 Cal. App.3d 1026, 1033, 263 Cal. Rptr. 164, 168 (1989); California Ass'n of Dispensing Opticians v. Pearle Vision Center, Inc., 143 Cal. App. 3d 419, 428, 191 Cal. Rptr. 762, 769

-------------------------------END PAGE 50---------------------------------

(1983).

31. Unger v. Superior Court, 102 Cal. App. 3d 681, 688, 162 Cal. Rptr. 611, 615 (1980) (citing Smith v. Municipal Court, 167 Cal. App. 2d 534, 539, 334 P.2d 931, 935 (1959)).

32. Jimmy Swaggart Ministries v. State Bd. of Equalization, 204 Cal. App. 3d 1269, 1285 n.14, 250 Cal. Rptr. 891, 902 (1988); People v. Vallerga, 67 Cal. App. 3d 847, 870, 136 Cal. Rptr. 429, 441 (1977).

33. Jimmy Swaggart Ministries, 204 Cal. App. 3d at 1285, n.14, 250 Cal. Rptr. at 902.

34. People v. Woodhead, 43 Cal.3d 1002, 1013, 741 P.2d 154, 160, 239 Cal. Rptr. 656, 662 (1987).

35. 75 Ops. Cal. Att~y Gen. 1 (1992), see Appendix K.

36. 92 Daily Journal D.A.R. 992 (Jan. 23, 1992); Id. at 2.

37. Jimmy Swaggart Ministries, 204 Cal. App. 3d at 1285 n.14, 250 Cal. Rptr. at 902.

38. 75 Ops. Cal. Att~y Gen. 1, 2 (1992), see Appendix K.

39. Cal. Corp. Code 21301, infra p. 13.

40. In her correspondence to Senator Russell on March 11, 1991, Secretary of State March Fong Eu made it clear that her office does not register families or issue certificates of name registration to families, as such, but merely implements a ministerial duty by issuing a certificate of name registration to any unincorporated association. The fact that the association's name happens to include the term "family" and one or more surnames is irrelevant to her statutory duty. She emphasized that the Legislature has provided for the registration of the names of any unincorporated association.

41. 185 Cal. 200, 207 (1921); 75 Ops. Cal. Att~y Gen. 1, 4 (1992), see Appendix K.

42. 75 Ops. Cal. Att'y Gen. at 2-3 (1992), see Appendix K.

43. Id. at 6.

44. Id. at 4.

45. Id. at 7-8.

46. Id. at 8-9; Cal. Civ. Code 4000 (West 1992).

47. 108 Cal. App. 3d 591, 599, 166 Cal. Rptr. 628, 632 (1980).

48. Cal. Corp. Code 21300 (West 1992).

49. 25 Cal. 3d 317, 330-331, 599 P.2d 676, 686,158 Cal. Rptr.

-------------------------------END PAGE 51---------------------------------

370, 379 (1979).

50. Cal. Civ. Proc. Code 527.3 (West 1992).

51. Sears Roebuck, 25 Cal. App. 3d at 331, 599 P.2d at 686,158 Cal. Rptr. at 380.

52. Id.

53. 23 Cal. App. 3d 806, 100 Cal. Rptr. 501 (1972).

54. Cal. Pub. Res. Code 4161.5 (West 1992).

55. Scally, at 818-819, 100 Cal. Rptr. at 509.

56. Sears Roebuck, 25 Cal. App. 3d at 331, 599 P.2d at 686, 158 Cal. Rptr. at 380.

57. Scally, 23 Cal. App. 3d at 819, 100 Cal. Rptr. at 509-10.

58. Kimmel v. Goland, 51 Cal. 3d 202, 208-209, 793 P.2d 524, 527, 271 Cal. Rptr. 191, 194 (1990) quoting Tierman v. Trustees of Cal. State Univ.  Colleges, 33 Cal. 3d 211, 218-19, 655 P.2d 317, ___, 188 Cal.Rptr. 155, ___; Hogya v. Superior Court, 75 Cal. App. 3d 122, 132, 142 Cal. Rptr. 325, 332 (1977).

59. People v. Mel Mack Co., 53 Cal. App. 3d 621, 626, 126 Cal. Rptr. 505, 509 (1975).

60. Struckman v. Board of Trustees, 38 Cal. App. 2d 373, 376, 101 P.2d 151, 153 (1940).

61. Hogya v. Superior Court, 75 Cal. App. 3d at 133, 142 Cal.Rptr. at 333 quoting People v. Knowles, 35 Cal. 2d 175, 182- 83, 217 P.2d 1, 5-6 (1950).

62. Cal. Corp. Code 21301 (West 1992).

63. Delaney v. Superior Court, 50 Cal. 3d 785, 798, 789 P.2d 934, 268 Cal.Rptr. 753 (1990).

64. Id.

65. Cal. Corp. Code 21300, 21301 (West 1992).

66. Cal. Corp. Code 21300 (West 1992).

67. Cal. Bus.  Prof. Code 14492 (West 1992).

68. Id.

69. Cal. Corp. Code 21300 (West 1992).

70. Cal. Corp. Code 24000 (West 1992).

71. Id.

-------------------------------END PAGE 52---------------------------------

72. Cal. Corp. Code 21300 (West 1992).

73. People v. Horner, 9 Cal. App. 3d 23, 27, 87 Cal. Rptr. 917, 920 (1970).

Cal. Corp. Code 21000 (West 1992).

75. Isobe v. Unemployment Ins. Appeals Bd., 12 Cal. 3d 584, 590- 91, 526 P.2d 528, 532, 116 Cal. Rptr. 376, 380 (1974); Kendall- Brief Co. v. Superior Court, 60 Cal. App. 3d 462, 466, 131 Cal. Rptr. 515, 517-18 (1976).

76. Cal. Corp. Code 21000, 21300, 21301 (West 1992).

77. Cal. Corp. Code 21000 (West 1992).

78. Cal. Corp. Code 21300 (West 1992).

79. Cal. Corp. Code 21000 (West 1992).

80. Cal. Corp. Code 21300 (West 1992).

81. Cal. Civ. Code 4000 (West 1992).

82. Id.; Cal. Corp. Code 21301 (West 1992).

83. Letter from Senator Newton Russell to Legislative Counsel Bion Gregory (Jan. 17, 1991), see Appendix B.

84. Cal. Corp. Code 21301 (West 1992).

85. Letter from Senator Newton Russell to Legislative Counsel Bion Gregory (Jan. 17, 1991), see Appendix B.

86. Cal. Corp. Code 21301, 21302 (West 1992).

87. City of Santa Barbara v. Adamson, 27 Cal. 3d 123, ___, 610 P.2d 436, ___, 164 Cal. Rptr. 539, ___ (1980).

88. American Automobile Assoc. v. American Automobile Owners Assoc., 216 Cal. 125, 131 (1932); Cebu Assoc. of California, Inc. v. Santa Nino de Cebu Assoc. of U.S.A., 95 Cal. App. 3d 129, 13 P.2d 707, 157 Cal. Rptr. 102 (1979) (while a court cannot enjoin use of the single word "Cebu," it may properly enjoin the use of composite and distinct phrases using the word "Cebu").

89. Cal. Corp. Code 21301 (West 1992).

90.Cal. Corp. Code 21305 (West 1992).

91. Cal. Corp. Code 21302 (West 1992).

92. Letter from Senator Newton Russell to Attorney General Daniel Lungren (Mar. 18, 1991), see Appendix I.

93. Id.

-------------------------------END PAGE 53---------------------------------

94. Letter from Assistant Attorney General Nelson Kempsky to attorney Thomas F. Coleman (May 14, 1991), see Appendix J on file with J.L. Gender  Sex. Orient.

95. Jimmy Swaggart Ministries v. State Bd. of Equalization, 204 Cal. App. 3d at 1285 n.14, 250 Cal. Rptr. at 902.

96. Letter from Chief Counsel to the Secretary of State Anthony Miller to Attorney General Daniel Lungren (Apr. 24, 1991).

97. Cal. Gov. Code 12512 (West 1992).

APPENDICES Appendix A

Display 1991-1992 Bill Text - INFORMATION BILL NUMBER: SB 192

BILL TEXT

INTRODUCED B Senator Russell

January 17, 1991

An act to amend Section 21300 of the Corporations Code, relating to nonprofit associations.

LEGISLATIVE COUNSEL'S DIGEST

SB 192, as introduced, Russell. Nonprofit associations.

Existing law provides that any association whose principles and activities are not repugnant to the Constitution or laws of the United States or this State, may register a facsimile or description of its name or insignia with the Secretary of State. For purposes of this law, "association" includes any Lodge, order, beneficial association, fraternal or beneficial society or association, historical, military, or veterans organization, labor union, foundation, or federation, or any other society, organization, or association, or degree, branch, subordinate lodge, or auxiliary thereof.

This bill would provide that "association" includes, but is not limited to, the above listed entities.l

Vote: majority. Appropriation: no. Fiscal committee: no.

State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 21300 of the Corporations Code is -------------------------------END PAGE 54---------------------------------

amended to read: 21300. As used in this chapter, the following terms have the meanings set forth in this section, unless the context otherwise requires:

(a) "Association" includes shall include, but is not limited to, any Lodge, order, beneficial association, fraternal or beneficial society or association, historical, military, or veterans organization, labor union, foundation, or federation, or any other society, organization, or association, or degree, branch, subordinate lodge, or auxiliary thereof.

(b) "Insignia" includes badge, motto, button, decoration, charm, emblem, or rosette. Appendix B

CALIFORNIA STATE SENATE

January 17, 1991

TO: Bion Gregory

FROM: Senator Newton Russell

RE: Registration of Family Associations under Corporation

Code Section 21301

Pursuant to Corporation Code section 21301, 21302 and 21305, the Secretary of State, upon the filing of a properly completed application and the payment of the applicable fees, may register the name of any unincorporated nonprofit association and issue a certificate of registration to that effect, provided that the name does not so resemble another registered name as may be likely to deceive.

The Secretary of State has issued a "Certificate of Registration of Unincorporated Nonprofit Association" to Rebecca A. Tapia and Jennifer L. Baughman registered as Fraternal Name No. 4309 and listed their association by using the words "FAMIL OF REBECCA A. TAPIA AND JENNIFER L. BAUGHMAN". A similar certificate has been issued by the Secretary of State to Thomas F. Coleman and Michael A. Vasquez registered as Fraternal Name No. 4302 and listed their association by using the words "FAMIL OF THOMAS F. COLEMAN AND MICHAEL A. VASQUEZ".

These people have registered as the "FAMIL OF ______" in order to gain a perceived status of a family through the color of law. See the memorandum prepared by Thomas F. Coleman and presented to Secretary of State March Fong Eu and attached herewith at (page 7, footnote 28).

I am concerned that this may be an improper use of the above code sections and may subject the State of California to potential lawsuits and liability. Therefore, I am requesting a Legislative Counsel's opinion based on the following issues and questions which raise serious doubt and legal question as to the validity of the above-described practice:

(1) Whether the State of California may incur potential

-------------------------------END PAGE 55---------------------------------

liability to people who register as an unincorporated nonprofit association "FAMIL" for the unintended legal consequences of their registration, for failure to inform these people of the potential legal consequences of the formation of an unincorporated nonprofit association "FAMIL" since unincorporated nonprofit associations operate under laws that are distinctly different from the laws that govern typical family relationships?

(2) Whether people who register as an unincorporated nonprofit association "FAMIL" must be informed by the state of California concerning the implications of acting under unincorporated nonprofit association law? Indeed, how will members of the "FAMIL" know when they are acting as individuals or when they are acting as an unincorporated nonprofit association? Will this be an additional issue to be litigated in unincorporated nonprofit association "FAMIL" dissolutions?

(3) Whether the use of the unincorporated nonprofit association registration to register otherwise unrelated people as a "FAMIL" is consistent with the statutory authority of Corporation Code section 21300 et seq. or whether it intrudes upon areas governed by other law such as partnership law, family law, including the law of marriage, and criminal law?

(4) Whether the statute as applied would open the law to permit (a) two men and a woman or (b) two women and a man or (c) a single man or woman and a unrelated minor boy or girl, or (d) a single parent and minor child or (e) a polygamous relationship or (f) a palimony relationship or (g) a "group marriage" relationship (such as the "Manson Family") or (h) a homosexual relationship or (i) any other combination to register as a "family"?

(5) Whether all members of a registered unincorporated nonprofit association "FAMIL" are liable for tortious conduct of other members of the "FAMIL" when acting under unincorporated nonprofit association law?

(6) Whether all members of a registered unincorporated nonprofit association "FAMIL" are liable for contractual obligations and or damages incurred by other members of the "FAMIL" when acting under unincorporated nonprofit association law?

(7) Whether property owned in the name of a registered unincorporated nonprofit association "FAMIL" will pass to the members of the "FAMIL" by intestate succession (or otherwise by inheritance) or whether it will escheat to the state as the property of a defunct unincorporated nonprofit association? Can such property be probated?

(8) Whether registration as an unincorporated nonprofit association "FAMIL" will have the effect of waiving the statutory protections of parents for financial liability for the acts of their minor children?

-------------------------------END PAGE 56---------------------------------

(9) Whether the use of unincorporated nonprofit association law affects the legal obligations of an unincorporated nonprofit association "FAMIL" in other ways?

(10) Whether there are in fact no legal consequences, benefits or obligations resulting to people who register as an unincorporated nonprofit association "FAMIL" or whether there exist substantial legal consequences to property rights, legal liability in general or other legal considerations? (The Coleman memorandum asserts that there are no legal consequences.) Appendix C

LEGISLATIVE COUNSEL OF CALIFORNIA

Bion M. Gregory

Sacramento, CA February 19, 1991

Honorable Newton R. Russell 5061 State Capitol

Family Associations - #2151

Dear Senator Russell:

QUESTION NO. 1

Are a group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family entitled to register the name of their "association" with the Secretary of State under Section 21301 of the Corporations Code under a style such as "Family of John Doe and Jane Roe."

OPINION NO. 1

A group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family are not entitled to register the name of their "association" with the Secretary of State under Section 21301 of the Corporations Code under a style such as "Family of John Doe and Jane Roe"?

ANALSIS NO. 1

Section 21301 of the Corporations Code provides for the registration of associations, as follows:

"21301. Any association, the principles and activities

of which are not repugnant to the Constitution or laws of the United States or of this State, may register in

the office of the Secretary of State a facsimile or description of its name or insignia and may by

reregistration alter or cancel it."

Upon registration, the Secretary of State issues a -------------------------------END PAGE 57---------------------------------

certificate of registration. Section 21307 of the Corporations Code then prohibits any unauthorized person from using the association's registered name, as follows:

"21307. Any person who willfully wears, exhibits, or

uses for any purpose a name or insignia registered under this chapter, unless he is entitled to use, wear,

or exhibit the name or insignia under the constitution, bylaws, or rules of the association which registered

it, is guilty of a misdemeanor punishable by fine of not to exceed two hundred dollars ($200) or by

imprisonment in the county jail for a period not to exceed 60 days."

Thus, registration under Section 21301 creates an exclusive right to use a name or insignia. An exclusive right to use a name cannot be granted to words in common use since those words are regarded by the law as common property (American Assn. v. Automobile O. Assn., 216 Cal. 125, 131). Similarly, a family name cannot be the subject of an exclusive right so as to prohibit another from using his or her name (Tomsky v. Clark, 73 Cal. App. 412, 418).

The registration of an association under a name such as "Family of John Doe and Jane Roe" would give that association an exclusive right to use that name and would prohibit others from using that name, under threat of criminal penalty (Sec. 21307, Corp. C.). Similar names, such as "The Doe Family" could be appropriated, and other "Doe Families" would thereafter be prohibited from using that name, even, arguably, in such cases as on holiday cards. These problems arise from the fact that "family" is a word in common use, and therefore cannot be made a title subject to the exclusive use of another. The association of it with a surname does not help since a family name cannot be the subject of an exclusive right-to-use. Thus, under Section 21301, the registration of such a name would be repugnant to the laws of the state that permit people to use common words and family names without restriction.

We do not imply that an association cannot be formed for that purpose in appropriate cases. However, no formalities are required for the formation of an unincorporated nonprofit association (Law v. Crist, 41 Cal. App. 2d 862, 865). The only purpose of registration is protection of the registered name.

Accordingly, it is our opinion that a group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family are not entitled to register the name of their "association" with the Secretary of State under Section 21301 of the Corporations Code under a style such as "Family of John Doe and Jane Roe."

QUESTION NO. 2

May a group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family form an association to formalize

-------------------------------END PAGE 58---------------------------------

that relationship?

OPINION NO. 2

A group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family may form a nonprofit association to formalize that relationship. However, many rights traditionally granted to family members may be unavailable if based solely on the association.

ANALSIS NO. 2

A nonprofit association is defined by Section 21000 of the Corporations Code, as follows:

"21000. A nonprofit association is an unincorporated

association of natural persons for religious, scientific, social, literary, educational,

recreational, benevolent, or other purpose not that of pecuniary profit."

The rights and duties of members of an association are basically determined by the contract of the association, such as its constitution of bylaws, although the agreement of association need not be formal or in writing (Law v. Crist, supra, at 865). In essence, the agreement to associate is contractual and the rights under it are contractual (Lawson v. Hewell, 118 Cal. 613, 618-619).

Accordingly, a group of people may obtain rights similar to that of a family by forming an association if those rights may be obtained by contract.

However, in determining what those rights are, it must be borne in mind that "family" is not a word of precise legal meaning. It may refer to spouses, it may refer to parents and children, it may refer to siblings, it may refer to a combination of these relationships, or it may refer to even more extended relationships. Indeed, in Moore S. Corp. v. Industrial Acc. Com, 185 Cal. 200, at 207, the court stated as follows:

"There is little to be gained by reviewing the numerous

definitions given by the courts and lexicographers of the words 'family' and 'household'. They mean

different things under different circumstances. The family, for instance, may be an entire group of people

of the same ancestry, whether living together or widely separated; or it may be a particular group of people

related by blood or marriage, or not related at all, who are living together in the intimate and mutual

interdependence of a single home or household."

Since "family" has so many varied meanings, it is difficult to definitively determine the characteristics that would be shared by a "family association." They may vary from association to association, depending on the nature of the "family

-------------------------------END PAGE 59---------------------------------

relationship" that is involved.

However, not all rights inherent in a family relationship could be obtained by forming an association. For example, a contractual relationship between persons living together without marrying is not enforceable under the Family Law Act (Marvin v. Marvin, 18 Cal. 3d 660, 665 and 681). However, at least to the extent that contracts are not based upon an illicit consideration of sexual services, contracts between nonmarital partners will be enforced (Id., at 672). Accordingly, members of an association could contract to pool their earnings in a manner similar to that done by a husband and wife under the community property statutes.

Of course, since the Family Law Act is inapplicable, recourse in the event of a breach of contract would not be under the Family Law Act but would be limited to contractual remedies.

With respect to an association that was formed to have functions similar to a parent and child relationship, it may be that an adult could undertake a duty of support to a child similar to that owed by a parent (Sec. 196, Civ. C.). However, a minor does not usually have the capacity to enter into a contract that cannot be disaffirmed (Sec. 35, Civ. C.). In addition, the relationship of parent and child is subject to very substantial statutory regulation (see, for example, Title 2 (commencing with Sec. 196), Pt. 3, Div. 1, Civ. C.). For example, a change in the parent-child relationship requires compliance with specific requirements (for example, Ch. 2 (commencing with Sec. 221), Title 2, Pt. 3, Div. 1, civ. C. (adoption)). Thus, that aspect of the parent-child relationship could not be established by merely forming an association. Of course, we are not informed of the particular types of rights and duties that are intended to be created by such an association.

However, any of these rights would arise solely because of the contractual relationship of members of the association, and not because they have somehow become spouses (or children and parents) by entering into the association. In Marvin v. Marvin, supra, the court held that the Family Law Act is inapplicable to nonmarital partners, even though a contractual relationship had some of the same characteristics as a marital relationship. Similarly, membership in a "family association" will not, in itself, create a relationship of spouse or parent and child. The law prescribes the prerequisites for these relationships (for example, Sec. 221 and following, Civ. C. (adoption); Title 1 (commencing with Sec. 4000), Pt. 5, Div. 4, Civ. C. (marriage)). In the absence of compliance with requirements applicable to establish a spousal or parent and child relationship, the rights of members of a family association will be limited to those contractual rights established under the association's charter, bylaws, or other governing provisions, and then only to the extent not prohibited by law.

Thus, for example, members of the association may leave property to other members in their wills. However, in the absence of such an intentional disposition, membership in the association will not establish a right of property under the laws

-------------------------------END PAGE 60---------------------------------

governing intestate succession (Pt. 2 (commencing with Sec. 6400), Div. 6, Prob. C.).

So far, we have discussed limits on the ability of a nonprofit association to obtain rights and obligations similar to those present in a traditional family relationship. Conversely, membership in a nonprofit association may impose obligations that are not usually present in a traditional family relationship.

Section 388 of the code of civil Procedure provides as follows:

"388. (a) Any partnership or other unincorporated

association, whether organized for profit or not, may sue and be sued in the name which it has assumed or by

which it is known.

"(b) Any member of the partnership or other unincorporated association may be joined as a party in

an action against the unincorporated association. If service of process is made on such member as an

individual, whether or not he is also served as a person upon whom service is made on behalf of the

unincorporated association, a judgment against him based on his personal liability may be obtained in the

action, whether such liability be joint, joint and several, or several."

Thus, the association can be sued as an association, while spouses, though they may be joined in the same suit on occasions, are not sued in the name of the family.

In addition, members of a nonprofit association are not generally liable for contractual debts of the association unless the member has personally assumed that debt (Secs, 21100 and 21101, Corp. C.). However, members of a nonprofit association may, in some instances, be liable for the tort liability of other members in pursuing the purposes of the association (Steuer v. Phelps, 41 Cal. App. 3d 468, 472). This liability will depend upon the facts, such as whether the individual members authorized the activity that gave rise to the injury (Id.), and whether there were officers or directors to whom liability could be imputed (White v. Cox, 17 Cal. App. 3d 824).

It is a difficult to apply these principles to all possible types of family associations. As stated previously, the nature of family relationships are so varied that it is impossible to find a simple characterization that can be applied to all. In addition, since the nature of an association will necessarily depend upon the terms of the agreement between its members, a "family association" is an entity that may take numerous forms.

Thus, it is our opinion that a group of persons who live together in a relationship in which they share rights and duties similar to those shared by members of a traditional family may form a nonprofit association to formalize that relationship. However, many rights traditionally granted to family members may

-------------------------------END PAGE 61---------------------------------

be unavailable if based solely on the association.

QUESTION NO. 3

Does the state have any potential liability if it does not inform persons who register as an unincorporated nonprofit association with a name that indicates characteristics similar to those of a family of the consequences of forming such an association?

OPINION NO. 3

The state does not have any potential liability if it fails to inform persons who register as an unincorporated nonprofit association with a name that indicates characteristics similar to those of a family of the consequences of forming such an association.

ANALSIS NO. 3

There is not statutory or regulatory requirement that the state inform persons who register as an unincorporated nonprofit association with a name that indicates characteristics similar to those of a family of the consequences of forming such an association.

Since there is no statutory or regulatory duty to inform registrants of potential problems, no liability arises from a failure to discharge a mandatory duty (Sec. 815.6, Gov. C.). Thus, any duty to inform must arise under the common law (see Davidson v. Westminster, 32 Cal. 3d 197, 202).

In the absence of a special relationship, the state is under no duty to warn others of potential hazards that may be caused by other (Tarasoff v. Regents of University of california, 17 Cal. 3d 425, 435; Davidson v. City of Westminster, supra, 203). A special relationship that gives rise to a duty to warn or otherwise exercise care may arise when a public official voluntarily assumes a duty to exercise care, when there is an express or implied promise to exercise care, or when the official created or increased the peril to the victim (Jackson v. Clements, 146 cal. App. 3d 983, 988) and the peril was not readily foreseeable by the victim (Johnson v. State of California, 69 Cal. 2d. 782, 786).

In the case of the registration of an association's name, there is no voluntary assumption of a duty to protect a victim or an express or implied promise to care for a victim. Accordingly, any duty to inform or warn must be based on the creation or aggravation of a risk that is not reasonably foreseeable by a victim. However, the registration of the name of the association does not create the association but only registers its name. Thus, the registration does not create or increase the peril. It is the creation of the association by its members that creates the peril, if any, not the registration of the association's name.

-------------------------------END PAGE 62---------------------------------

In addition, the state, by registering the name, does not have sufficient information to fully assess the nature of any potential liabilities since the registration does not disclose the terms of association membership. The members of the association are in a far better position to understand the rights and duties that they have imposed on themselves. Thus, the risk of forming the association is more readily foreseeable by members of the association than by the state.

Accordingly, it is our opinion that the state does not have any potential liability if it fails to inform persons who register as an unincorporated nonprofit association with a name that indicates characteristics similar to those of a family of the consequences of forming such an association.

Very truly yours,

Bion M. Gregory

Legislative Counsel

By William K. Stark

Deputy Legislative Counsel Appendix D

California State Senate

NEWTON R. RUSSELL Senator, Twenty-first District

Minority Whip

February 20, 1991

Honorable March Fong Eu Secretary of State Executive office 1230 J Street Sacramento, CA 95814

Dear March:

Upon learning that "Certificates of Registration of Unincorporated Nonprofit Associations" were being issued to individuals registered as "FAMIL OF JOHN DOE AND JANE ROE", I investigated the legality of that procedure. In cooperation with the Western Center on Law and Religious Freedom, I prepared a number of issues which we believed raised serious concerns and possible violations of law. These issues were submitted to Legislative Counsel for analysis and a written opinion. Attached herewith is Legislative Counsel opinion, number 21@l.

-------------------------------END PAGE 63---------------------------------

In response to my request, Legislative Counsel issued in part the following opinion stating:

A group of persons who live together in a relationship

in which they share rights and duties similar to those shared by members of a traditional family are not

entitled to register the name of their "association" with the Secretary of State under Section 21301 of the

Corporations Code under a style such as "'Family of John Doe and Jane Roe."

In your letter of December 20, 1990, you informed me that you were compelled under State law to issues these certificates. The issuance of Certificates as described above have been determined to be in violation of existing California State law and further issuance of these types of certificates should be terminated and those that were issued should be immediately revoked.

Please let me know what action you intend to take.

Sincerely,

Newton R. Russell Senator, 21st District

NRR:mz

Appendix E

"FAMIL BILL OF RIGHTS" TARGETS PRO-GA LEGISLATION In response to a variety of pro-gay measures that will be brought before the California state Legislature this year, conservative forces have launched a referendum campaign aimed at changing the state constitution to exclude all progressive gay-rights legislation.

News of the "Family Bill of Rights," a proposed initiative to the California ballot, was leaked Feb. 22 from a Sacramento conference, where the Family Congress, a new statewide umbrella organization, was holding strategy meetings. The Family Con- gress, which asserts that it will devote years to the struggle if necessary if necessary, has connections to rabid homophobe, the Rev. Lou Sheldon of the Traditional Values Coalition.

"We can't say just how dangerous it is yet, but if they get this 'Family Bill of Rights' on the ballot, it will be a clear case of bigotry by initiative," says Laurie McBride, executive director of the Lobby for Individual Freedom and Equality (LIFE Lobby), California's only gay-rights and AIDS lobbying organization.

It's outrageous that any group believes it has a patent on the definition of the family, and that it has the right to impose its ideology on the majority," McBride says.

"Current demographics show that only 15-22 percent of California families fit their definition. It's an attempt to exclude gay and lesbian relationships from any type of legal recognition, but it also cuts out step-families. Denying any Californian the right to define their own family is repugnant and

-------------------------------END PAGE 64---------------------------------

a real slap in the face of communities of color in this state.

"It's clearly designed to prevent any gay-rights legislation that would legalize domestic partnerships, family partnerships and/or same sex marriages. It's unclear how this would effect AB 101. Sheldon has vowed to repeal AB 101 through a referendum in 1992. We just don't know yet if they will try to put both items on the ballot," McBride says.

In its Family Bill of Rights, the Family Congress contends the family unit as "...so basic and fundamental to American law and government that at the dating of our state and federal constitutions the protection of these invaluable foundations of society was presumed rather than expressly delineated in the law. Advocates of a new moral order seek to obtain legal recognition and tax-supported benefits for various relationships between people of the same and opposite sexes which have been reserved legally and historically in our state and nation for the natural institutions of marriage and parenthood."

The Family Congress is moving in the direction of a statewide initiative as it is unlikely such a measure would pass the state Legislature and governor's office. Authorities con- tacted by Frontiers were unsure as to whether a voter referendum could actually be used to alter the state's constitution, but agreed that a successful effort by the conservatives would likely end up in court.

In addition to passing its Bill of Rights, the Family Congress looks to tighten the initiative process, a change which would make efforts to overturn the law more difficult.

The Family Bill of Rights defines a "family" as a man and woman related by marriage, and/ or parents and their children, natural and adopted. It limits marriage to individuals of the opposite sex. In addition, it charges that all laws and principles within the state shall be interpreted and applied in a manner to promote and protect the integrity of the family. The Bill of Right contains other "family- oriented" provisions which affect educational review, a process strongly advocated by right-wing fundamentalists who disagree with mainstream textbooks and educational curricula.

The Family Congress liberally cites reference to their efforts as a continuance of the work of the nation's founding fathers. "Like the founders of 1776 who pledged their lives, their fortunes, and their sacred honor to the principles laid out in the Declaration of Independence, we, too, appeal to the Supreme Judge of the World, and go forward with a firm reliance on the protection of divine providence."

"Any Californian with an ounce of common sense should oppose this type of initiative--and that's what I expect the voters to do if it appears on the ballot," McBride says. But at the LIFE Lobby--and throughout the state--we're monitoring this very closely. We must always be ready to oppose any attempt to deny our rights as individuals and as families."

--Bill Geiger

FRONTIERS March 15, 1991 Appendix F

-------------------------------END PAGE 65---------------------------------

CALIFORNIA CITIZEN

April 1991

Vol. 4, No. 4

Capitol Resource Institute 1211 "H" Street, Ste. A, Sacramento, CA 95814 (916) 444-9445

Family Congress UNITING OF THE PRO-FAMIL MOVEMENT

By Michael Bowman

On February 21-23, 1991 over 100 organizations representing thousands of Californians assembled for the first Family Congress and after a year of hard work the Congress unanimously adopted the Declaration on the Family. In addition, the Family Congress presented the Family Bill of Rights, a document that will be introduced as a Constitutional amendment to the state legislature. The document establishes a legal definition of what constitutes a family. Both documents enumerate the primary right of parents in raising and educating children while minimizing the "Big Brother bureaucracy" of the state.

The Declaration on the Family is the "mission statement" for the Family Congress. It is modelled directly after the Declaration of Independence. It is a document that anchors pro- family forces with concrete philosophical and historical principles. It declares that rights and protections are given to families as self-evident truths derived from a Judeo-Christian worldview.

Family Bill of Rights

The Family Bill of Rights is designed to place language in the California Constitution that says families should decide what is in their best interest rather than government making personal decisions for its citizens. The amendment will strengthen parental authority in decisions affecting their own family. It will force government agencies to recognize that parents are in charge of their child's education and growth and that government is accountable to parents.

What is so significant about the Family Congress? To understand this, all one needs to do is look at what the opposition to the pro-family movement has been able to accomplish. They have put aside their personal agendas and united their efforts to make incremental political gains. For example, the parental consent bill was opposed in the California Legislature by liberals who were able to unite the California Medical Association, the California Teachers Association, the American Civil Liberties Union, National Organization for Women, the American Pediatrics Association, the California Nurses Association, Planned Parenthood, the Religious Coalition for Abortion Rights, and The Queens Bench (A Lesbian Legal Society). This however is not a one time alliance, these groups have a known working reputation to collaborate and support one another.

The pro-family side has been less successful in constructively facing this opposition in significant ways. The

-------------------------------END PAGE 66---------------------------------

Family Congress has been constructed to unite pro-family groups while fighting head to head with anti-family forces. The Congress intends to demonstrate to the Legislature and media that the family is not a special interest group but the sacred foundation of our society.

The Family Congress was able to agree on fundamental principles listed in the Declaration on the Family and on a Constitutional Amendment that would strengthen families. Also adopted were five key pieces of legislation that would endow families with rights, responsibilities and financial security.

Not only did the Conference propose significant legislation it also heard from key leaders in our nation and state on family issues. Speakers included California Attorney General Dan Lungren, Civil Rights Advocate James Meredith, Dr. Bill Allen of the U.S. Commission on Civil Rights, Dr James Dobson by a special prerecorded address to the Congress, Dr. Charles Heatherly of the Heritage Foundation, Alan Sears of the National Family Legal Foundation, Dr. Larry Arn of the Claremont Institute and David Llewellyn of Western Center for Law and Religious Freedom. A number of state legislators and congressmen also attended.

The Conference demonstrated that the California Pro-Family

movement is ready to make a serious attempt in protecting and preserving the American family.

If you are interested in learning more about the Family Congress or would like to receive a copy of the adopted Declaration on the Family, please send a written request to:

Capitol Resource Institute 1211 H Street, Suite A

Sacramento, CA 95814 Attention: Family Congress

A HIGHLIGHT OF THE LEGISLATION PROPOSED

Education - Allow state-wide open enrollment in public schools. Child Support - Require non-custodial parents when required to pay child support payments to establish a trust account with the custodial parent in the amount of one year of child support payments. This account could be withdrawn only in the event of a late payment of over 30 days by the custodial parent in the amount of one monthly payment. Taxation - Significantly increase dependent deduction amounts. Obscenity - Mandate that courts use local community standards rather than state-wide standards to define obscenity. Child Dependency - Give parents the right to present evidence at a jury trial in juvenile court before the state can terminate parental custody of the child. The court decision should be based on clear and convincing evidence.

Parents' Education Tool Kit

Every parent or citizen concerned with the educational process should have this kit. This kit contains:

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*Moral/Civic Education and Teaching about Religion

*Parents Rights and Responsibilities Handbook *Excuse of Pupil from Objectionable Material Forms

*Facts sheets on: Social Science Curriculum

Sex Education/AIDS Curriculum Getting Involved in School Boards

Curriculum Committees There is a suggested donation of $15 or more for this kit.

Baccalaureates are back

David Llewellyn Western Center for Law and Religious Freedom

Baccalaureates are intended to be community events with significant religious content. Although the government cannot endorse religion, the moral values essential to responsible citi- zenship typically rest on religious foundations in the lives of individuals and communities. Since baccalaureates confer the blessings of community, church, and family on the graduates and their futures, the appropriate activities in baccalaureate celebrations include prayers, sermons, sacred music and religious ceremonies.

Because of their religious nature, however, baccalaureates cannot be officially conducted or sponsored by the public school officials.

The Western Center for Law and Religious Freedom recommends the following procedure for conducting a baccalaureate that avoids constitutional concerns:

1. Form a private committee of local people interested in organizing, financing and conducting the baccalaureate. To preclude misunderstanding, do not use the name of the school in the name of the committee, to avoid appearing to be an official school-sponsored event.

2. Select an appropriate date for the baccalaureate that does not conflict with any school sponsored activities.

3. Apply to the school or school to rent the school auditorium on the date selected for the baccalaureate. In California, school buildings are available for use by the community during nonschool hours under the Civic Center Act. The committee may have to pay a fee to rent the facilities.

4. Invite parents, family, students, teachers, churches and the community to the baccalaureate using mail, radio and other means of communication. Arrange with school officials to distribute invitations to the students and faculty and to post notices of the baccalaureate in the same manner that literature and notices are distributed and displayed for other local activities not sponsored by the school. Make it clear to the school official that you are requesting only the same kind of communication access to the students that other organizations and enterprises receive.

5. Organize the baccalaureate to be conducted by nonschool people. Principals, teachers and school staff may be invited to speak or otherwise participate in the baccalaureate, but the invitation to do so and the introductions and announcements at

-------------------------------END PAGE 68---------------------------------

the baccalaureate should make it clear that they are being asked to speak on the basis of their personal relationship with the students and not in their official capacities. The school officials should not participate in the planning of the program. The program should reflect the interests of the community or the churches and not the school. For example, school awards should not be presented. If recognition of students for their character, achievement, citizenship or religious commitments is desired, information may be gathered from school officials as well as other sources, but the decision determining the young people to receive such recognition and the form of the recognition should be decided by the committee and not by the school.

Appendix G

WESTERN CENTER FOR LAW AND RELIGIOUS FREEDOM March 4, 1991 March Fong Eu, Secretary of State Anthony L. Miller, Chief Deputy State of California 1230 J Street Sacramento, California 95814

Re: Request to Terminate Registration of "Family

Associations" under California Corporations Code 21300

et seq. Dear Secretary of State Eu and Mr. Miller:

By a letter dated September 19, 1990, the office of the Secretary of State received a demand from attorney Thomas F. Coleman of the Center for Personal Rights Advocacy accompanied by a 9-page memorandum arguing that the Secretary of State must issue official certificates of registration of unincorporated nonprofit associations to "couples" who seek to register themselves as "family associations."

The Secretary of State has apparently issued certificates of registration to at least two so-called "family associations."

The Western Center for Law and Religious Freedom believes that registration of "family associations" is a misapplication and abuse of the authority of Corporations Code 21300 et seq., and the purpose of this letter is to request that the Secretary of State's office terminate this practice forthwith and rescind any existing "family association" registrations.

At the request of Senator Newton R. Russell, we assisted in the preparation of a letter to the office of the Legislative Counsel requesting an opinion on the legal authority for this practice. A copy of the letter of request dated January 17, 1991, is attached hereto.

The Legislative Counsel has issued an opinion letter dated February 19, 1991, concluding also that the use of the

-------------------------------END PAGE 69---------------------------------

registration procedure is unlawful. A copy of the Legislative counsel opinion letter is attached hereto.

Without repeating the legal concerns which we raised in our earlier correspondence and which are supported by the opinion of Legislative Counsel, additional considerations reconfirm that this registration procedure should be terminated.

A complete refutation of Mr. Coleman's memorandum is unnecessary,, but it should be noted that it begins with three false premises which permeate his analysis and render it pointless.

First, his extensive policy arguments extolling his belief in the laudable results which would follow, in his opinion, from the "creative . . . use?" (page 5) of this statute are entirely irrelevant. Clearly the statute was not adopted with this "creative" intention, and the meaning of the statute must be determined by its language and legislative history, not by the manipulative arguments of special interest groups who want to twist it to societal applications outside its original scope.

Second, Mr. Coleman contends that the term "family" can mean virtually any form of relationship, citing as his primary authority dicta in the "settled decision" in Moore Shipbuilding Corporation v. Industrial Accident Commission in which the Court ruled that a 3 year-old dependent unrelated to the deceased was entitled to a death benefit as a member of his "household" as defined by the Workman's Compensation Act.

If anything, Moore Shipbuilding rebuts Mr. Coleman's argument.

(a) The Supreme Court in Moore Shipbuilding emphasized that its opinion dealt exclusively with the Workman's Compensation Act and that this law was a "'. . . system of rights and liabilities different from those prevailing at common law' . . . which 'undertakes to supersede the common law altogether and to create a different standard of rights and obligations'" (at 196 P. 258, emphasis added). In fact, the Court ruled that but for the Workman's Compensation Act the child's relationship to the deceased would be "outside the pale of legislative recognition" (id.). This case stands for very narrow, expressly authorized, special exception to the law, not, as Mr. Coleman argues, as the prevailing standard for the law in general.

(b) The Court in Moore Shipbuilding ruled that the mother of the child, the woman with whom the deceased had been living as husband and wife without benefit of marriage, was disqualified to be a member of the family or household of the deceased under the law. (Id. at 260.) This unmarried male-female relationship ("palimony," in modern parlance) is precisely one of the kinds of relationships which Mr. Coleman wants to register under Corporations Code 21300 et seq. (See Coleman memorandum at page 1.)

(c) There is not a word in Moore Shipbuilding to support

-------------------------------END PAGE 70---------------------------------

the assertion that a self-declared "family" should be treated under the laws of the state of California as an unincorporated nonprofit association and subject to the special laws dealing with unincorporated nonprofit associations.

Third, Mr. Coleman paradoxically asserts that "No benefits are automatically conferred upon a family which registers itself as an association" (at page 8), as if registration were merely a symbolic act and not what it really would be, the declaration that the parties to the registration are now to be governed by the laws of unincorporated nonprofit associations. This is the basis for many of the questions submitted to the Legislative Counsel.

Having denied the actual impact of registration, the application of unincorporated nonprofit association law, Mr. Coleman asserts a broad range of intentions to assert other legal consequences of registration, including granting legal recognition to unmarried couples, same sex couples and "domestic partnerships" (pages 1, 5, 8), permitting foster parents and guardianships to circumvent the parameters of existing law by registering minor children as "family" members (page 7, note 28), and permitting all Californians to bypass the laws of marriage. Moreover, Mr. Coleman's claims are too modest. Not only could "couples" register as "families," mimicking the true families created by the natural and immemorial relationships of marriage and parenthood, any combination of people could register and become a "family," including the "Manson family" and polygamous or polyandrous relationships.

The analysis stated in the Legislative counsel opinion and the foregoing comments demonstrate that registration of unincorporated nonprofit association "families" is not, as asserted by Mr. Coleman, a ministerial duty of the Secretary of State but rather a misapplication of the law which should be terminated.

We are available to discuss this matter further at your convenience. Please send us notice of the action taken on this request by your office.

Sincerely,

DAVID L. LLEWELLN, JR.

President and Special Counsel

Appendix H Office of the Secretary of State Executive Office (916) 445-6371 March Fong Eu 1230 Street

Sacramento, California 95814

-------------------------------END PAGE 71---------------------------------

March 11, 1991

Honorable Newton R. Russell State Capitol Sacramento, California 95814

Dear Senator Russell:

Thank you for sending me a copy of the Opinion of Legislative Counsel dated February 19, 1991, regarding the registration of the names of unincorporated nonprofit associations.

My legal staff has reviewed the opinion and I am enclosing a copy of their analysis. Please be advised that my office will act in accordance with that analysis.

Sincerely,

MARCH FONG EU

Enclosure

State of California

M e m o r a n d u m

To: March Fong Eu Date: March 11, 1991

From: Secretary of State, Office of Chief Counsel Anthony L. Miller

Subject: Legislative Counsel's Opinion

Family Associations-#2151 February 19, 1991

ou have requested a review of the above-referenced Opinion of

Legislative Counsel which was requested by Senator Newton R. Russell. Most of the issues addressed in that opinion have

already been considered by Secretary of State legal staff.

In his opinion, the Legislative Counsel concludes that a group of

persons who live together in a relationship in which they share

rights and duties similar to those shared by members of a traditional family may form an unincorporated nonprofit

-------------------------------END PAGE 72---------------------------------

association to formalize that relationship. We agree.

Legislative Counsel concludes that no formalities are required

for the formation of such an unincorporated nonprofit association. We agree. Legislative Counsel appears to conclude

that an association described above can assume a name under a

style such as "Family of John Doe and Jane Roe". We agree.

Although not essential to our analysis of the duties of this office, Legislative Counsel concludes that "family" has many

varied meanings and that it may include individuals not related

by blood or marriage who are living together in the intimate and

mutual interdependence of a single home or household. We agree.

Notwithstanding the foregoing, Legislative Counsel concludes that

an unincorporated nonprofit association which has assumed a name

in the style of "Family of John Doe and Jane Roe" cannot resister

that name pursuant to Corporations Code section 21301.* We disagree.

Section 21301 provides, in applicable part,

Any association...may register in the office of

the Secretary of State a facsimile or description of its name or insignia .... (emphasis added)

*Subsequent section references are to the Corporations Code unless otherwise noted. Memo to Dr. Eu March 11, 1991 Page 2

Section 21302 provides:

An association shall not be permitted to register any name or

insignia similar to or so nearly resembling another name or insignia already registered as may be likely to deceive

Section 21305 provides:

Upon registration, the Secretary of State shall issue his [sic]

certificate setting forth the fact of registration. [emphasis

added] We find this language to be unambiguous. Any association (except for certain specified categories not herein relevant) is entitled, as

-------------------------------END PAGE 73---------------------------------

a matter of right, to register its name with the Secretary of State provided that the name does not conflict with the name or insignia of a previously registered association. Upon registration, the Secretary of State must issue a certificate to that effect, the word "shall" in section 21305 imposing a mandatory duty to do so. (section 15) The Secretary of State, therefore, upon proper application, is under a mandatory, ministerial duty to register the names of associations and issue certificates accordingly notwithstanding the fact that an association name may be under a style such as "Family of John Doe and Jane Roe."

The Legislative Counsel, in reaching his conclusion that an association with a name under the style of "Family of John Doe and Jane Roe" cannot register its name pursuant to section 21301, does not address the unequivocal language (Any association... may register...."/"...the Secretary of State shall issue.... )[emphasis added] of that section and of section 21305. Instead, Legislative Counsel relies upon section 21307 which provides:

Any person who willfully wears, exhibits, or uses for any

purpose a name or insignia registered under this chapter, unless he is entitled to use, wear, or exhibit the name of

insignia under the constitution, bylaws, or rules of the association which registered it, is guilty of a misdemeanor

punishable by fine of not to exceed two hundred dollars ($200) or by imprisonment in the county jail for a period

not to exceed 60 days. Memo to Dr. Eu March 11, 1991 Page 3

Legislative Counsel argues that this penal section creates an exclusive right to the use of a registered name or insignia under section 21301; that case law does not permit "exclusive rights" to be attached to "words in common use" such as the word "family" or to a family name; that, therefore, an association which includes as part of its name the word "family" or a "family name" cannot be registered. We disagree.

Legislative Counsel assumes, without analysis, that section 21307 vests in an association the exclusive right, without exception,

-------------------------------END PAGE 74---------------------------------

to use the words which comprise its name once the name is registered pursuant to section 21301. Thus, if a hypothetical unincorporated association with the name "Friends of the Homeless" registered its name pursuant to section 21301, it would, according to Legislative Counsel's line of reasoning, prevent anyone else, at the risk of criminal prosecution, from ever uttering, writing, or in any way using those words even, presumably, in the course of casual speech or other discourse. A speaker at a rally for the homeless who described the gathering as "friends of the homeless" would risk arrest. That is absurd. It is axiomatic that the courts will avoid interpreting statutes so as to lead to absurd results and a court would have no problem avoiding such a result in interpreting section 21307.

Section 21307, stripped to its essence, says: "Any person who Willfully...uses for any purpose a name...registered under this chapter [unless authorized by the association] ...is guilty of a misdemeanor...." The prohibition here does not involve the coincidental use of words which the user is otherwise entitled to use, such as a person's own name. The prohibition, instead, relates to the willful unauthorized appropriation or infringement of an association's registered name. An association once registered, is protected from unauthorized appropriation or infringement by others but section 21307 does not prevent the benign use of the words which comprise the association name by others who are independently vested with the right to use them.

This point was made by the court in Cebu Association of California, Inc. v. Santo Nine de Cebu Inc. (1979) 95 Cal.App.3d 129, 157 Cal.Rptr. 102. In that case a trial court had issued an injunction restraining appellants from using the word "Cebu" as part of the name, title, or designation of appellant's organization or in connection with the solicitation or promotional purposes. ("Cebu" is the name of a major island in the Philippines.) The appellate court reversed, holding that a court may properly enjoin the use of composite

-------------------------------END PAGE 75---------------------------------

marks such as "Cebu Association of California" but not the single word "Cebu" from use by another organization. 95 Cal.App.3d at 135. The court distinguished between the protections extended to a name versus the words which may comprise all or part of the name.

Memo to Dr. Eu March 11, 1991 Page 4

just as the court in Cebu refused to enjoin the use of words which appellants were otherwise entitled to use as a matter of right (in that case, a geographic name), so must section 21307 be read so as to bar nothing more than the unauthorized appropriation or infringement of an association's registered name. Thus, it would not, as Legislative Counsel suggests, make criminal the "Doe family's" mere use of their surname on greetings cards even if an association by the name of "Family of Doe" had registered its name pursuant to section 21901. Section 21307 would come into play only if the "Doe family" or other individuals willfully attempted to appropriate or in some way infringe upon the association's name. (It should be noted that, in reality, a prosecution under section 21307 would be extraordinarily rare regardless of how this section is construed given the uniqueness of association names in the style of "Family of James Doe and Jane Roe.)

We believe that Legislative Counsel has read more into section 23107 then the Legislature provided and than a court would find. Thus, we do not believe that section 21307 can be the basis of preventing associations from registering their names which are otherwise entitled to be registered pursuant to section 21301. However, our analysis does not stop here because we believe that the Legislative Counsel has erred in reaching his conclusion even if his expansive reading of section 21307 is correct.

Assuming, arguendo, that section 21307 does purport to create an exclusive right in an association to use the words of its

-------------------------------END PAGE 76---------------------------------

registered name, it does not follow that any common law prohibition recording exclusive rights to use the word "family," or the right to use one's own name, can be read into section 21301 as limitations on the right to register an association name. If "exclusivity" is the problem, as Legislative Counsel argues, then the defect is with section 21307 which purports (according to Legislative Counsel) to create exclusive rights to the words of a registered association name rather than with section 21301 which creates a right to register an association name.

To the extent that section 21307 may overreach common law rights to use words or names, it is either unenforceable and must be construed narrowly as is previously argued to avoid the defect or must be declared to be invalid. In any case, should section 21307 be determined to be defective, it is specifically made severable from section 21301 pursuant to section 19 and any sins in section 21307 cannot be visited on section 21301.

Even if conceivable defects with section 21307 can be imputed to section 21301, Legislative Counsel's application of trademark law to the registration of association names pursuant to section 21301 does not lead to the conclusions he suggests. Legislative Counsel Memo to Dr. Eu March 11, 1991 Page 6

To summarize, the registration of an association name pursuant to section 21301 under a style such as "Family of John Doe and Jane Roe" [emphasis added] does not prohibit anybody by the name of John Doe or Jane Roe from using his or her own name, singularly or collectively. To the extent section 21307 is construed so as to prohibit one from using is or her name, it is unenforceable. But that does not mean that an association cannot register a name which includes a surname under section 21301 which, by its terms, provides for the registration of any association name (except as otherwise specified in that section and section 21302). Had the Legislature intended to provide for

-------------------------------END PAGE 77---------------------------------

such a limitation, it could have certainly provided for such as it did in section 21301 itself with respect to "subversive" organizations. Whether it could do so constitutionally, is of course, another question.

We need not address various constitutional issues which Legislative Counsel's conclusion, if correct, would raise. These issues would include, but probably not be limited to, the rights of association, free speech, privacy, due process and equal protection which are provided for in varying degrees by the Constitutions of the United States and of California. These significant issues would have to be engaged only if the statutes were to be read to preclude the registration of the names of only one category of association, i.e., an association with a name that included the word "family,, and a surname. We believe the contrary to be true.

This office always gives considerable weight to the Opinions of Legislative Counsel. In the instant case, we agree with most of his conclusions. However, the Secretary of State is, ultimately, responsible for the implementation of the laws that are within the jurisdiction of her office and she must independently determine what those laws require her to do. We construe section 21301 to provide for the ministerial registration of the names of unincorporated nonprofit associations upon proper application and the issuance of certificates accordingly even if the names include the word "family" or one or more "surnames".

###

Appendix I

March 18, 1991

Attorney General Daniel Lungren Department of Justice 1515 X Street Sacramento, CA 95814

Dear Attorney General Lungren:

-------------------------------END PAGE 78---------------------------------

I am writing to request an opinion from the office of the Attorney General on the legality of the practice of the Secretary of State issuing unincorporated nonprofit association registration certificates to individuals who register themselves as "families" and then use the registration R's official evidence of their "family" status.

Enclosed is a series of correspondence on these issues that will clarify the question, including:

(1) Correspondence from Senator Russell to Secretary of State

date February 20, 1991, (2) Legislative counsels opinion #2151 dated February 19, 1991,

(3) Correspondence from the Western Center for Law and Religious

Freedom to Secretary of State dated March 4, 1991, (4) Secretary of State's Chief Counsel's reply to Legislative

counsels opinion #2151 dated March 11, 1991 and (5) Attorney Thomas Coleman memo to Mr. Anthony L. Miller, Chief

Deputy secretary of State dated September 19, 1990. The questions about the appropriateness of the registration may be summarized as follows:

(1) Whether the rights to exclusive use of a registered name of an unincorporated nonprofit association precludes the registration of a family name (such as the Jones Family)?

(2) Whether the absence of any indicia of intention to operate under or to be bound legally by the law of unincorporated nonprofit associations precludes the registration of individuals as "families".

(3) Whether the meaning of "association" reasonably includes individuals desiring to declare themselves as "families"?

(4) Whether the admittedly "creative...Use" of the registration statute to register "families" falls outside of the intended scope of the law?

(5) Whether registration of individuals as a "family" under, the law permits such unincorporated nonprofit associations to obtain any rights or privileges accorded to "families" under California law?

I would appreciate your opinion to the above question as-soon-as possible. If I can be of further assistance in clarifying any of

-------------------------------END PAGE 79---------------------------------

the above please do not hesitate to contact me or my assistant Mr. Zamorano.

Sincerely,

Senator Newton Russell 21st Senate District

Appendix J

May 14, 1991

Thomas F. Coleman Executive Director Family Diversity Project P.O. Box 65756 Los Angeles, CA 90065

Dear Mr. Coleman:

Opinion No. 91-505

We have received a request from Senator Newton R. Russell for an opinion of the Attorney General on the following question:

May individuals register themselves as a "family" with the Secretary of State under the provisions pertaining to unincorporated nonprofit associations? If so, what rights follow from registration?

It is the policy of our office to solicit the views of all interested parties prior to issuing an opinion. our comments regarding the questions presented would be appreciated. If possible, a response by June 1, 1991, would be most helpful; materials received after such date will nonetheless be considered. Views submitted will be treated by our office as public records under the Public Records Act. Please address your views to: Deputy Attorney General Ronald Weiskopf, 110 West "A" Street, Suite 700, San Diego, CA 92101; telephone (619) 237-7674.

Sincerely,

DANIEL E. LUNGREN

-------------------------------END PAGE 80---------------------------------

Attorney General

NELSON KEMPSK Chief, Opinion Unit

NK:lac Appendix K

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNE GENERAL State of California

DANIEL E. LUNGREN

Attorney General

OPINION ~

~ No. 91-505

~ of ~

DANIEL E. LUNGREN ~ Attorney General ~ JANUAR 16, 1992

ANTHON S. DaVIGO ~ Deputy Attorney General ~

THE HONORABLE NEWTON R. RUSSELL, MEMBER OF THE CALIFORNIA SENATE, has requested an opinion on the following question:

Under the law pertaining to unincorporated nonprofit associations, may the Secretary of State issue a certificate of registration as a "family" to any two or more individuals who share a common residence?

CONCLUSION

Under the law pertaining to unincorporated nonprofit associations, the Secretary of State may not issue a certificate of registration as a "family" to any two or more individuals who share a common residence.

-------------------------------END PAGE 81---------------------------------

ANALSIS

Corporations Code section 21301 provides:

"Any association, the principles and activities of which are

not repugnant to the Constitution or laws of the United States or

of this State, may register in the office of the Secretary of

Stale a facsimile or description of its name or insignia and may

by reregistration alter or cancel it." Section 21301 is part of the statutory scheme regulating unincorporated nonprofit associations. ( 21000-21401.) We are asked whether under section 21301, the Secretary of State may grant an application for a certificate of registration to two or more individuals (whether or not related by blood, marriage or adoption) in the style of and for the purpose of being registered and known as "Family of J. Doe and J. Roe."

The principle issue presented is whether a domestic relationship of two or more persons with a common residence constitutes an "association" of the type or nature which may be registered as a "family." Does such relationship constitute a "family," and if so, does a family constitutes an "association" which may, by definition, be issued a certificate of registration?

The term "family" is in itself broad and inclusive. The term, as defined in Webster's New International Dictionary (3d ed. 1961) at page 821, includes a group of persons in the service of an individual; the retinue or staff of a nobleman or high official; a group of people bound together by philosophical, religious, or other convictions; a body of employees or volunteer workers united in a common enterprise; a group of persons of common ancestry; a group of persons of distinguished lineage; a people regarded as deriving from a common stock; a group of individuals living under one roof; the body of persons who live in one house and under one head including parents, children, servant, and lodgers or boarders; a group of persons sharing a common dwelling and table; the basic biosocial unit in society having as its nucleus two or more parents living together and cooperating in the care and rearing of their own or adopted

-------------------------------END PAGE 82---------------------------------

children. Patently, then, the word "family" has different meanings depending upon the context and circumstances of its use. (Moore Shipbuilding Corp. v. Industrial Acc. Com (1921) 185 Cal. 200, 207; Estate of Bennett (1901) 134 Cal. 320, 323). In the statutory scheme pertaining to unincorporated associations in general ( 20000-24007), the term "nonprofit association" is defined in section 21000 as follows:

"A nonprofit association is an unincorporated association of

natural persons for religious, scientific, social, literary, educational, recreational, benevolent, or other purpose not that

of pecuniary profit." As part of this legislation and specifically with respect to nonprofit associations ( 21000-21401), the term "association" is defined in subdivision (a) of section 21300 as follows:

"Association' includes any lodge, order, beneficial

association, fraternal or beneficial society or military, or veterans organization, labor union, foundation, or federation, or

any other society, organization, or association, or degree, branch, subordinate lodge, or auxiliary thereof."

However, whether one or more definitions of "family" may literally fall within the concept of an "association" is not, in our view, dispositive of the issue presented. Rather, we look to and apply the appropriate rules of statutory construction applicable herein. The "primary aim in construing any law is to determine the legislative intent." (Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, 501.) "The meaning of a of a statute may not be determined from a single word or sentence; the words must be construed in context, and the provisions relating to the same subject matter must be harmonized to the extent possible." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) "Statutes are to be given a reasonable and common sense interpretation consistent with the apparent legislative purpose and intent 'and which, when applied, will result in wise policy rather than mischief or absurdity.' [Cita tion.]"

-------------------------------END PAGE 83---------------------------------

(Dyna-Med, Inc. v. Fair Employment  Housing Com. (1987) 43 Cal.3d 1379, 1391.)

First, it is noted that the definitions of the term "association" in sections 21000 and 21300, while nonexclusive, set forth at length specific examples of associations, organizations, end societies of various types and descriptions. They do not, however, specify a traditional or extended family or purely domestic relationship. This obvious absence of definitional specification is inconsistent with a legislative intent to include within the statutory design a kind or category which would comprise the vast majority of associations.

Second, the concept of "family" in the sense of persons living together in a traditional or other relationship is unlike the kinds of associations which are statutorily specified. As previously noted, section 21000 refers to an "association of natural persons for religious, scientific, social, literary, educational, recreational, benevolent, or other purpose . . . ." In similar vein, section 21300 specifies a "lodge, order, benevolent association, fraternal or beneficial society or association, historical, military, or veteran's organization, labor union, foundation, federation, or any other .

. association . . . ."

Under the doctrine of ejusdem generis, the word "other" may signify a distinction or difference from that already mentioned, yet when it follows an enumeration of particular classes, "other" must be read as "other such like" and includes only others of like kind or character. (Estate of Stober (199O) 108 Cal.App.3d 591, 599; 74 Ops.Cal.Atty.Gen.167, 168 (1991).) Further, had the Legislature intended for the more general terms of sections 21000 and 21300 (eq., "social," "society") to be used in their unrestricted sense, it would not have mentioned the particular things or classes which thereby would become mere surplusage. (See Sears Roebuck  Co. v. San Diego County Dist. Council of Carpenters(1979) 25 Cal.3d 311 331.) As stated in Civil Code section 3534: "Particular expressions

-------------------------------END PAGE 84---------------------------------

qualify those which are general." (See In re Marquez (1935) 3 Cal.2d 625, 629; 73 Ops.Cal.Atty.Gen. 156, 160-161 (1990).) It is significant that all of the specified categories in sections 21000 and 21300 are associated by some external, discreet, and special common interest or endeavor not constrained or limited by any preexisting domestic or residential relationship.

Third, if the term "association" were understood in its broadest sense, it would include every conceivable interpersonal relationship, whether or not in common residence. Two or more persons might be associated by various kinds and degrees of mental, emotional, psychological, or physical relationship, or mere friendship. It is unreasonable to ascribe to the Legislature an intent to authorize, and to require upon appropriate application, the registration by the Secretary of State of all such associations.

Moreover, as noted at the outset, section 21301 permits any association to register in the office of the Secretary of State a facsimile or description of its name or insignia. Section 21302 prohibits an association from registering any name or insignia similar to or so nearly resembling another name or insignia already registered as may be likely to deceive. The legislative scheme provides for an index of registrations (21306), criminal penalties for the unauthorized use of a registered name or insignia (21307), injunctive relief (21308), and civil damages (21309). It is clear from the context of the statutory scheme as a whole that section 21301 providing for the registration of association names and insignia was intended to preclude unfair and deceptive practices by preserving the name, goodwill, and reputation of an association against misappropriation and unfair competition. We are unaware of any social or public policy of this state lo preserve or protect a family name for the exclusive use of a particular family. Had the Legislature intended lo accomplish the latter result, in our view it would have done so after careful deliberation and in unequivocal terms. We

-------------------------------END PAGE 85---------------------------------

believe that the Legislature simply did not intend to authorize the registration of family names for the sole purpose of providing public recognition of a "family" association.

Finally, if the word "association" includes any two or more persons who live together, then it certainly includes the "traditional" family, consisting of husband, wife, and children. The Legislature has enacted a comprehensive statutory scheme regulating domestic relations, known as The Family Law Act. (Civ. Code, 4000 et seq.) The mere existence of such an integral, comprehensive, and specific system of laws regulating domestic relations is an indication that the provisions of another general statutory scheme were not intended to apply. (Cf. O'Sullivan v. City and County of San Francisco (1956) 145 Cal.App.2d 415, 418; 63 Ops.Cal.Atty.Gen. 24, 28 (1980.) It is reasonable to infer that the Legislature did not intend to superimpose separate provisions upon the same subject mater. (American Friends Service Committee v. Procunier (1973) 33 Cal.App.3d 252, 262-263; cf. Alta Bates Hospital v. Lackner (1981) 118 Cal.App.3d 622.)

The actual conflicts which would arise by the imposition of both statutory schemes suggest that the Legislature did not contemplate the application of both. In the case of a husband and wife, the law of domestic relations and the law pertaining to associations would operate differently and inconsistently. With respect to the internal relationship of the individuals, for example, a member of an association would have no interest in the earnings of the other, whereas such earnings under the law pertaining to families would constitute the property of the community. (Civ. Code, 4800.) Further, an association may be dissolved at will or by the terms of its formational agreement, such as the articles of association or bylaws, while the law governing marital dissolution requires proof of irreconcilable differences. (Civ. Code, 4506.) With respect to external relationships, a member of an association is generally not liable for the association's debts (see 21100-21102, 24002; cf.

-------------------------------END PAGE 86---------------------------------

Jardine v. Superior Court (1931) 213 Cal. 301; Security First National Bank v. Cooper (1944) 62 Cal.App.2d 653, 667; Leake v. City of Venice (1920) 50 Cal.App. 462; 59 Ops.Cal.Atty.Gen. 162, 165 (1976)), while spouses are liable for debts incurred by either spouse during the marriage. (Civ. Code, 5116.). We see no basis for concluding that a husband and wife who share a common residence were intended to be covered by the term "association" for purposes of sections 20000- 24007.

It is, of course, axiomatic that a public officer has only such powers as have been conferred by law. (See 72 Ops.Cal.Atty.Gen. 51, 52 (1989) [county auditor]; 68 Ops.Cal.Atty.Gen. 223, 224 (1985) [county tax collector]; and 62 Ops.Cal.Atty.Gen. 504, 508 (1979) [county tax collector]; 67 Ops.Cal.Atty.Gen. 325, 330 (1984) [Department of Industrial Relations Director]; 65 Ops.Cal.Atty.Gen. 321, 325 (1982) [county recorder]; 65 Ops.Cal.Atty.Gen. 467,468 (1982) [Governor]; 63 Ops.Cal.Atty.Gen. 840, 841 (1980) [State Treasurer].) Here, Section 21301 does not confer upon the Secretary of State the a authority to register the "family" names in question.

Accordingly, in answer to the question presented, we conclude that under the law pertaining to unincorporated nonprofit associations, the Secretary of State may not issue a certificate of registration as a "family" to any two or more individuals who share a common residence.

********************

NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW

VOL. 1, ISSUE 1 Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)

A (Personal) Essay on Same-Sex Marriage

Barbara J. Cox Professor

California Western School of Law _________________________________________________________________

Very little since Stonewall, and the break from accepting

-------------------------------END PAGE 87---------------------------------

the status quo that those riots symbolize, has challenged the lesbian and gay community as much as the debate we have had over the past several years on whether seeking the right to marry should be the focus of our community's efforts, political influence, and financial resources. As is often true in most such political debates, both "sides" to the debate make important arguments about the impact that the right to marry will have on each member of our community, on the community as a whole, and on our place in society.

Arguing against same-sex marriage in her article, Since When is Marriage a Path to Liberation?, Paula Ettelbrick believes that it will not liberate lesbians and gay men but will make us more invisible, force assimilation, and undermine the lesbian and gay civil rights movement. She also argues that it will not transform society into respecting and encouraging relationship choice and family diversity, which are primary goals of that civil rights movement. Ruth Colker in Marriage echoes Ettelbrick's concerns, arguing that rather than expanding the couples who can marry, we should change the institution of marriage to eliminate its marriage-dependent benefits, so that people will choose it for symbolic, rather than legal or utilitarian, reasons. She also recognizes the class-based assumptions inherent in the marriage debate, realizing that for most poor people, marriage offers few economic advantages.

Nitya Duclos examines four reasons advanced for same-sex marriage (political reform, public legitimation, socioeconomic benefits, and safeguarding children of lesbian or gay parents) in her article, Some Complicating Thoughts on Same-Sex Marriage. She concludes that the effects of allowing same-sex marriage will not be felt uniformly throughout lesbian and gay communities and questions whether it will exacerbate differences of power and privilege in those communities.

In a companion piece to Ettelbrick's, Thomas Stoddard, in Why Gay People Should Seek the Right to Marry, while recognizing the oppressive nature of marriage in its traditional form, believes that lesbians and gay men should be able to choose to marry and the civil rights movement should seek full recognition of same-sex marriages. His three reasons for pursuing this right are the practical advantages associated with marriage-related benefits, the political reason that marriage is the issue most likely to end discrimination against lesbians and gay men, and the philosophical explanation that lesbians and gay men should have the right to choose to marry and that providing that right will be the principal means toward eliminating marriage's sexist trappings.

Nan Hunter, in Marriage, Law and Gender: A Feminist Inquiry, argues that legalizing lesbian and gay marriage will destabilize marriage's gendered definition by disrupting the link between gender and marriage. She analyzes both marriage and domestic partnership against the feminist inquiry of how law reinforces power imbalances within the family and views same-sex marriage as a means to subvert gender-based power differentials. Mary Dunlap finds that same-sex marriage is constructive when lesbians and gay men are encountering gay-bashing resulting from Bowers. She examines the values underlying the push for same- sex marriage (such as equality, autonomy, fairness, privacy, and diversity) and encourages expansion of the marriage debate

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outside legal circles. One way to expand this debate is to read the interviews of lesbian and gay couples, some of whom have chosen to have public ceremonies celebrating their commitment and some of whom have chosen to keep their commitment private.

The debate continues to rage, as seen from the recent articles contained in the Virginia Law Review's symposium issue. Without resolving the debate here, it seems clear that obtaining the right to marry will drastically impact the lesbian and gay civil rights movement. My response to the debate is best expressed in the following short (and personal) essay, explaining the vital political change that can result from the simple (and personal) act of same-sex marriage.

es, I know that weddings can be "heterosexual rituals" of the most repressive and repugnant kind. es, I know that weddings historically symbolized the loss of the woman's self into that of her husband's, a denial of her existence completely. es, I know that weddings around the world continue to have that impact on many women and often lead to lives of virtual slavery. es, I know. Then how could a feminist, out, radical lesbian like myself get married a year ago last April? Have I simply joined the flock of lesbians and gay men rushing out to participate in a meaningless ceremony that symbolizes heterosexual superiority?

I think not. When my partner and I decided to have a commitment ceremony, we did so to express the love and caring that we feel for one another, to celebrate that love with our friends and family, and to express that love openly and with pride. It angers me when others, who did not participate or do not know either of us, condemn us as part of a mindless flock accepting a dehumanizing ceremony. But more it distresses me that they believe their essentialist vision of weddings explains all -- because they have been to weddings, both straight and queer, they can speak as experts on their inherent nature.

Perhaps these experts should consider the radical aspect of lesbian marriage or the transformation that it makes on the people around us. As feminists, we used to say that "the personal is political." Have we lost that vision of how we can understand and change the world?

My commitment ceremony was not the mere "aping" of the bride that I supposedly spent my childhood dreaming of becoming. (In fact, I was a very satisfied tomboy who never once considered marriage.) My ceremony was an expression of the incredible love and respect that I have found with my partner. My ceremony came from a need to speak of that love and respect openly to those who participate in my world.

Some of the most politically "out" experiences I have ever had happened during those months of preparing for and having that ceremony. My sister and I discussed for weeks whether she would bring her children to the ceremony. Although I had always openly brought the women I was involved with home with me, I had never actually sat down with my niece and nephews to discuss those relationships. My sister was concerned that her eldest son, particularly, might scorn me, especially at a time when he and his friends tended toward "faggot" jokes. After I expressed how important it was for me to have them attend, she tried to talk with her son about going to this euphemistically-entitled

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"ceremony." He kept asking why my partner and I were having a "ceremony" and she kept hedging. Finally he just said, "Mom, Barb's gay, right?" She said yes, they all came, and things were fine. Her youngest son sat next to me at dinner after the ceremony trying to understand how it worked. "ou're married, right?" "es." "Who's the husband?" "There is no husband." "Are you going to have children?" "No." "So there's no husband and no children but you're married, right?" "es." "OK," and he happily turned back to his dinner.

My partner invited her large Catholic family to the ceremony. We all know how the Pope feels about us. Despite that, her mother and most of her siblings, some from several states away, were able to attend. Her twin brother later told us that our ceremony led him to question and resolve the discomfort that had plagued his relationship with his sister for many years.

As a law professor leaving town early for the ceremony, I told my two classes (one of 95 and one of 20 students) that I was getting "married" to my partner, who is a woman. (I actually used "married" because saying I was getting "committed" just didn't quite have the right ring to it.) The students in one of my classes joined together to buy my partner and myself a silver engraved frame that says "Barb and Peg, Our Wedding." My colleagues were all invited to the ceremony and most of them attended. One of them spoke to me of the discussion they had within their family explaining to their children that they were going to a lesbian wedding.

How can anyone view these small victories in coming out and acceptance as part of flocking to imitate, or worse join, an oppressive heterosexual institution? Is it not profoundly transformative to speak so openly about lesbian love and commitment? The impact was so wide-ranging, not just on my partner and myself, but on our families, our friends, and even the clerks in the jewelry stores when we explained we were looking for wedding rings for both of us. Or on the 200 people who received my mother's annual xeroxed Christmas letter with a paragraph describing the ceremony. Or the clerk in the store who engraved the frame for my students. Or the young children who learned that same-sex marriage exists.

es, we must be aware of the oppressive history that weddings symbolize. We must work to ensure that we do not simply accept whole-cloth an institution that symbolizes the loss and harm felt by women. But I find it difficult to understand how two lesbians, standing together openly and proudly, can be seen as accepting that institution? What is more anti-patriarchal and rejecting of an institution that carries the patriarchal power imbalance into most households than clearly stating that women can commit to one another with no man in sight? With no claim of dominion or control, but instead of equality and respect. I understand the fears of those who condemn us for our weddings, but I believe they fail to look beyond the symbol and cannot see the radical claim we are making.

********************

NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW

VOL. 1, ISSUE 1 Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)

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Recognition of Domestic Partnerships by Governmental Entities and

Private Employers.

By: Lewis Becker Professor of Law, Villanova Law School1

I. Introduction.

Persons who are unmarried but who are living together as "domestic partners" are increasingly being given recognition by governmental entities (primarily municipalities) and private employers.

Recognition by municipalities can take one of two forms. First, some municipalities permit a couple who live together in a committed relationship and who meet various qualifications to publicly register their status as "domestic partners". Such registration serves to permit partners, and especially gay partners, to have a symbolic recognition of their union similar in some respects to the recognition afforded by a licensed and solemnized marriage. Second, some municipalities extend to the "domestic partner" of a municipal employee the same health care and other benefits that would have been extended to the spouse of the employee. Some municipalities both permit symbolic registration and confer benefits; others simply either permit registration or confer benefits. Where municipalities do recognize domestic partnerships, they usually act by ordinance or other legislation; however, action may also be by executive order (as when New ork City established a general registration procedure) or by contract with a labor union (for example, the coverage of domestic partners within health plans may be provided for in a labor union contract).

Where private employers are concerned, the recognition of domestic partners (if any recognition is extended by the employer) takes the form of the extension of health care and other employment related benefits to domestic partners.

Gay activists have been in the forefront of attempts to achieve recognition of domestic partnerships. Although such recognition may or may not benefit only gay partners, it does serve a real need in the gay community because gay partners are not otherwise able to achieve societal recognition (and other more tangible benefits) by marrying each other. Of course, recognition of domestic partnerships by municipalities and other governmental entities is not the functional equivalent of marriage. However, the pressure for such recognition is the outgrowth of the fact that persons of the same sex are prohibited in every state from entering into marriage. (State laws prohibiting persons of the same sex from being married to each other have occasionally been challenged as unconstitutional under the United States Constitution, but no such challenge has been successful. The Supreme Court of Hawaii2 recently reversed the

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dismissal of a complaint which contended that the Hawaii statute prohibiting same sex marriages was unconstitutional under the state constitution - specifically, under Hawaii's Equal Rights Amendment. A plurality of the court held that the statute must pass the strict scrutiny test in order to be constitutional.)

Laws prohibiting discrimination based on sexual orientation have been passed in many cities and some states.3 Additionally, many states and localities prohibit discrimination on the basis of marital status in housing and employment.4 Laws prohibiting discrimination do not, of course, override state statutes which prohibit same sex marriage. Thus, while protected from discrimination in some states, gay couples are unable to achieve by marriage both the symbolic recognition afforded to heterosexual couples and the more tangible benefits, including favored immigration status, jail and hospital visitation rights, reduced cost club memberships, ability to file joint tax returns, exemption from gift taxes, estate tax deductions, extension of health benefits, right to sue for loss of consortium or wrongful death, privilege not to testify against the other, ability to own property as tenants in entirety, intestate succession, and entitlement to Social Security benefits.5 Attempts to win rights associated with marital status through litigation have been attempted, but at least one commentator has pointed out the inadequacies of litigation in this respect.6 In some instances, gay couples have attempted to use other legal tools, such as adoption, in an effort to establish "familial rights".7

It is in the context of this legal structure that municipalities and private employers have begun to increasingly recognize domestic partnerships. Interestingly, no municipal recognition seems to predate 1985.

One major caveat - it is difficult to speak with absolute certainty regarding the status and provisions of municipal ordinances and executive orders because they are not readily accessible for research purposes. I have therefore relied almost exclusively on secondary sources in describing the provisions of municipal ordinances and executive orders.8

II. Municipal action permitting members of the general public to register as a domestic partnership.

As has been stated above, some municipalities permit unmarried couples to register as domestic partners. For same sex couples, this permits a public declaration of status and recognition of status that is otherwise unavailable because they are not permitted to marry. The right of registration is permitted to the general public (as opposed to being confined, for example, to the municipality's employees). The fact of registration will usually confer no benefit other than the public declaration and recognition of the partnership. However, in a few instances registration confers specific privileges, such as recognition for purposes of hospital visitation.9 The executive order signed by Mayor Dinkins in New ork City provides for hospital and jail visitation rights and provides further that registration shall be considered evidence in determining whether

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a person qualifies as a family member entitled to occupancy rights in property owned by the New ork City Housing Authority and for succession and occupancy rights in property supervised by or under the jurisdiction of the New ork City Department of Housing Preservation and Development. Registration under a general registration provision may also serve as proof of domestic partnership for other purposes - e.g., health benefits extended by employers.

The Report of the Lambda Legal Defense and Education Fund lists, as of November 1993, the following cities as permitting general registration, along with the dates when registration provisions were adopted:

Berkeley, CA. (Oct. 1991)

Sacramento, CA. (Oct. 1992) San Francisco, CA. (Nov. 1990)

West Hollywood, CA. (Feb. 1985) Atlanta, GA. (June 1993)10

Cambridge, MA. (Sept. 1992) Ann Arbor, MI. (Nov. 1991)

Minneapolis, MN. (Jan. 1991) Ithaca, N. (Aug. 1990)

New ork, N. (exec. order Jan. 1993) Madison, WI. (Aug. 1988)

Additionally, published news reports indicate that in 1993, Hartford, Connecticut and New Orleans, Louisiana, have adopted general registration provisions.

Registration provisions that are open to the general public do not seem to be limited to same sex couples. Thus, even though heterosexual couples are free to marry, if they opt not to marry they are still free to avail themselves of the registration provisions. I am not aware of any recent empirical data concerning whether same sex couples are the chief users of general registration provisions.11 (One possibility is that where a municipality provides health care benefits for the registered domestic partner of a municipal employee, more heterosexual couples than same sex couples will register, but that where the chief benefit available is only a registration of status, more same sex couples than heterosexual couples will register.)

General domestic partnership registration provisions impose various eligibility requirements in order to register. Interestingly, these conditions often mirror the requirements to enter into marriage. Thus, it is very common to require that the parties be at least 18 years old, that each be mentally competent, that the parties not be related by blood ties closer than would bar marriage in the state, and that neither of the parties have an existing marriage or domestic partnership. Some may require that any prior domestic partnership have been terminated for a minimum period of time (for example, Ann Arbor requires 3 months, San Francisco and New ork City require 6 months).

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Ordinances may also contain additional requirements designed to insure that domestic partners have the kind of familial status associated with marriage. Thus, parties are often required to reside together. They are often required to declare that they have a committed relationship.12 They also may be required to assume an obligation for the basic living expenses of the other partner.13

In keeping with the marriage analogy, formalities may be required in order to register; for example, Ann Arbor requires two witnesses and the Declaration must be notarized. Other municipalities similarly require statements under oath regarding the qualifications of the partners. The registration of the domestic partnership may or may not become part of the public records. For example, in Ann Arbor and San Francisco, the partners may either ask the clerk to file the form or they may simply retain a copy of the completed Declaration in their private possession to be presented on an as needed basis.

Some cities, such as Minneapolis and San Francisco, limit the right of registration to couples where at least one partner lives or works in the city. Others, such as Berkeley and West Hollywood, allow non-residents to register.

Just as domestic partnerships can be created, they can also be terminated.14 Municipalities generally permit domestic partnerships to be terminated at any time by the unilateral act of one of the partners. (If the marriage analogy is pursued here, such a power of termination results in "divorce on demand".) Usually the statement of termination must be filed and/or notice must be given to the other domestic partner. Domestic partnerships also terminate, of course, upon the death of one of the partners.

III. Provisions conferring benefits upon the domestic partners of municipal employees.

Some municipalities recognize domestic partnerships in order to permit the domestic partners to obtain benefits which are given to married employees. The most common benefits conferred are usually health care benefits (for example, coverage of the domestic partner in employer sponsored insurance plans) or sick leave and bereavement leave (i.e., paid leave time to care for a sick domestic partner or to attend the funeral of a deceased domestic partner). Note that if health care reform takes the form of universal coverage for each person, as proposed by President Clinton, such reform may eliminate the need for recognition of domestic partnerships for purposes of health care benefits. On the other hand, if health care reform is keyed to covered employees, then recognition of domestic partnerships will remain important.

The Report of the Lambda Legal Defense and Education Fund lists, as of November 1993, the following as conferring health benefits:

Berkeley, CA.

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Laguna Beach, CA.

San Francisco, CA. Santa Cruz, CA.

West Hollywood, CA. Cambridge, MA.

Ann Arbor, MI. East Lansing, MI.

Minneapolis, MN. New ork, N (pursuant to settlement stipulation in

lawsuit). Burlington VT.

Seattle, WA. The Lamdbda Fund report lists the following as extending sick leave and bereavement leave:

Berkeley, CA.

Los Angeles, CA. Santa Cruz, CA.

West Hollywood CA. West Palm Beach, FL (bereavement leave only).

Takoma Park, MD. Ithaca, N.

New ork, N (bereavement leave only). Seattle, WA.

Madison, WI.

Ordinances that confer health care benefits or sick leave and bereavement leave may require registration or designation of the domestic partners. Where a municipality permits members of the general public to register as domestic partners if they meet prescribed qualifications, as discussed above, the municipality may require that employees who wish to register as a domestic partnership meet the same or similar qualifications. In any event, the qualifications necessary to register as domestic partners for the purpose of qualifying for employment related benefits are often similar to the qualifications discussed above for general registration. For example, to obtain coverage in the city of Laguna Beach, California, the partners must have filed an affidavit that they have lived together at least six months, are not related by blood, are mentally competent, and are responsible for their common welfare. West Palm Beach extends bereavement leave in the case of a domestic partner, defined as a person with whom the employee shares a residence, within the context of a committed relationship. Seattle requires that the employee submit an affidavit stating that: the domestic partners share a residence, have a close personal relationship, have agreed to be jointly responsible for the basic living expenses incurred during the domestic partnership, are unmarried, are at least 18, are unrelated by blood closer than would bar marriage, are mentally competent, are each other's sole domestic partner, and are responsible for each other's common welfare. The affidavit must also state that any prior domestic partnership has been terminated for at least 90 days. In some instances, no registration procedure may exist.15

Although municipalities have taken the lead in the

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recognition of domestic partnerships, occasionally benefits have been conferred upon domestic partnerships by other governmental entities. Thus, Ohio permits state employees sick and bereavement leave to care for a "significant other", defined as "one who stands in place of the spouse" with no other objective criteria.16 Moreover, it has been reported that the governor of Massachusetts, in September, 1992, issued an executive order granting sick and bereavement leave and hospital visitation rights to state employees who register their domestic partnership with the state.

IV. Recognition of Domestic Partnerships by Private Employers.

Increasingly, private employers are extending recognition to the domestic partnerships of employees. The Lambda Fund Report identifies the following employers as offering domestic partnership benefits (unfortunately, the list does not detail precisely which benefits - health care, sick leave, bereavement leave, or others - are offered by which employer):

ACLU/San Francisco

Albert Einstein College of Medicine/Montefiore Medical Center, Bronx, N

American Friends Service Committee, Philadelphia Amer. Psychology Assoc., Washington, DC

Apple Computer Co., CA Borland International, Scotts Valley, CA

Lambda Legal Defense Fund, NC Levi Strauss  Co., San Francisco, CA

Lotus Development Corp., Cambridge, MA MCA, Inc., Los Angeles, CA

Millbank, Tweed, Hadley  McCloy, NC National Organization for Women, Washington, DC

Orrick, Hennington  Sutcliffe, San Francisco, CA Pitzer College, Claremont, CA

Santa Cruz Metro. County Transit, CA Seattle Mental Health Institute, WA

Stanford University, Palo Alto, CA The Village Voice, NC

University of Chicago, IL Published reports have listed the following employers as also offering domestic partnership benefits:

Ben  Jerry's, Inc.

Beth Israel Medical Center Consumers United Insurance Co.

Garfinkel's Dept. Stores Home Box Office

Kaiser Health Care, North East Region Microsoft Corp.

Minnesota Communications Group (St. Paul) Silicon Graphics Inc.

Viacom Walker Arts Center

The topic of extension of benefits to domestic partners by

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private employers seems to be an increasingly hot one. Newspaper reports published within the week that this article is being finalized report that Apple Computer has extended health care benefits to domestic partners, that the University of Pennsylvania will be extending such benefits in May, 1994, and that Xerox Corporation has decided against such coverage.

Private employers which extend benefits to domestic partners may require advance registration and impose eligibility requirements similar to municipal requirements for general registration. Thus, the Lambda Fund Report states:

(i). Albert Einstein College of Medicine, Montefiore Medical Center, requires that the couple reside together, share financial responsibility for each other and file a sworn statement that they are each other's sole partner;

(ii). Levi Strauss requires that domestic partners consider themselves life partners, reside at the same address, be financially interdependent and have joint responsibility for each other's welfare; and

(iii). Lotus Development Corp. requires that the parties reside together and be responsible for each other's welfare and that an affidavit be signed attesting that the parties are spousal equivalents and intend to remain so indefinitely. Lotus also requires that if the parties break up, the employee must wait one year before registering another partner. This waiting period is longer than that required by any municipality.

Interestingly, some of the private employers make a distinction between heterosexual and same sex couples, making the benefits available only to same sex couples. The obvious rationale for such a distinction is that heterosexual couples have the option of legal marriage, whereas same sex couples do not have that option. For example, the Lambda Fund Report identifies Albert Einstein College of Medicine, Montefiore Medical Center, and Lotus Development as employers who make domestic partnership benefits available only to same sex couples. A published newspaper story indicates that Apple Computer extended benefits only to lesbian and gay partners. In this connection, a subcommittee at Stanford University charged with the task of recommending a policy regarding extending benefits to domestic partners concluded that benefits should be extended to both heterosexual and same sex couples, but that if costs militated against covering both groups, benefits be extended only to gay couples because of a stronger equitable claim.

In deciding whether or not to extend recognition, private employers face some considerations that are similar to those which face governmental entities, as well as some considerations which are quite different. Private employers are not subject to the same political pressures as governmental entities. However, some private companies might face an attack from religious and other groups opposed to the recognition of same sex partnerships. Likewise, some private employers might be concerned about the

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reaction of customers or other relevant groups (for example, in the context of a university the Stanford subcommittee considered potential costs in alumni/ae relations). Both private employers and governmental entities will be concerned with cost (which subject is discussed infra, in the Policy Analysis) and with the concerns expressed and pressures exerted by employee groups. Concerns expressed by organized groups of gay employees will probably be the most likely to have an impact. For example, recent published news stories have indicated that Apple Computer's gay and lesbian employee group, Apple Lambda, played a key role in a long term successful campaign to gain health care benefits, and that Xerox's "gay and lesbian caucus" played a significant but unsuccessful role in a similar attempt. In New ork City, a suit brought in part by the Lesbian and Gay Teachers Association resulted in a settlement extending health care benefits to gay, lesbian, and unmarried heterosexual domestic partners.

V. Policy Analysis.

A. Pro.

Recognition of domestic partnerships contributes to stability in domestic relations by encouraging gay couples who are not able to marry and heterosexual couples who are not married to enter into a marriage-like relationship and form family units with established rights and responsibilities. Moreover, the extension of health care benefits, sick leave, and bereavement leave to domestic partners of municipal and other employees remedies what is otherwise an inequitable situation, especially where same sex couples are involved. Employers who extend health care benefits to an employee with a married partner but who do not extend such benefits to an employee with a domestic partner are arguably inequitably undercompensating the employee with a domestic partner. (The employer certainly has the option of denying benefits based on spousal or domestic partnership status, but all benefits should be equitably distributed.) The critical importance of health care and the human dimensions of sick and bereavement leave underscore the desirability of treating an employee with a domestic partner the same as an employee with a marital partner.

B. Con.17

One argument against any recognition of domestic partnerships is that such recognition undermines support for the nuclear family and the institution of marriage. Conservative religious groups are the most likely to make such an objection. Such an argument seems more likely to be made when a municipality - as opposed to a private employer - is asked to recognize domestic partnerships, and especially when the municipality is being asked to permit members of the general public to register as domestic partners.18

The chief argument against the extension of health care benefits, and to a lesser extent sick leave and bereavement leave, is that such extension engenders higher costs. These

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fears, however, may well be unfounded on the basis of the experience to date:

(i). A spokesman for New ork City was quoted in a New ork Times article in late December, 1993, as stating that the experience of other cities which provided health benefits to domestic partners was that insurance fees for the additional coverage amount to less than 2 percent of total health insurance costs.

(ii). Home Box Office was quoted in a Wall Street Journal article in January, 1994, as stating that in its experience, covering gay partners costs 83% what heterosexual partners cost, because of no pregnancy costs.

(iii). A story in the Boston Globe, dated October 12, 1993, states that Seattle had found that domestic partners had lower overall claims costs and fewer medical visits than married employees and their spouses, and that although the city's insurers had initially charged extra premiums, they found that the surcharge was unnecessary. (The Boston Globe story states that nearly 5% of Seattle's 10,000 eligible employees have signed up. An earlier report, in the Lambda Fund Report, stated that as of April, 1991, there were 412 affidavits of domestic partnership on file with 125 (30%) identified as same sex couples.)

(iv). Berkeley and Santa Cruz found that adding domestic partnerships was roughly equivalent to adding a like number of spouses.18 In Berkeley, insurance carriers initially enacted a surcharge to cover the cost of insuring domestic partners but due to positive experience abandoned it.20

(iv). When West Hollywood self insured health benefits, it found that the increased costs were negligible, that claims ran lower than for married couples, and there was an actual positive effect because of the additional numbers of persons paying premiums. However the numbers involved were very small - only 6 domestic partnerships were registered.21

There are very few published counter indications of cost.22 Of course, even if costs are a factor, they are only a factor. As the Stanford subcommittee concluded, the stronger the argument for extending benefits on fairness terms, the heavier the burden to show that practical considerations outweigh it. The subcommittee also noted that at least with gays and lesbians, the fairness arguments for extending benefits are very strong.

It must be noted that even if cost is not a major problem, the fear of cost may be a problem in that such fear makes insurance companies hesitant about entering into coverage contracts with employers. A published story in the Boston Globe, dated October 12, 1993, quotes consultants as stating that insurance companies are the biggest barrier to wider access to domestic partnership benefits. Insurance companies that do not cover domestic partnerships state that they lack the actuarial data needed to determine whether partners' families will have higher or lower claims than families of married couples, and that

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it is therefore difficult to set premiums. The Boston Globe story states that Aetna will administer plans but does not underwrite policies, that John Hancock and Prudential will administer self-insured plans and decide on a case by case basis whether to insure domestic partners, and that ITT Hartford does not insure domestic partners. A consultant quoted in the article states that of 22 insurers surveyed in 1992, only one offers a standard policy to all customers.

Another objection to the extension of benefits is the asserted potential for fraud and abuse - the concern that employees will attempt to exploit the system by enrolling sick friends or relatives. However, if advance registration is a requisite for coverage, then the necessity of meeting all requirements necessary to qualify as domestic partners seem sufficient to prevent fraud (i.e., residence together, for specific time periods, financial interdependence, public affirmation of emotional commitment). Moreover, fear of reprisals or dismissal from employment are a hindering effect. Even more importantly, limits on pre-existing conditions under most insurance plans also inhibit fraudulent enrollment because enrollment may therefore be of limited value. Tort actions for damages caused by fraud are also a possibility. Santa Cruz provides that anyone injured because of a false statement in an Affidavit of Domestic Partnership may sue to recover losses as well as reasonable attorney's fees.23

Another disadvantage - or at least an additional cost as the result of benefit extension - may result from federal tax law. In response to a request from Seattle, the IRS concluded that "nonspouse cohabitants" (domestic partners who are not legal spouses) who do not receive more than 50% of their support from the employee do not qualify as "dependents" under 152 of the Internal Revenue Code. Therefore, benefits extended to such persons may be included as taxable income to the employee because they are not excludable from the employee's gross income. Moreover, the non exempt benefits may be taxed at "fair market value" - i.e., what the domestic partner would have had to pay for those benefits in an arm length's transaction.24 Given the high cost of health care, this could be a significant amount of calculable income on which the employee has taxable liability.

VI. Legal Ramifications.

It would seem that where, pursuant to registration requirements, the domestic partners have agreed to be jointly responsible for the basic living expenses of each other, an enforceable contract arises. The precise extent of the contractual agreement may, however, vary in accordance with the precise declaration required by the municipal registration ordinance. For example, in San Francisco and Seattle, the term "basic living expenses" is defined as meaning the costs of basic food and shelter and expenses which are paid at least in part by a program or benefit for which the partner qualified because of the domestic partnership (interestingly enough, medical expenses seem excluded).

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The existence of a domestic partnership between two people and/or a specific agreement to be responsible for the basic living expenses of each other may create not only an express contract but may also be the basis for asserting other equitable claims by one of the partners (for example, an implied contract claim). Even if there is no specific agreement to be jointly responsible for expenses, a statement that the parties share each others' living expenses or that they are financially interdependent may be the basis for either equitable claims or perhaps even an express contract claim. Only time will tell, however. Similarly, a claim may be made that creditors are able to enforce an agreement between domestic partners to be responsible for each other's expenses. San Francisco specifically requires that the parties agree that their agreement to be jointly responsible for basic living expenses can be enforced by anyone to whom those expenses are owed.

Where a domestic partnership terminates as the result of the voluntary act of one of the parties, the chief legal concern would seem to be the giving of notice to affected parties. Thus, an ordinance or an employer should provide that notice be given to the other partner. Notice should also be given to third parties who may have relied upon the existence of the partnership. Thus, if the registration was on the public record, then the termination should be also. San Francisco provides that when a domestic partnership ends, a domestic partner who has given a copy of the Declaration of Domestic Partnership to a third party must give that party a notice signed under penalty of perjury stating that the partnership has ended. San Francisco further provides that in the event of a failure to give such notice (and also in the event of a failure to give the required notice to the other partner), anyone who suffers a loss may sue to recover actual damages.

The recognition of domestic partnerships also can have a broad societal and legal impact by establishing the legitimacy and acceptability of same sex relationships. Gay activists have been increasingly attempting to achieve various types of rights for a gay family unit.25 Increasing recognition of gay and lesbian domestic partnerships, and, in particular, the increasing adoption of municipal ordinances which permit members of the general public to register their status as domestic partners can only buttress such an argument.

Selected Bibliography

Berger, Domestic Partner Initiatives, 40 DePaul L.Rev. 417 (1991).

Bowman and Cornish, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 Colum. L.Rev. 1164 (1992).

Eblin, Note, Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others), 51 Ohio St. L.J. 1067 (1990).

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Hunter, Homosexuals as a New Class of Domestic Violence Subjects Under the New Jersey Prevention of Domestic Violence Act of 1991, 31 U. Louisville J. Fam. L. 557 (1992). The chief value of this article for purposes of domestic partnership is in Appendix III, which contains some empirical data regarding actual registrations.

Lambda Legal Defense and Education Fund, Recognition of Domestic Partnerships.

Post, The Question of Family: Lesbians and Gay Men Reflecting a Redefined Society, 19 Fordham Urb. L.J. 747 (1992).

Treuthart, Adopting a More Realistic Definition of Family, 26 Gonz. L. Rev. 91 (1990-91).

ENDNOTES

1.This article was originally prepared for presentation at the Spring Meeting, 1994, of the Family Law Section of the American Bar Association. I would like to acknowledge the research assistance of Kirsten Mellors in the preparation of this article.

2.Baehr v. Lewin, 852 P.2d 44 (1993).

3.See Bowman and Cornish, Note, A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances, 92 Colum. L.Rev. 1164, 1177 n.63 (1992).

4.Id. at 1177, n.64.

5.This list of tangible benefits is taken from Berger, Domestic Partner Initiatives, 40 DePaul Law Rev. 417, 417-18 (1991).

6.See Berger, Domestic Partner Initiatives, 40 DePaul Law Rev. 417, 420-22 (1991). See also Bowman and Cornish, Note, A More Perfect Union: A Leqal and Social Analysis of Domestic Partnership Ordinances, 92 Colum. L.Rev. 1164, 1177 n .65 (1992) . Berger, in her article at the above cited pages, also questions the efficacy of contractual arrangements between gay couples as an attempt to formalize their relationship.

On the other hand, some judicial gains have been won. For example, in Braschi v. Stahl Associates, 74 N..2d 201, 543 N.E.2d 49, 544 N..S.2d 784 (1989), the court held that a gay man's partner qualified as a family member under the noneviction provision of New ork City's rent control law.

7. See Comment, Adult Adoption: a "New" Legal Tool for Lesbians and Gay Men, 14 Golden Gate U.L.Rev. 667 (1984)

8.The secondary source I have relied on most heavily is a report of the Lambda Legal Defense and Education Fund, entitled "Recognition of Domestic Partnerships". This report includes a national overview of domestic partnership ordinances, dated November 1993. It also includes lengthy descriptions of some ordinances and orders, as well as the names of contact persons

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and other relevant information. The biggest defect is the absence of descriptive information for the most recently enacted or adopted provisions.

9.The Lambda Fund report lists Minneapolis and West Hollywood in this category.

10. The Georgia Superior Court, Fulton County, has reportedly held Atlanta's Domestic Partnership Ordinances, which extend health insurance coverage to the registered partners of unmarried city employees, violative of Georgia's Municipal Home Rule Act and the state constitution by exceeding the city's authority to deal with the status of individuals; as a consequence, the court enjoined the city from implementing or enforcing the Domestic Partnership Ordinances, but stayed the injunction with regard to the city's accepting registrations under the Domestic Partnership Registry. See McKinney v. Atlanta, as summarized at 20 (BNA) Fam. L. Rptr. 1326 (1994).

11. Some older data is contained in Hunter, Homosexuals as a New Class of Domestic Violence Subjects Under the New Jersey Prevention of Domestic Violence Act of 1991, 31 U. Louisville J. Fam. L. 557, Appendix III (1992).

12. Ann Arbor and Ithaca require that parties declare themselves to be in a relationship of mutual support, caring, and commitment. Berkeley requires that the parties intend to remain as domestic partners indefinitely. Ann Arbor and Berkeley additionally require that the parties declare that they share the common necessities of life. Madison requires that the parties show that they are in a committed relationship. Minneapolis requires that the parties be committed to one another to the same extent as married persons are to each other. San Francisco and New Orleans require that the partners declare that they have an intimate and committed relationship of mutual caring. New ork City requires that they have a close and committed personal relationship.

13.In San Francisco and New Orleans the partners must agree to be jointly responsible for basic living expenses incurred during their domestic partnership. The Lambda Fund Report states that in Berkeley, the parties must be responsible for each other's common welfare, in Ithaca the parties must declare that they are responsible for each other's welfare, and in Minneapolis the partners must be jointly responsible to each other for the necessities of life. These requirements are conditions for the existence of a domestic partnership. The extent to which these declarations and agreements create specific obligations, and to whom, is discussed infra, in the "Legal Ramifications" section.

14.For one of the few published sources discussing the extent to which there have been terminations of registrations, see Hunter, Homosexuals as a New Class of Domestic Violence Subjects Under the New Jersey Prevention of Domestic Violence Act of 1991, 31 U. Louisville J. Fam. L. 557, Appendix III (1992).

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15.For example, Takoma Park, which extends sick and bereavement leave, does not have any formal registration procedure. Apparently, the existence of a domestic partner is left to a case by case determination when an administrative interpretation is needed. The lack of any formal procedure may be appropriate when the only benefit extended is sick and bereavement leave.

16.See Eblin, Note, Domestic PartnershiP Recognition in the WorkPlace: Equitable Employee Benefits for Gay Couples and Others), 51 Ohio St. L.J. 1067, 1077 n.84 (1~90).

17.For a good general discussion of the concerns often voiced about the extension of benefits to domestic partners, see Eblin, Note, Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and others), 51 Ohio St. L.J. 1067, 1081-1085 (1990).

18.On the other hand, that is not to suggest that private employers are immune from such a reaction. For example, a university may have to consider adverse alumni/ae reactions. A private employer may face adverse reaction from customers or even its own employees. Newspaper reports state that when Apple Computer extended bereavement leave to gay and lesbian employees some employees denounced Apple for condoning an immoral or perverse life style.

19. Eblin, Note, Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others), 51 Ohio St. L.J. 1067, 1082 n.133 and accompanying text (1990).

20. Lambda Fund Report.

21.Lambda Fund Report.

22.The Wall Street Journal, on January 25, 1994, stated that Xerox had decided against coverage because of cost. On the other hand, the chairman of Apple Computer was quoted in a different article as having concluded that there was no moral or financial reason for Apple to refuse to extend benefits to domestic partners.

23.Eblin, Note, Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others), 51 Ohio St. L.J. 1067, 1073 n.39 and accompanying text ( 1990 ) .

24.See Eblin, Note, Domestic PartnershiP Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others), 51 Ohio St. L.J. 1067, 1084-85 (1990).

25.See Braschi v. Stahl Associates, 74 N..2d 201, 543 N.E.2d 49, 53, 544 N..S.2d 784 (N 1989) (same-sex couples qualify as family for rent-control purposes, and definition of family "should find its foundation in the reality of family life" rather

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than "fictitious legal distinctions or genetic history"). But see City of Ladue v. Horn, 720 S.W.2d 745 (Mo. Ap. 1986) (upholding zoning law that prohibited cohabitating couple and their children from living in certain neighborhood).

********************

NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW

VOL. 1, ISSUE 1 Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)

DEATH PENALT FOR LESBIANS

by

Victor L. Streib

Professor of Law Cleveland State University

Cleveland, Ohio

If a girl or woman arrested for capital murder happens to be lesbian, how does her lesbianism affect whether she is charged for a capital offense, actually sentenced to death, and finally executed? Is any such impact similar to or separate from the impact of her sex? These and related questions continue to plague me and were the impetus for this rudimentary article. My purpose is to let others know what I think in the hope that together we might begin to frame answers to these questions and to develop better questions. I have only one caveat: We must avoid resort to anecdote and hyperbole as the primary bases for the inquiry if our findings are to be of value.

For the past decade I have researched the treatment of female offenders within various capital punishment systems, both domestic and foreign, historical and current. This topic generally has been neglected by criminological and legal scholars, only recently receiving some preliminary attention.1 My first exploratory paper on this general topic was presented in 1986,2 and I published an overview piece in 1990,3 but my research continues and has far to go.

In addition to trying to identify and understand the general outlines and themes of this phenomenon, I have isolated narrower subtopics within the area of the death penalty for female offenders. This effort has resulted in periodic reports monitoring current death sentencing of females4 and in articles on the death penalty for female juveniles5 and for battered women.6 This article follows in that tradition, reporting what I know, think, and speculate so far concerning the issue of an offender's lesbianism within the context of the death penalty for female offenders.

The narrow goal of this article is to explore all of the

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cases of recently death sentenced female offenders to determine which if any involved evidence or inferences of the offender's lesbianism. Having identified at least a few such cases, they are then examined to determine what effect the offender's lesbianism might have had in the capital punishment process.

This inquiry is not to a point at which carefully crafted hypotheses can be formulated and tested. Neither am I willing just to assume that an offender's lesbianism always is a major factor in her receiving the death sentence, drawing on what is generally known about the intolerance of lesbianism in many parts of our society.7 However, since most death penalty cases occur in the Southeast, an area of the country not well known for tolerance of lesbianism and lesbian lifestyles, my research on this topic has proceeded on the informal working assumption that, all other things being equal, a female offender's lesbianism would be a disadvantage rather than an advantage in the capital punishment process.

BACKGROUND ON DEATH SENTENCES FOR FEMALE OFFENDERS8

Both the female death sentencing rate and the female death row population remain very small in comparison to that for males. Actual execution of female offenders throughout American history is quite rare, with only 511 documented instances beginning with the first in 1632.9 These 511 female executions constitute less than 3% of the total of approximately 18,585 confirmed executions since 1608.10 The last female offender executed was Velma Barfield in North Carolina on November 2, 1984,11 the only female among the 226 offenders executed in the post-Furman v. Georgia12 era (January 1, 1973, to December 31, 1993).13

Female Death Sentences Imposed in the Current Era:

The current American death penalty era began when new death penalty statutes were passed following the Supreme Court's decision in Furman in 1972, which in effect struck down all then- existing death penalty statutes. Sentencing began under the new statutes in 1973 and continues through today.14 Although the constitutionality of these current era statutes was not recognized formally by the United States Supreme Court until 1976 in Gregg v. Georgia15 and actual executions did not begin until 1977,16 the current era of sentencing began in 1973.

Table 1 lists the sentences imposed each year according to the Bureau of Justice Statistics and to my research. A total of ninety-nine female death sentences have been imposed on ninety- two individual female offenders, representing only 2% of the total of about 5,042 death sentences for all offenders. Of the ninety-two females sentenced to death, four were juveniles at the times of their crimes17 and the rest were ages eighteen to sixty-seven at the times of their crimes. Despite some fluctuations particularly in the early years of this period, the death sentencing rate for female offenders was typically about five per year beginning in the 1980s.

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TABLE 1

DEATH SENTENCES IMPOSED UPON FEMALE OFFENDERS,

JANUAR 1, 1973, TO DECEMBER 31, 1993

Total Death Female Death Portion ear Sentences* Sentences of Total

1973 42 1 2.4%

1974 167 1 0.6% 1975 322 7 2.2%

1976 249 3 1.2% 1977 159 1 0.6%

1978 209 4 1.9% 1979 172 4 2.3%

1980 198 2 1.0% 1981 245 3 1.2%

1982 264 5 1.9% 1983 259 4 1.5%

1984 280 8 2.9% 1985 273 5 1.8%

1986 297 3 1.0% 1987 299 5 1.7%

1988 296 5 1.7% 1989 251 11 4.4%

1990 244 7 2.8% 1991 266 6 2.3%

1992 275** 10 3.0% 1993 275** 4 1.5%

Totals: 5,042** 99 2.0%

* Sources of data: U.S. Dept. of Justice, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS

1992 at 673, Table 6.132 (1993); U.S. Dept. of Justice, CAPITAL PUNISHMENT 1992 AT 1

(1993).

**Estimates

In 1989 the annual death sentencing rate of five doubled for reasons unknown. In 1990 and 1991, the sentencing rate seemed to have returned to just above the pre-1989 levels. Then the rate surged to ten in 1992, portending an annual rate again nearly double that of the 1980s. This is apparently about 4% of the death sentences imposed in 1992, suggesting a significant increase in the rate of the death sentencing of female offenders. However, four of these ten female death sentences in 1992 were imposed on the same person (Aileen Wuornos, Florida), leaving only six other female death sentences during 1992. Total female death sentences then returned to normal levels -- four in 1993. In any event, the number of female offenders sentenced to prison death rows each year remains only 0.2% to 0.3% of the approximately 3,700 women sentenced to prison each year.

Of these ninety-nine death sentences for female offenders, only thirty-eight sentences (imposed upon thirty-five females) remain currently in effect (see Table 2 below). One such

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sentence resulted in an execution (Velma Barfield) and the other sixty death sentences were reversed or commuted to life imprisonment. Thus, for the sixty-one death sentences finally resolved (excluding the thirty-eight still in effect and still being litigated), the reversal rate for female death sentences in the current era is over 98% (60/61). Appendix A to this article provides a more detailed listing of name, race, jurisdiction, dates of crimes and sentences, and current status for each female death sentence.18

TABLE 2

STATE-B-STATE BREAKDOWN OF DEATH

SENTENCES FOR FEMALES, 1973-1993

Race of Offender Total Sentencing American Female Rank State White Black Hispanic Indian Sentences

1 Florida 11 2 1 0 14

2 North Carolina 9 2 0 1 12 3 Ohio 3 6 0 0 9

4 Texas 6 1 0 0 7 5 Alabama 4 2 0 0 6

Mississippi 4 2 0 0 6 Oklahoma 5 1 0 0 6

8 California 2 2 1 0 5 Georgia 4 1 0 0 5

Missouri 4 0 1 0 5 11 Indiana 2 2 0 0 4 12 Illinois 1 2 0 0 3

Maryland 1 0 0 2 3 Pennsylvania 1 2 0 0 3 15 Kentucky 2 0 0 0 2

Nevada 1 1 0 0 2 17 Arizona 1 0 0 0 1

Arkansas 1 0 0 0 1 Idaho 1 0 0 0 1

Louisiana 1 0 0 0 1 New Jersey 1 0 0 0 1

South Carolina 1 0 0 0 1 Tennessee 1 0 0 0 1

Totals 67 26 3 3 99

These ninety-nine death sentences for female offenders have been imposed in twenty-three individual states, comprising well over half of the death penalty jurisdictions during this time period. Table 2 lists all death penalty jurisdictions which have imposed death sentences on female offenders since 1973.

As Table 2 indicates, two states (Florida and North Carolina) account for over one quarter of all such sentences. The first ten states have imposed three quarters of female death sentences. These dominant sentencing states range from North Carolina to California and from Texas and Florida to Ohio.

Current Female Death Row Inmates:

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Of the ninety-nine death sentences imposed upon ninety-two female offenders since 1973, only thirty-five females remain on the death rows of fourteen states (see Table 3). These thirty- five female offenders on death row constitute only 1.3% of the total death row population of 2,78520 and only 0.07% of the approximately 50,000 women in prison in the United States.21

TABLE 3

CHARACTERISTICS OF OFFENDERS AND VICTIMS IN FEMALE

DEATH PENALT CASES CURRENTL IN FORCE, DECEMBER 31, 1993

Offenders

Age at Crime Race

Under 21 = 2 (6%) B = 11 (31%) 21-30 = 12 (36%) H = 2 (6%)

31-40 = 11 (33%) W = 22 (63%) 41-50 = 3 (9%) 35 (100%)

51-60 = 4 (12%) 61-70 1 (3%)

33 (100%) Unknown = 2

35

Victims

Age Race Sex

Under 18 = 7 (17%) A = 1 (2%) M = 32 (67%) 18  over = 35 (83%) B = 10 (22%) F = 16 (33%)

42 (100%) H = 3 (7%) 48 (100%)

Unknown = 8 W = 31 (69%) Unknown = 2 50 45 (100%) 50

Unknown = 5 50

Most of the women on death row are white. One fourth were in their forties or older at the time of their crimes, with the total age range remarkably from eighteen to sixty-seven. Over two-thirds of their victims were white and two-thirds were adult males (where these data are known). About one-third of these cases involved the murder of the offender's husband or lover. Several of these female offenders were battered women who killed their batterers or victims chosen by their batterers.

The present ages of these thirty-five female death row inmates range from twenty-one to seventy-three. They have been on death row from six months to nearly twelve years. Despite the statistically high probability (over 98%) that death-sentenced female offenders will never be executed, some of these women have nearly exhausted their appeals. Another execution of a female offender seems likely within the next few years.

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Appendix B to this article sets forth the names of these offenders and some brief details about their crimes and sentences. Multiple sentencing dates mean that the earlier death sentence was reversed but then a new death sentence was imposed.

LESBIANISM AS AN AGGRAVATING OR MITIGATING FACTOR

The current capital punishment process requires guided discretion in choosing between life imprisonment and the death sentence for eligible convicted murderers.22 The primary source of guidance for judges and juries in making this choice is the list of aggravating and mitigating factors in the jurisdiction's death penalty statute.23

The aggravating factors are intended to narrow the pool of all convicted murderers to those particularly deserving of the death penalty.24 Each aggravating factor tends to establish an even more serious characteristic of the murder or a particularly negative characteristic concerning the character and background of the capital defendant. Examples are that the murder occurred during another serious crime such as rape or robbery,25 or that the convicted murderer has committed previous murders.26

Mitigating factors, on the other hand, are intended to provide reasons why the convicted murderer should not be sentenced to death.27. While occasionally referring to characteristics of the murder which make it seem not too horrible, most mitigating factors tend to establish information about the character and background of the defendant that make her seem to be less deserving of the death penalty.28

Although working through this concept of aggravating and mitigating factors, the United States Supreme Court has made it clear that "the sentencing authority has always been free to consider a wide range of relevant material."29 This "wide range" clearly includes socially-condemned aspects of the defendant's character if they are intrinsic to his crime, such as racial hatred and a desire to start a race war.30 However, similar racist views of a defendant are not admissible if not related to the crime. For example, membership in a white racist prison gang (the Aryan Brotherhood) was held inadmissible where both the defendant and his victim were white, leaving the racist views "of no relevance to the sentencing proceeding in this case."31 If the contested character factor is not part of beliefs and associations protected by the First Amendment, it may be more available to prosecutors seeking to use it to counter the defendant's assertions of good character.

Simply put, to the degree to which they address the character and background of the defendant, aggravating factors show her to be more deserving of death and mitigating factors show her to be less deserving of death. No statute's aggravating and mitigating factors expressly mention lesbianism or sexual orientation as an issue to be considered. Since lists of aggravating factors are closed ended,32 presumably no unlisted characteristic (such as lesbianism) can be included. However, lists of aggravating factors are open-ended and defendants have a

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right to introduce all relevant mitigating evidence.33 Therefore, capital defendants would seem to have an opening here to get their lesbianism before the sentencing judge and jury should they wish to do so. However, it is hard to imagine a case in which a capital defense attorney would conclude that informing the judge and jury of the defendant's lesbianism would help convince those sentencers that she is less deserving of death. The inescapable conclusions are that in a typical capital case (1) the prosecutor can't introduce the lesbian factor gratuitously and (2) the defense can but will choose not to do so.

LESBIANS AS MONSTERS

Prosecutors in capital cases ultimately have to get a jury to vote to take a human life -- the defendant's. Prosecutors commonly attempt to finesse this awesome stumbling block by arguing that the defendant is not really human. They will refer to the defendant as an animal and the crimes as monstrous34 The prosecutor's assumption is that a jury will not be as hesitant in concluding that a mad dog must be exterminated as they would be in concluding that a human being must be put to death.

When the capital defendant is a woman, it would appear that sentencing juries are even more reluctant to order death than when the defendant is a man.35 In such cases prosecutors first must defeminize the defendant, trying to show that her crime is more "manly," more like an episode from Bonnie and Clyde than from Arsenic and Old Lace. It would seem that to a typical Southern Baptist jury in a small southern town, an effective means of defeminizing a female capital defendant is to show the jury that she is a lesbian. The more "manly" her sexuality, her dress, and her demeanor, the more easily the jury may forget that she is a woman. In essence, she is defeminized by her sexual orientation and then dehumanized by her crime. The jury is left with a gender-neutral monster deserving of little or no human compassion.

FOUR CASE STUDIES

Ninety-nine death sentences have been imposed upon ninety- two female offenders since 1973.36 While more almost undoubtedly exist, four of these females have been identified either as being lesbians or as having been involved in homosexual acts with other females. The purpose of examining these four cases somewhat closely is to determine (1) how and why the defendant's sexual orientation was introduced into the case, and (2) what role and weight this sexual orientation may have had in resulting in the death penalty for these crimes.

No representation is made that these four cases are the entire population of death-sentenced lesbians or even a representative sample. These four cases simply presented themselves because of the prominent news coverage they received or because the facts of the case involved a lesbian relationship or homosexual act. Since similar lesbian/homosexual dimensions may also exist in other, less obvious cases, no generalizations should be made from these four cases. Examination of these four

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cases is a beginning, not the end of this inquiry.

Janice Buttrum, sentenced September 31, 1981, in Georgia:37

Janice Buttrum (caucasian; age seventeen) and her twenty- eight-year-old husband were the parents of a nineteen-month-old baby and were expecting a second child in a few months. They were living temporarily in a small, inexpensive motel in Dalton, Georgia, as was their victim, a nineteen-year-old woman who had just moved there from her family home in Kenton, Tennessee.

Using the ruse of a sick baby, Buttrum and her husband gained entrance to the victim's motel room. Leaving the baby to crawl around the room, Buttrum assisted her husband as he raped and beat the victim. Following this assault, Buttrum continued to sexually abuse the victim (including cunnilingus) and stabbed her ninety-seven times with a small pocketknife. Assessing the results, the Georgia Supreme Court concluded they "can only be described as butchery and barbarism."38

At separate trials, both Buttrum and her husband were sentenced to death. Her husband subsequently committed suicide by hanging himself in his death row cell, but Buttrum's death sentence was reversed in 1989.39

Buttrum had been sexually abused by her foster parents and had married at age fifteen, but little or no evidence as to her bisexual or homosexual orientation came to light. The sexual acts she imposed upon her female victim as she stabbed her to death obviously were presented as evidence to the jury since they were integral parts of the crimes for which Buttrum was on trial.

While speculative, it seems reasonable to presume that a capital jury in a small town in Georgia would have been shocked by Buttrum's homosexual acts. However, given the otherwise "butchery and barbarous" nature of the homicide, it also seems unreasonable to assume that Buttrum would have been spared the death penalty absent the homosexual acts.

Lafonda Fay Foster, sentenced April 24, 1987, in Kentucky:40

Lafonda Fay Foster (caucasian, age twenty-two) was a drug-addicted prostitute who also had a lesbian relationship with Tina Powell. Over a course of several hours in one evening, Foster and Powell killed five adult victims by shooting them in the head, stabbing them repeatedly, cutting their throats, running over them with a car, and (in one case) burning them up. Foster was sentenced to death but Powell received a life sentence.

Foster had a long history of being battered by men, being extremely emotionally disturbed, being drug addicted, and being violent toward others. Her attorney's strategy for avoiding the death sentence before her small town Kentucky jury was to portray Foster as a victim of battering, violence, and drugs. Although Foster clearly had been the perpetrator of horrible violence, she might be spared if she could also be seen as the victim of

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horrible violence.

However, Foster's sentencing hearing was joined with that of her co-defendant and lover, Tina Powell. Powell's strategy, apparently successful, was to portray Foster as a violent lesbian

who battered Powell into submission. Powell even used the Battered Wife Syndrome in her case to demonstrate the degree to which she was dominated and controlled by Foster. These conflicting defense strategies obviously played into the hands of the prosecutor's presumed efforts to defeminize Foster and to portray her as a brutal, "manly" murderer.

Since Foster and Powell were co-defendants in their joint trial for these several murders, it seems almost unavoidable that the judge and jury would learn of their lesbian relationship. The sexual nature of their relationship seems irrelevant until the sentencing phase, at which Powell raised the battering issue.

Moreover, even absent any presumed discriminatory attitude toward lesbian murderers, it seems that the horrifying facts in this case are likely to have overwhelmed any other issue present.

Ana Cardona, sentenced May 1, 1992, in Florida:41

Ana Cardona, a thirty-year-old Cuban immigrant living in Miami, was convicted of killing her three-year-old son in 1990. The child's body had been found in Miami Beach but remained unidentified for several weeks. The local press pushed the story strongly, dubbing the child "baby lollipops" prompted by the shirt he was wearing when found. The child was greatly undernourished and had been beaten savagely over most of his life, finally dying from blows to the head from a baseball bat.

Cardona always denied abusing her child. Cardona's primary defense was that her lover, Olivia Gonzalez, had repeatedly beaten the child, finally killing him. Cardona claims that she lacked the courage to defend her child and took cocaine to escape from the horror of the beatings. She also produced evidence of her troubled upbringing in Cuba and of the severe emotional impact on her of the death of the victim's father.

Cardona's lesbian lover, Gonzalez, had testified against Cardona in return for a forty-year sentence for second degree murder. Although Gonzalez admitted helping to beat the boy and helping to dump the body in Miami Beach, she apparently was able to place the primary blame for the homicide on Cardona. Apropos of the earlier generic description of the monsterization of capital defendants, Cardona's defense attorney noted: "As this case unfolded, it became clear that Ana Cardona was going to be held up to our community as a monster...."42

It appears likely that any negative effect of Cardona's lesbian relationship with Gonzalez was lost in the overwhelming horror of the mistreatment of the victim. The trial judge concluded that "the long period of time over which this baby was subject to torture, abuse, pain suffering separates this crime

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from all other crimes seen in the Dade County Courthouse within the memory of anyone working in this building."43 Press reports suggested that Cardona was held particularly responsible because she was the boy's mother, so presumably a jury would have been even more concerned to learn of this horrible child abuse in the context of a lesbian relationship. However, nothing indicates that if Cardona's lover had been a man rather than a woman that she would have avoided the death penalty.

Aileen Wuornos, sentenced January 31, 1992,

and May 15, 1992, in Florida:44

The last example is Aileen Wuornos, a thirty-three-year-old caucasian and perhaps the most notorious death row inmate, male or female. Her exploits have not only made all of the national and international print media but also have resulted in a book and a television movie-of-the week. Aileen Wuornos has been accused of seven murders, resulting in the label of serial killer. She has received four murder convictions and four death sentences so far, having pleaded guilty and asked for death sentences in the last three instances.

The state of Florida has characterized Wuornos as an alcoholic and drug-addicted prostitute who began to murder and rob her customers, finally arrested in a biker bar as she was sleeping off a drinking binge. Wuornos characterized these seven instances as acts of prostitution during which her customers became violent and/or raped her, in defense of which she had to shoot them to protect herself. Although Wuornos apparently was alone with her victim's when each of the crimes occurred, she was living with Tyria Moore at the time. Wuornos repeatedly stated that she and Moore originally had a sexual relationship but that it developed into a non-sexual, long-term relationship of living together, sharing finances, etc.

At least from her earliest teens on, Wuornos had endured life as a victim of violence and abuse. Raped and pregnant at age 13, she gave up her baby and then turned to prostitution at age 14. She apparently carried into adulthood the explosive temper she had manifested as a child. While greatly over- simplifying, it was this combination of a history of horrible abuse by men and an explosive temper which may explain in large part her violent reactions toward prostitution customers who abusive toward her.

Wuornos intentionally shot and killed at least four and perhaps seven middle-aged white males under circumstances that made it difficult for judges and juries to believe she acted in self defense. She was irascible and profane during her trials, not only showing no remorse for her acts but also threatening the judge and prosecutor and their families. She was portrayed as a prostitute, a thief, and a drug-addicted drifter. While her lesbian relationship with Moore did come up at her trials since Moore was involved in at least some of the pre-crime or post- crime activities, it seems unlikely that Wuornos's lesbianism was a key factor in her repeatedly being sentenced to death. As for

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the state's desire to portray Wuornos as a monster, her lesbianism was greatly overshadowed by her other personal characteristics.

CONCLUSIONS

It continues to appear that, all other things being equal, the capital punishment system is more reluctant to sentence a female offender to death than it is to sentence a male offender to death. The research so far, although very preliminary, suggests that female offenders tend to lose what ever chivalrous protection that might exist as their crimes are more shockingly violent and as their character and background are less traditionally feminine.

This article probes this second factor to explore the effect of lesbianism on the offender's perceived character and background. The assumption is that evidence or inferences of a capital defendant's lesbianism would be negative as to her character and background and thus more likely to lead to a death penalty rather than life imprisonment. While not being sentenced to death solely or even largely because she is a lesbian, the sense is that lesbianism would be likely to be at least one more nail in her coffin.

Four cases out of the recently-sentenced ninety-two female offenders were identified in which the offender's lesbian relationship or homosexual acts received fairly prominent play at the guilt and/or penalty phases of the capital trials. While an attempt was made to discern the impact of the lesbianism factor, all four cases involved several other factors which may well have overshadowed the lesbianism.

In the Foster and Wuornos cases, the violent deaths of five and seven victims respectively almost undoubtedly dominated all other aspects of the cases. However, in the Buttrum and Cardona cases, only one victim died. Buttrum's victim was raped and stabbed ninety-seven times, so presumable the violence and gore of the crime were dominant. Similarly in Cardona's case, the horribly beaten three-year-old was a most sympathetic victim whose case was championed by the local press. It may be, then, that the violence of the crimes overshadowed any significant effect of the lesbian factor. In any event, it is not obvious that these cases are unusual for death sentences. The exception may be Cardona's case, since the death penalty is fairly rare for mothers who kill their children.45

Despite this absence of clear proof of the disparaging impact of a capital defendant's lesbianism, it continues to seem likely that this theme exists. Perhaps it is best illustrated by considering a trial strategy for a capital defense attorney representing a lesbian offender somewhere in the southeast. Assuming that persuasive proof of her lesbianism can be mounted, is it likely that the defense attorney would want to demonstrate the offender's lesbianism as a positive quality within her character and background that renders her more suitable for life than death? While one hopes the jury would not decide upon death because she is lesbian, it seems unlikely the jury would vote to

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save her life because she is lesbian.

ENDNOTES

1. Elizabeth Rapaport, "The Death penalty and Gender Discrimination," 25 LAW  SOC' REV. 367 (1991); and Elizabeth Rapaport, "Some Questions About Gender and the Death Penalty," 20 GOLDEN GATE U. L. REV. 501 (1990).

2. Victor L. Streib, Discrimination Against Male Offenders in the Imposition of the Death Penalty (invited paper presented at the Annual Meeting of the Association of American Law Schools, New Orleans, La., Jan. 1986). Similarly, my first attempt to deal with the subject of this article was a conference paper: Victor L. Streib, Death Penalty for Lesbians: A Preliminary Inquiry into the Significance of a Capital Defendant's Lesbianism in the Context of the Sentencing of Female Offenders to Death in the United States, 1973-1993 (paper presented at the Annual Meeting of the Law and Society Association, Chicago, Ill., May 1993). This article was based largely upon that earlier paper.

3. Victor L. Streib, "Death Penalty for Female Offenders," 58 U. CIN. L. REV. 845 (1990).

4. These reports have been generated since Aug. 1, 1988. The latest issue is Victor L. Streib, Capital Punishment for Female Offenders: Present Female Death Row Inmates and Death Sentences and Executions of Female Offenders (Jan. 1, 1973, to December 31, 1993) (unpublished report available from author).

5. Victor L. Streib  Lynn Sametz, "Executing Female Juveniles," 22 CONN. L. REV. 3 (1989).

6. Victor L. Streib, "Death Penalty for Battered Women," 20 FLA. ST. U. L. REV. 163 (1992).

7. One article which may be representative of this penchant for exaggeration, in my view, is Victoria A. Brownworth, "Dykes on Death Row," THE ADVOCATE, June 16, 1992. Of signal importance to me in understanding the general phenomenon of the specific impact of law on lesbians has been RUTHANN ROBSON, LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW (1992).

8. Much of the material in this section is taken from Streib, supra, note 4.

9. The leading effort nationally to document each and every lawful execution in the United States and its predecessor colonies and territories has been conducted for a quarter of a century by Watt Espy, Director of the Capital Punishment Research Project, Headland, Alabama 36345. His recent report from which these data are taken is Watt Espy, List of Confirmations, State- by-State, of Legal Executions as of January 1, 1994 (unpublished report available from Capital Punishment Research Project).

10. Id.

-------------------------------END PAGE 116---------------------------------

11. See, e.g., Joseph Ingle, "Final Hours: The Execution of Velma Barfield," 23 LO. L.A.L. REV. 221 (1989); and "Woman Executed in North Carolina," N.. TIMES, Nov. 3, 1984, at 1.

12. 408 U.S. 238 (1972) (declaring unconstitutional several state death penalty statutes which did not provide for adequate procedural safeguards against random and capricious death sentencing).

13. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., DEATH ROW, U.S.A. at 10 (Winter 1993; published in February 1994).

14. Victor L. Streib, supra, note 4. The cutoff date for the analysis in this article is December 31, 1993.

15. 428 U.S. 153 (1976).

16. The first execution in the current era was that of Gary Gilmore in Utah on January 17, 1977. See, e.g., NORMAN MAILER, THE EXECUTIONER'S SONG (1979); and Paul J. Larkin, "The Eighth Amendment and the Execution of the Presently Incompetent," 32 STAN. L. REV. 765 (1980).

17. Victor L. Streib  Lynn Sametz, supra, note 5.

18. While the sources of this information are many, the major sources are the outstanding data gathering effort of the NAACP Legal Defense and Education Fund, Inc. (see supra, note 13) and the equally fine monitoring effort of the National Coalition to Abolish the Death Penalty.

19. Sources of data: U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1991 at 707 (1992); U.S. DEP'T OF JUSTICE, CAPITAL PUNISHMENT 1991 at 1 (1992).

20. DEATH ROW, U.S.A., supra note 13.

21. U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1991 at (1992).

22. See the line of cases established by Gregg v. Georgia, 428 U.S. 153 (1976); Lockett v. Ohio, 438 U.S. 586 (1978); and Eddings v. Oklahoma, 455 U.S. 104 (1982).

23. Lockett v. Ohio, supra, note 22.

24. Gregg v. Georgia, supra, note 22.

25. E.g., N.J. STAT. ANN. sec. 2C-11-3(4)(g) (West Supp. 1992) ("The offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit murder, robbery, sexual assault, arson, burglary or kidnapping....").

-------------------------------END PAGE 117---------------------------------

26. E.g., N.J. STAT. ANN. sec. 2C-11-3(4)(a) (West Supp. 1992) (The defendant has been convicted, at any time, of another murder.").

27. Lockett v. Ohio, supra, note 22.

28. Id.

29. Payne v. Tennessee, 111 S.Ct. 2597, 2606 (1991).

30. Barclay v. Florida, 463 U.S. 939 (1983).

31. Dawson v. Delaware, 112 S.Ct. 1093, 1098 (1992).

32. Gregg v. georgia, supra, note 22.

33. Eddings v. Oklahoma, supra, note 22.

34. See, e.g., Darden v. Wainwright, 477 U.S. 168 (1986).

35. See, e.g., Streib, supra, note 3; but see Rapaport (1991), supra, note 1.

36. Streib, supra, note 4.

37. Material for the Buttrum case was taken largely from Streib  Sametz, supra, note 5, at 32-24.

38. Buttrum v. State, 249 Ga. 652, 657, 293 S.E.2d 334, 340 (1982); cert. denied, 459 U.S. 1156 (1983).

39. Buttrum v. Black, 721 F.Supp. 1268 (N.D.Ga. 1989).

40. Information for the Foster case comes primarily from Foster v. Kentucky, Supreme Court of Kentucky, case #87-SC-356-MR (Dec. 19, 1992); Rapaport (1990), supra, note 1; and telephone conversation with Foster's attorney, Kevin McNally, on May 1, 1992.

41. Information for the Cardona case comes primarily from Patrick May, "Judge Calls Fatal Abuse `Heinous, Cruel Crime'," Miami Herald, Apr. 2, 1992, at 1A; Luisa anez, "Baby Lollipos Killer Sentenced to Electric Chair," Sun-Sentinel (Fort Lauderdale; Broward County; Florida), Apr. 2, 1992, at 1B; and Patrick May, "Mom Begs Judge for Mercy in Baby Lollipops Case," Miami Herald, Apr. 1, 1992, at 3B.

42. May (Apr. 2), supra, note 41, at 17A, col. 4.

43. Id. at 1A, cols. 1-2.

44. Information for the Wuornos case comes primarily from Amended Initial Brief of Appellant, Wuornos v. State, Supreme Court of Florida, Case #79,484 (filed Jan. 26, 1993); MICHAEL RENOLDS, DEAD ENDS (1992); Phyllis Chesler, "Sex, Death  the Double Standard," On The Issues, Summer 1992, at 29; "Roadside Killer Handed 3 More Death Sentences," Miami Herald, May 16,

-------------------------------END PAGE 118---------------------------------

1992, at 5B; "A Case of Sex and Death in Florida," NEWSWEEK, Jan. 20, 1992, AT 4; "Prostitute Sentenced to Death," N.. Times, Feb. 1, 1992, at 1; "Jurors Recommend Death Penalty for Florida Woman Who Killed 7," N.. Times, Jan. 31, 1992, at A8; "Florida Cops Say Seven Men Met Death on the Highway When They Picked Up Accused Serial Killer Aileen Wuornos," People, Feb. 25, 1991, at 44; "Killing Her Way to Fame," TIME, Feb. 18, 1991, at 45; and Ronald Smothers, "Woman Suspected in 7 Killings in Florida is Arrested," N.. Times, Jan. 18, 1991, at A15.

45. See, e.g., Rapaport (1991), supra, note 1.

APPENDIX A

FEMALE DEATH SENTENCES IMPOSED, JANUAR 1, 1973, TO DECEMBER 31, 1993

DATE OF DATE OF CURRENT EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS

1973 Ward, Mamie Lee W N.C. ? 9-?-73 reversed

in 1976

1974 Hunt, Rozell O. AI N.C. ? 6-?-74 reversed

in 1976

1975 Boykin, Margie W N.C. ? 12-?-75 reversed

in 1976 Dodds, Catherine W La. 1-?-75 ?-?-75 reversed

in 1976 Lockett, Sandra B Ohio 1-15-75 4-?-75 reversed

in 1978 Osborne, Alberta W Ohio 12-15-74 6-2-75 reversed

in 1978 Sanders, Janet W Okla. 2-24-75 8-26-75 reversed

(AKA Miller) in 1977

Smith, Rebecca W Ga. 8-31-74 1-30-75 reversed in 1983

Glenn, Mabel B Cal. ? 10-21-75 reversed

in 1979 1976 Brown, Faye B. B N.C. ? 1-?-76 reversed

in 1977

Jacobs, Sonia W Fla. 2-20-76 8-20-76 reversed in 1981

Wernert, Patricia W Ohio 11-18 -75 11-22-76 reversed in 1978

1977 Smith, Benita B Ohio ? 12-?-77 reversed

-------------------------------END PAGE 119---------------------------------

in 1978

1978 Anderson, Mary W Texas 1-3-78 8-29-78 reversed

in 1982?

Barfield, Velma W N.C. 2-1-78 12-2-78 executed 11-2-84

Bracewell, Debra W Ala. 8-15-77 5-17-78 reversed in 1981

Detter, Rebecca W N.C. 6-2-77 9-26-78 reversed in 1979

DATE OF DATE OF CURRENT EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS

1979 Binsz, Michelle W Okla. ? 10-23-79 reversed

in 1984 Burnett, Linda W Texas 6-01-78 3-20-79 reversed

in 1983 Cunningham, Emma W Ga. 1-1-79 10-26-79 reversed

in 1983 Tyler, Shirley B Ga. 10-22-79 12-04-79 reversed

in 1985 1980 O'Bryan, LaVerne W Ky. 7-5-79 9-12-80 reversed

in 1982 Perillo, Pamela W Texas 2-24-80 9-2-80 now on

 11-13-84 death row 1981 Buttrum, Janice W Ga. 9-3-80 8-31-81 reversed

in 1989 Stebbing, Annette W Md. 4-9-80 4-30-81 reversed

in 1985

Thomas, Patricia B Ala. 2-28-81 12-28-81 reversed in 1990

1982 Cannaday, Attina W Miss. 6-3-82 9-23-82 reversed

in 1984 Ford, Priscilla B Nev. 11-27-80 4-29-82 now on

death row Foster, Doris AI Md. 1-29-81 2-8-82 commuted

 4-4-84 in 1987 Smith, Nadean W Okla. 7-4-82 12-29-82 now on

death row

Whittington,Teresa W Ga. 1-2-82 5-7-82 reversed

in 1984 1983 Grant, Rosalie B Ohio 4-1-83 10-21-83 commuted

in 1991

Neelley, Judith W Ala. 9-23-82 4-18-83 now on death row

Summers, Sheila W Nev. 9-14-82 12-20-83 reversed

-------------------------------END PAGE 120---------------------------------

in 1986

oung, Sharon W Ohio 6-12-83 9-30-83 reversed in 1986

DATE OF DATE OF CURRENT EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS

1984 Foster, Doris AI Md. 1-29-81 4-4-84 commuted

 2-8-82 in 1987

Hendrickson, Pat. W Ark. 3-10-83 4-13-84 reversed

in 1985 Jackson, Andrea B Fla. 5-16-83 2-10-84 now on

 2-21-92 death row Moore, Marie W N.J. 1- -83 11-19-84 reversed

in 1988 Perillo, Pamela W Texas 2-24-80 11-13-84 now on

 9-2-80 death row Tucker, Karla W Texas 6-13-83 4-25-84 now on

death row Williamson, Celia W Miss. 3-23-82 3-14-84 reversed

in 1987 Windsor, Karla W Idaho 9-6-83 2-28-84 reversed

in 1985

1985 Beets, Betty W Texas 8-6-83 10-14-85 now on

death row

Brown, Debra B Ohio 7-13-84 6-18-85 commuted  6-23-86 in 1991

Buenoano, Judi W Fla. 9-16-71 11-26-85 now on

death row

Houston, Judy W Miss. 6-03-84 11-30-85 reversed

in 1988 Thacker, Lois W Ind. 11-03-84 06-27-85 reversed

in 1990 1986 Brown, Debra B Ind. 6-18-84 6-23-86 now on

 6-18-85 death row

Cooper, Paula B Ind. 5-14-85 7-11-86 reversed in 1989

Owens, Gaile W Tenn. 2-17-85 1-15-86 now on

death row 1987 Caillier, Carla W Fla. 11-20-86 3-19-87 reversed

in 1988

Casteel, Dee Dyne W Fla. 8-20-83 9-16-87 reversed in 1990

-------------------------------END PAGE 121---------------------------------

Cox, Sue W N.C. 7-12-86 10-30-87 reversed

in 1992 Dudley, Kaysie W Fla. 9-30-85 1-27-87 reversed

in 1989

Foster, Lafonda W Ky. 3-9-86 4-24-87 reversed

in 1991

DATE OF DATE OF CURRENT EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS

1988 Green, Elizabeth B Ohio 1-4-88 7-11-88 commuted

in 1991 Haney, Judie W Ala. 1-1-84 11-18-88 now on

death row Newton, Francis B Texas 4-7-87 11-17-88 now on

death row Wacaser, Nila W Mo. 8-28-87 5-31-88 reversed

in 1990 Walker, Altione W Ala. 3-31-88 12-15-88 reversed

in 1992

1989 Allen, Wanda B Okla. 12- -88 4-26-89 now on

death row

Balfour, Susie B Miss. 10-7-88 10-14-89 reversed

in 1992 Coffman, Cynthia W Cal. 11-7-86 8-30-89 now on

death row

Harris, Louise B Ala. 3-11-88 8-11-89 now on death row

Jones, Patricia W Okla. 4- -88 12-7-89 now on

death row Lampkin, Beatrice B Ohio 11-4-88 4-26-89 commuted

in 1991 Landress, Cindy W Ind. 4-23-88 6-26-89 reversed

in 1992

Plantz, Marilyn W Okla. 8- -88 3-31-89 now on

death row Rivers, Delores B Pa. 1-30-88 3-16-89 now on

death row

Stager, Barbara W N.C. 2-1-88 5-19-89 reversed in 1991

Twenter, Virginia W Mo. 5-4-88 1-6-89 reversed

in 1991 1990 Butler, Sabrina B Miss. 4-11-89 3-14-90 reversed

-------------------------------END PAGE 122---------------------------------

in 1992

Hunt, Deidre W Fla. 10-20-89 9-13-90 reversed

in 1992 Jennings, Patricia W N.C. 9-19-89 11-5-90 now on

death row MaHaley, Marilyn W N.C. 3-20-90 12-17-90 reversed

in 1992 McDermott, Maureen W Cal. 4-28-85 6-15-90 now on

death row

Moore, Blanche W N.C. -89 11-16-90 now on

death row

Smith, Rebecca W S.C. 7-17-89 12-10-90 reversed in 1992

(continued) DATE OF DATE OF CURRENT EAR OFFENDER'S NAME RACE STATE CRIME SENTENCE STATUS

1991 Copeland, Faye W Mo. 1986-88 4-27-91 now on

death row

Gay, vette B N.C. 5-30-90 8-10-91 reversed in 1993

Isa, Maria H Mo. 11-6-89 12-19-91 reversed

in 1993 Milke, Debra Jean W Ariz. 12-2-89 1-18-91 now on

death row

Smith, Geraldine B Ill. 6-?-87 2-20-91 now on death row

Williams, Dorothy B Ill. 7-31-89 4-18-91 now on death row

1992 Alfaro, Maria H Cal. 6-15-90 7-14-92 now on

death row

Cardona, Ana H Fla. 11-2-90 4-1-92 now on death row

Garcia, Guinevere W Ill 7-24-91 10-9-92 now on death row

Hill, Doneta B Pa. 6-20-90 4-9-92 now on  3-24-91 death row

Jackson, Andrea B Fla. 5-16-83 2-21-92 now on

 2-10-84 death row Phillips, Shirley W Mo. 10-?-89 4-6-92 now on

death row Wuornos, Aileen W Fla 12-1-89 1-31-92 now on

5-24-90 5-15-92 death row

7-30-90 5-15-92 9-11-90 5-15-92

-------------------------------END PAGE 123---------------------------------

1993 Ballenger, Vernice W Miss. 7-10-83 1-13-93 now on

death row Larzelier, Virginia W Fla. 3-8-91 5-11-93 now on

death row O'Donnell, Kelly W Pa. ? 7-1-93 now on

death row Thompson, Catherine B Calif. 6-14-90 6-10-93 now on

death row

APPENDIX B

CASE SUMMARIES FOR CURRENT FEMALE DEATH ROW INMATES, DECEMBER 31, 1993

ALABAMA

Haney, Judy: White; age 32 at crime and now age 42 (DOB 6-29-

51); murder (hired killer) of her white husband in Talladega County on 1-1-84; sentenced on 11- 18-88.

Harris, Louise: Black; age 34 at time of crime and now age 40 (DOB 6-16-53); murder (hired killer) of her black husband in Montgomery County on 3-11-88; sentenced on 8- 11-89.

Neelley, Judith Ann: White; age 18 at time of crime and now age

29 (DOB 6-7-64); kidnapping and murder of white female age 13 in DeKalb County on 9-28-82; sentenced on 4-18-83.

ARIZONA

Milke, Debra Jean: White; age 25 at crime and now age 29 (DOB: 3-10-64); murder of white male age 5 (her son) in Maricopa County on 12-2-89; sentenced on 1-18-91.

CALIFORNIA

Alfaro, Maria del Rosio (Rosie): Hispanic; age 18 at crime and now age 21; burglary, robbery and murder of Hispanic girl age 9 in Anaheim on 6-15-90; sentenced 7-14-92.

Coffman, Cynthia: White; age 24 at crime and now age 31 (DOB 1- 19-62); murder of white female age 20 in San Bernadino County on 11-7-86; sentenced on 8-30-89.

McDermott, Maureen: White; age 37 at crime and now age 46 (DOB 5-15-47); murder of white male age 27 in Van Nuys (Los Angeles County) on 4-28-85; sentenced on 6-8-90.

Thompson, Catherine: Black; age unknown; murder (hired killer) of her husband on 6-14-1990; sentenced on 6-10-1993.

FLORIDA

-------------------------------END PAGE 124---------------------------------

Buenoana, Judias V. (AKA Judy Ann Goodyear): White; age 28 at crime and now age 50 (DOB 4-4-43); arsenic murder of white husband in Orlando on 9-16-71; sentenced on 11-26-85.

Cardona, Ana: Hispanic (Cuban); age 30 at crime and now age 33; murder of son age 3 in Miami Beach on 11-2-90; sentenced on 4-1- 92.

Jackson, Andrea Hicks (aka Felice): Black; age 25 at crime and now age 35 (DOB 2-26-58); murder of black male police officer age 28 in Jacksonville on 5-16-83; sentenced on 2-10-84; reversed in July 1989; resentenced on 2-21-92.

Larzelere, Virginia: White; age 38 at crime and now age 41 (DOB 12-27-52); murder of white male (her husband) about age 40 in Edgewater near Daytona Beach on 3-8-91; sentenced on 5-11-93.

Wuornos, Aileen: White; age 33 at crime and now age 37 (DOB: 2- 29-56); murder of white male age 51 in Volusa County near Datona Beach on 12-1-89; sentenced 1-31-92; murder of white male age 43 in Citrus County on 5-24-90, white male age 50 in Volusa County on 7-30-90, and white male age 56 in Marion County near Ocala on 9-11-90; 3 additional death sentences imposed on 5-15-92.

ILLINOIS

Smith, Geraldine: Black, age 39 at crime and now age 45; hired man to kill her lover's wife (black female, age 37) in Chicago in June 1987; sentenced on 2-20-91.

Williams, Dorothy: Black, age 35 at crime and now age 39; robbery and murder of black female age 97 in Chicago on 7-31-89; sentenced on 4-18-91.

Garcia, Guinevere: White, age 32 at crime and now age 34; murder of Hispanic male (her husband) age 60 on 7-24-91 in Du Page County; sentenced on 10-9-92.

INDIANA

Brown, Debra Denise: Black; age 21 at crime and now age 31 (DOB 11-11-62); murder of black female age 7 in Gary on 6-18-84; sentenced on 6-23-86.

MISSISSIPPI

Ballenger, Vernice: White; age 55 at crime and now age 56; arson and murder of white female age 75 in Leake County on 7-10-83; sentenced on 1-13-93.

MISSOURI

Copeland, Faye: White; age 67 at crime and now age 73; murder of four white male adults in Livingston County from 1986 through 1988; sentenced on 4-27-91.

Phillips, Shirley Jo: White; age 53 at crime and now age 57;

-------------------------------END PAGE 125---------------------------------

murder of white female age 66 in Springfield (Greene County) in Oct. 1989; sentenced on 4-6-92.

NEVADA

Ford, Priscilla: Black; age 51 at crime and now age 64 (DOB 2- 10-29); murder of 3 white females and 3 white males in Reno on 11-27-80; sentenced on 4-29-82.

NORTH CAROLINA

Jennings, Patricia JoAnn [Wells]: White; age 47 at crime and now age 51 (DOB: 8-24-42); murder of white male age 77 (her husband) in Wilson County on 9-19-89; sentenced on 11-5-90.

Moore, Blanche [Taylor]: White; age 56 at crime and now age 60 (DOB: 6-?-33); murder of white male adult (her boyfriend) in Alamance County in late 1989; sentenced on 11-16-90.

OKLAHOMA

Allen, Wanda Jean: Black; age 29 at crime and now age 34 (DOB 8- 17-59); murder of female adult in Oklahoma County in December 1988; sentenced on 4-26-89.

Jones, Patricia: White; age 36 at crime and now age 42; murder in Oklahoma County in April, 1988; sentenced on 12-7-89.

Plantz, Marilyn Kay: White; age 27 at crime and now age 33 (DOB 10-19-60); murder of white male adult (her husband) in Oklahoma County in August, 1988; sentenced on 3-31-89.

Smith, Lois Nadean: White; age 41 at crime and now age 53 (DOB 9-12-40); murder of white female adult in Gans (Sequoia County) on 7-4-82; sentenced 12-29-82.

PENNSLVANIA Hill, Doneta: Black; ages 23 and 24 at crimes and now age 26; murders of Asian male age 72 in Philadelphia on 6-20-90 and of Black male age 21 in Philadelphia on 3-24-91; sentenced on 4-9- 92.

O'Donnell, Kelly: White; sentenced on 7-1-93.

Rivers, Delores: Black; age 34 at crime and now age 40 (DOB 12- 25-53); murder of female age 74 in Philadelphia on January 30, 1988; sentenced on 3-16-89.

TENNESSEE

Owens, Gaile Kirksey: White; age 32 at crime and now age 41 (DOB 9-22-52); hired someone to murder husband in Shelby County on 2-17-85; sentenced on 1-15-86.

TEXAS

-------------------------------END PAGE 126---------------------------------

Beets, Betty Lou: White; age 46 at crime and now age 56 (DOB 3- 12-37); murder of adult white male (husband) in Athens (Henderson County) on 8-6-83; sentenced on 10-14-85.

Newton, Francis Elaine: Black; age 21 at crime and now age 28 (DOB 4-12-65); murder of husband (black male age 23), son (black male age 7), and daughter (black female age 2) in Houston on 4-7- 87; sentenced on 11-17-88.

Perillo, Pamela Lynn: White; age 24 at crime and now age 38 (DOB 12-3-55); robbery and murder of white (?) male age 26 in Houston on 2-24-80; sentenced on 9-2-80 and 11-13-84.

Tucker, Karla Faye: White; age 23 at crime and now age 34 (DOB 11-18-59); murder of white female age 32 and white male age 27 in Houston on 6-13-83; sentenced on 4-25-84.

*********************

NATIONAL JOURNAL OF SEXUAL ORIENTATION LAW

VOL. 1, ISSUE 1 Mary Sylla, editor (mmsylla@gibbs.oit.unc.edu)

Note

Baehr v. Lewin: Will Equal Protection Lead to the End of Prohibitions on Same-Sex Marriages?

(Editor's note: On June 22, 1994, after the submission of this piece, the governor of Hawaii signed into law a bill which prohibits same-sex marriage in Hawaii by defining marriage as existing only between two people of opposite sexes. The text of the law chastises the Hawaii Supreme Court for its decision in Baehr v. Lewin, saying the decision encroached on the legislature's law-making function and infringed on the separation of powers of the respective branches of state government. Though this development clearly changes the circumstances of its reconsideration, Baehr v. Lewin is still scheduled to be reheard by the lower court in April 1995.)

I. Introduction

In 1993 the Hawaii Supreme Court broke new ground in the controversial area of homosexual rights in the family law context.1 In Baehr v. Lewin,2 the Hawaii Supreme Court held that a state statute barring same-sex marriages is presumed unconstitutional unless the state can show that "(a) the statute's sex based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgment of ... constitutional rights".3

This Note will examine the impact of this decision in Hawaii and in other states. First, this Note will examine the regulation of marriage in the United States,4 and it will review the history of attempts at judicial recognition of same-sex marriages.5 Next, this Note will examine the facts in Baehr6 and the Hawaii Supreme Court's analysis,7 concluding that the Hawaii Supreme Court correctly decided the case.8 Finally, this Note will examine the impact of this decision,

-------------------------------END PAGE 127---------------------------------

which may include attempts at amending the Hawaii State Constitution.9 Undoubtedly, the Baehr decision will generate heated debate in Hawaii.10 It will also affect other states confronting the issue of same-sex marriage,11 and it may in fact promote extensive litigation in other states before the waters clear on the issue of same-sex marriage.12

II. BACKGROUND

The regulation of marriage has traditionally been a function reserved for the states.13 In the state of Hawaii, "the business of marriage creation has been codified for more than a century"14 and "common law" marriages are no longer recognized.15

The United States Supreme Court, however, has placed bounds on state control of marriage, primarily by holding that marriage is a fundamental right.16 The Supreme Court first characterized the right of marriage as fundamental in Skinner v. Oklahoma ex rel. Williamson.17 In Skinner, where a state statute permitting involuntary sterilization of criminals was held invalid, the Supreme Court stated that "[m]arriage and procreation are fundamental to the very existence and survival of the human race."18

Because marriage is a fundamental right, regulations that interfere with the exercise of that fundamental right are subject to a higher level of scrutiny.19 In Zablocki v. Redhail, the Supreme Court invalidated a state statute which interfered "directly and substantially with the right to marry"20 because the statute did not satisfy the "strict scrutiny" standard.21

The Supreme Court has generally contemplated marriage as an institution which involves members of the opposite sex,22 as in Skinner, where the Court linked the right to marry to the right of procreation.23 The Supreme Court has also noted the historic and traditional nature of marriage and family, again implicitly contemplating marriage as an institution involving the union of man and woman.24

However, the Supreme Court has not always allowed states to limit marriage to a certain traditional configuration. In a 1967 case, Loving v. Commonwealth of Virginia,25 the Virginia courts determined that interracial marriage could not exist because such a union was intrinsically unnatural, and because "it had never been the custom of the state to recognize mixed marriages, marriage always having been construed to presuppose a different configuration."26 The U.S. Supreme Court reversed the Virginia courts.27 Holding that racial classifications are subject to the "most rigid scrutiny,"28 the Supreme Court found that Virginia's anti-miscegenation statute29 violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.30

The Supreme Court has also indicated that a higher level of scrutiny might be applied to statutory sex-based classifications.31 In Frontiero v. Richardson, the Supreme Court held that a federal statute which accorded disparate treatment to male and female military employees was subject to a higher level of scrutiny.32

Likewise, on the state level, the Supreme Court of Hawaii has held that laws which classify on the basis of a suspect

-------------------------------END PAGE 128---------------------------------

category or impinge upon fundamental rights are subject to a higher level of scrutiny.33 In a case dealing specifically with a sex-based classification, Holdman v. Olim,34 the Hawaii Supreme Court noted that it could apply a higher level of scrutiny to sex-based classifications.35 However, in Holdman, which involved a challenge to a prison's special dress requirement for female visitors, the Hawaii Supreme Court did not decide the exact level of scrutiny to apply to sex-based classifications because the special dress requirement survived even under the strict scrutiny test.36

Despite the higher level of scrutiny applied to interference with fundamental rights such as marriage, and also to statutory sex-based classifications, no court until Baehr found a prohibition on same-sex marriage to be unconstitutional.37 A variety of important, yet unsuccessful challenges to prohibitions on same-sex marriage were brought in the early 1970's.38

In the first major decision dealing with the issue, Baker v. Nelson,39 two males filed suit after a courthouse clerk declined to issue them a marriage license because they were of the same sex.40 The Minnesota Supreme Court first held that the plain language of the state marriage statute precluded same-sex marriage because marriage by definition involves a man and a woman.41 The court then rejected the petitioners' constitutional claims, holding that the statute did not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment.42

In reaching the conclusion that there were no constitutional violations, the Minnesota Supreme Court examined both Skinner v. ex rel. Williamson43 and Griswold v. Connecticut.44 The Court noted that those cases did not support the contention that a prohibition of same-sex marriage is invidiously discriminatory.45 The court distinguished Loving v. Virginia,46 concluding that "there is a clear distinction between a marital restriction based merely upon race and one based on the fundamental difference in sex."47

Approximately two years after the Baker decision, the Kentucky Court of Appeals, in Jones v. Hallahan,48 faced a challenge by two females who were refused a marriage license by a courthouse clerk.49 In Jones, the Kentucky Court of Appeals held that no constitutional issues were involved because marriage by definition involves a man and a woman, thus the appellants were incapable of entering into marriage.50 The court stated that "the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage."51

The Washington Court of Appeals faced the next major case to deal with the issue of same-sex marriage in Singer v. Hara.52 Two males who were denied a marriage license filed a motion to show cause, which was subsequently denied by the trial court.53 On appeal, the appellants alleged violations of the Equal Rights Amendment (ERA) to the Washington State Constitution as well as violations of the United States Constitution.54 The Washington Court of Appeals affirmed the denial of the marriage license,

finding first that the plain language of the marriage statute showed that the legislature had not authorized same-sex marriages.55 The court next found that there was no violation of the state's ERA.56 Using the logic of the previous same-sex

-------------------------------END PAGE 129---------------------------------

marriag e cases,57 the court reasoned that the appellants were not being discriminated against on the basis of sex, they were excluded from marrying solely because of the definition of marriage, which the court defined as involving two people of the opposite sex. 58

Finally, the Singer court noted that for purposes of the Fourteenth Amendment, legislative acts which discriminate on the basis of sex require strict judicial scrutiny.59 However, because the court had already held in connection with its ERA discussion that the statute did not discriminate on the grounds of sex, strict judicial scrutiny was held not applicable here.60 The statute instead had to meet the rational basis standard.61 The court stated that "there exists a rational basis for the state to limit the

definition of marriage to exclude same-sex marriages."62 After Singer, there have been occasional unsuccessful forays into the courts by same-sex couples seeking to be married.63 Same-sex couples have also, with mixed success, sought affirmance of other rights through the judicial system.64 However, no sta te had recognized same-sex marriage, and courts consistently held that statutes prohibiting same-sex marriage were valid.65

III. Analysis A. The Facts of The Baehr Case

On or about December 17, 1990, three same-sex couples66 filed applications for marriage licenses with the Hawaii Department of Health (DOH).67 The DOH denied the marriage license applications on the ground that each couple was of the same sex and any union between members of the same sex was not a valid marriage under the applicable Hawaii law - Hawaii Revised Statute (HRS) Y$572-1.68

On May 1, 1991, the 3 couples joined in a suit against the DOH seeking, inter alia, a declaration that HRS Y$572-1 was unconstitutional as it was construed and applied by the DOH.69 The couples averred that the DOH's interpretation and application of HR S Y$572-1 to deny same-sex couples access to marriage licenses violated their rights to privacy, equal protection of the laws, and due process of law as guaranteed by the Hawaii Constitution.70 The Hawaii Circuit Court granted the DOH's motion for judgment on the pleadings and dismissed the complaint with prejudice, holding that the DOH was entitled to judgment as a matter of law.71

Reversing the circuit court in a plurality opinion,72 the Hawaii Supreme Court held that sex is a suspect category for purposes of equal protection analysis under the Hawaii Constitution,73 thus HRS Y$572-1, which establishes a sex-based classification,

is subject to the "strict scrutiny" test.74 Accordingly, HRS Y$572-1 is presumed unconstitutional unless the DOH can show that the statute satisfies "strict scrutiny".75 The Hawaii Supreme Court then vacated and remanded the case for proceedings consis

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tent with its holding.76 B. Narrative Analysis Plurality Opinion

To reach this ground-breaking holding, the Hawaii Supreme Court divided its analysis into two parts. First, the court examined the couples' allegation that HRS Y$572-1 violated their right to privacy as guaranteed by the Hawaii Constitution.77 Second, t he court examined the couples' allegation that HRS Y$572-1 violated their rights under the Equal Protection Clause of the Hawaii Constitution.78

The court noted first that the right to privacy guaranteed by the Hawaii Constitution encompasses at least all of the fundamental rights within the privacy protection of the U.S. Constitution.79 Thus, the court looked to the scope of the right to priva cy guaranteed by the U.S. Constitution.80 In particular, the court examined two U.S. Supreme Court cases, Skinner81 and Zablocki.82 The Hawaii Supreme Court noted that while both cases recognized a fundamental right to marriage subsumed within the ri ght to privacy, both cases also seemed to contemplate marriage as a union between a man and woman.83 Thus, the court admitted that it was being asked to recognize a new fundamental right, the fundamental right of same-sex couples to marry.84

To determine fundamental rights, the court stated that it must look "to the 'traditions and [collective] conscience of our people'".85 Noting that a right to same-sex marriage was not rooted in the traditions and collective conscience of the people,

the court concluded that it would not create a new fundamental right to same-sex marriage arising from the right to privacy.86 However, the court mentioned that the applicant couples were not without a potential remedy because the court still had to co nsider the Equal Protection Clause of the Hawaii Constitution.87

The Hawaii Supreme Court then engaged in a detailed discussion of the application of the state Equal Protection Clause to HRS Y$572-1.88 The court first noted that the regulation of marriage is within the province of a state's powers,89 and that various rights and benefits are associated with legally sanctioned marriages.90 The court also explained that the Equal Protection Clause of the Hawaii Constitution provides further protection than that of the U.S. Constitution because the Hawaii Constitution

explicitly prohibits state-sanctioned discrimination on the basis of sex.91

Next, the Hawaii Supreme Court distinguished major cases from other jurisdictions which dealt with the issue of same-sex marriage.92 First, the court noted that Baker v. Nelson93 and De Santo v. Barnsley94 were not relevant. Baker was considered irrelevant because it only considered federal constitutional issues, and did not involve any state constitutional issues.95 De Santo was considered irrelevant because it dealt with the issue of state recognition of "common-law marriage", which was not an issue in Baehr.96

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The court then entered into an important phase in its analysis, concerning the definition of marriage. The DOH had argued that the couples could not be married because marriage by definition involved partners of the opposite sex.97 This was the same logic used in Jones v. Hallahan98 and Singer v. Hara.99 The Hawaii Supreme Court determined the logic of this argument to be "circular and unpersuasive."100 The court noted the parallel between the DOH's limiting marriage to a certain traditional definition and the Virginia courts in Loving claiming that interracial marriage could not exist because mixed marriages were never the custom, and because marriage was always "construed to presuppose a different configuration."101 That type of reasoning was rejected by the United States Supreme Court in Loving.102 The Hawaii Supreme Court stated that the United States Supreme Court's rejection of such reasoning in the context of interracial marriage also discredits the reasoning of the DOH and the Jones and Singer courts in the context of same-sex marriages.103

Finally, the Hawaii Supreme Court determined that, as a sex- based classification, HRS Y$572-1.104 should be subject to strict scrutiny. The Court noted that it applies strict scrutiny to laws classifying on the basis of suspect categories or impinging upon fundamental interests.105 Becau se "HRS Y$572-1, on its face and as applied, regulates ... on the basis of the applicants' sex106 ... it establishes a sex-based classification."107 The court next looked at Holdman,108 a prior case which dealt with a sex-based classification. The Court noted that in Holdman, it determined that sex-based classifications were subject to some form of heightened scrutiny, arguably strict scrutiny.109 Furthermore in Holdman, the Hawaii Supreme Court looked to the United States Supreme Court decision in Frontiero v. Richardson,110 where the Court implied that if the Equal Rights Amendment had been part of the United States Constitution, the United States Supreme Court would have subjected statutory sex-based classifications to strict scrutiny.111 Thus, because the Hawaii Constitution contains an Equal Rights Amendment,112 the Hawaii Supreme Court determined that statutory sex-based classifications are subject to the strict scrutiny test.113 Accordingly, HRS Y$572-1 is presumed to be unconstituti onal, unless the DOH can show on remand that "(a) the statute's sex based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgment of the applicant couples' constitutional rights".114 Concurrence

The concurrence agreed that the circuit court erroneously granted the DOH's motion for judgment on the pleadings.115 However, noting that this decision turned on a sex-based classification, the concurrence asserted that genuine issues of material fact remained regarding aspects of a person's "sex" that

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are "biologically fated."116 Citing to various news articles discussing evidence of a genetic role in sexual orientation,117 the concurrence stated that if differences in sexual orientation are "biologic ally fated", then the state is discriminating by permitting opposite-sex marriages and not permitting same-sex marriages.118 However, if a person's sexual orientation is not "biologically fated", then the state may legitimately prohibit same-sex marriage s.119 Thus, the concurrence believed that there should be findings of fact to determine the biological nature of sexual orientation.120 Dissent

The dissent agreed with the plurality that the appellants do not have a fundamental right to same-sex marriage arising out of the Hawaii Constitution's right to privacy.121 However, the dissent disagreed with the plurality's equal protection analysis and suggested that the appellants should address their claims to the legislature.122

The dissent first criticized the plurality's use of Loving to conclude that the appellants have a civil right to marriage.123 According to the dissent, because Loving did not involve a same-sex couple, it is not proper authority for determining that same-sex marriage should be given civil right status.123

The dissent next noted that while Zablocki established constitutional limits on a state's right to regulate marriage, it does not limit a state's right to prohibit same-sex marriages.125

Essentially the dissent argued that the earlier same-sex marriage

cases were controlling precedent.126 In particular, the dissent pointed to the reasoning that appellants could not be married because marriage by definition involves members of the opposite sex.127

The dissent next argued was HRS Y$572-1 does not establish a suspect class based on gender,128 nor does it discriminate on the basis of gender because males and females are treated alike under the statute.129 The statute treats unmarried persons

equally because a male cannot marry another male, and a female cannot marry another female. Gender discrimination, according to the dissent, is when one gender is given preference over the other gender.130 Thus, the dissent stated that the statute shoul d not be subjected to the "strict scrutiny" standard, but instead should be subjected to the "rational basis" test.131 Furthermore, the dissent noted that the state of Washington has an ERA identical to Hawaii's ERA, yet the Singer court found that a pro hibition on same-sex marriage did not discriminate on account of sex.132 The dissent also argued that HRS Y$572-1 should not be presumed unconstitutional, claiming that the general rule is that every statute is presumed to be constitutional.133

Finally, the dissent stated that the appellants should address their claims to the legislature because this decision can have "repercussions on the finances and policies of the

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governments and industry of [Hawaii and other states]."134 The dissent noted

that the legislature "can express the will of the populace in deciding whether such benefits should be extended to persons in the appellants' circumstances."135 C. Critical Analysis

The first half of the court's analysis, holding that there is no fundamental right to same-sex marriage arising from the right to privacy,136 found agreement among all of the court.137 The basic premise that same-sex marriag e is not rooted in the traditions of the people certainly applies to modern Americans, as there is not a long-standing American tradition of same-sex marriage.138 The second half of the court's opinion, its equal protection analysis,139 deserves furthe r consideration. The essential difference of opinion between the plurality and the dissent revolved around whether or not HRS Y$572-1 establishes a suspect classification on the basis of sex.

The Hawaii Supreme Court would have created less controversy by deciding not to apply strict-scrutiny in this case. It had to determine the constitutionality of a statute that on its face classifies according to sex.140 In light of the Supreme Court's reasoning in Loving, it was clear that equal application of the statute does not mean that the statute affords equal protection.141 Thus the Hawaii Supreme Court was faced with a statute that classifies according to sex and that does not necessarily accord equal protection. The determinative issue therefore was what level of scrutiny to apply to such a statute. As discussed above, the court noted that under Hawaii precedent, a higher level of scrutiny is ap plied to sex-based classifications. Furthermore, because the Hawaii Constitution contains an Equal Rights Amendment, applying strict scrutiny would be in accord with the United States Supreme Court's reasoning. Thus, the court's decision to apply strict s crutiny is sound, as it is based on state precedent and Supreme Court reasoning.

It is worth noting however that the court never directly answered the question of whether marriage by definition precludes same-sex couples from marrying. The dissent emphasized the idea that marriage by definition means only a union of man and woman.142 However, the plurality did not answer that question because the question that the court was required to answer was whether or not the Equal Protection Clause of the Hawaii Constitution was implicated by a prohibition on same-sex marriages. By applying Loving's analysis of race-based classifications to an analysis of sex-based classifications, the plurality answered the equal protection question and essentially side-stepped the issue of the

definition of marriage. The dissent argued that the issue of same-sex marriage is better left to the legislature.143 The plurality responded that it was not legislating but was merely performing its proper

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role: reviewing the constitutionality of existing legislation.144

Finally, the concurrence's preoccupation with the biological nature of a person's sexual orientation was not relevant to the court's equal protection analysis.145 The plurality's analysis focused on a sex-based classification, not a sexual orientation classification. As the plurality noted, the biological nature of person's sexual orientation does not affect a determination of whether state regulation of marriage on the basis of the applicants' sex denies the applicants equal protection of the laws.146 IV. IMPACT

This decision has sparked debate in Hawaii147 and generated nationwide publicity.148 In Hawaii, certain groups are planning to circulate petitions to amend the state constitution.149 The court's analysis, and its conclusion that a prohibition of same-sex marriage is subject to strict scrutiny, may influence other state courts confronting the issue.150 Its analysis will be especially relevant in those states that, like Hawaii, have an Equal Rights Amendment in their state constitution.151

The full impact of this case cannot be assessed until the result on remand is known. It seems likely that the state will be unable to meet its burden, and thus the statute will be found unconstitutional.152 Daniel Foley, the attorney who represented the couples, said "the state should find it difficult to meet any compelling interest."153 Hawaii Deputy Attorney General Sonia Faust agreed that the test is difficult to meet but, she said "the case is not over", and she is researching rulin gs that permitted regulations affecting fundamental rights.154

If the state is unable to meet its burden, this decision could affect the whole nation.155 According to Daniel Foley, there are 2 possible scenarios: more liberal state courts will grant "full faith and credit" to marriages ratified in Hawaii, while more conservative states may resist recognizing same-sex marriages, possibly citing to the Supreme Court's upholding of sodomy statutes on Federal Constitutional grounds.156 The public will probably have a mixed response towards recognition of Hawaiian same-sex marriages in other states,157 and undoubtedly many states will resist recognizing Hawaiian same-sex marriages.158 The result will be extensive litigation159 and public debate.160 Thus, although this case involved only state constitutional issues , its effect may be far-reaching as other states must confront the issue of recognizing Hawaiian same-sex marriages. Eventually, the conflict created by this state constitutional case may eventually force the United States Supreme Court to resolve the is sue of nationwide recognition of same-sex marriages.161

Greg Ladner

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1 Jorge Aquino, Will Other States Say 'Aloha' to Same-Sex Marriages?, The Recorder, May 10, 1993, at 3 (questioning whether "ground-breaking" nature of Hawaii Supreme Court's ruling will affect other states); Rorie Sherman, Gay Law No Longer Closeted, N at'l L.J., October 26, 1992, at 1 (explaining that "as the Hawaii suit suggests, inroads are being made in the most controversial area: family law"). 2 852 P.2d 44 (Haw. 1993). 3 Id. at 67. 4 For a discussion of the history of marriage regulation in the United States, see infra notes 15-32 and accompanying text. 5 For a discussion of cases dealing with the issue of same-sex marriages, see infra notes 38-63 and accompanying text. 6 For a discussion of the facts in Baehr, see infra notes 66-71 and accompanying text. 7 For a discussion of the plurality's analysis in Baehr, see infra notes 77-114 and accompanying text. For a discussion of the concurring and dissenting opinions, see infra notes 115-135 and accompanying text. 8 For a discussion of the validity of the court's analysis, see infra notes 138-57 and accompanying text. 9 For a discussion of possible attempts at amending the Hawaii Constitution, see infra note 149. 10 For a discussion of the debate in Hawaii created by this decision, see infra notes 147, 149. 11 For a discussion of the potential impact of this decision in other states, see infra notes 152-61 and accompanying text. 12 For a discussion of the possibility of litigation in other states as a result of the Baehr decision, see infra notes 158-60 and accompanying text. 13 Maynard v. Hill, 125 U.S. 190 (1888). This case involved a challenge to a divorce granted by legislative act of the Territory of Oregon. Id. at 203. The Court held, inter alia, that marriage is subject to the control of state legislature. Id. at 205. 14 Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993). 15 Parke v. Parke, 25 Haw. 137, 404-05 (1920) (holding that person whose marriage was not authorized by the state was not eligible for inheritance rights given to a legally married spouse).

The Hawaii Supreme Court in Baehr noted a similar holding in a case from another jurisdiction involving a same-sex spouse. 852 P.2d at 58. In De Santo v. Barnsley, 476 A.2d 952 (1984), a Pennsylvania superior court held that although the state recognize d "common law marriage" between opposite sex couples, it would not recognize a "common law marriage" between a same-sex couple. 16 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). The Supreme Court, noting the fundamental right to marriage, struck down on equal protection grounds an Oklahoma statute which allowed involuntary sterilization of habitual criminals. Id. a t 541. In Griswold v. Connecticut, 381 U.S. 479 (1965), the Supreme Court held that a statute which prohibited married couples from using contraception violated the right to privacy under the Due Process Clause of the Fourteenth Amendment. The Court's d

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ecision was based on the fundamental right to marriage. Id. at 485-86. In Zablocki v. Redhail, 434 U.S. 114, 386 (1978), the Supreme Court reaffirmed the fundamental right to marry. The Court invalidated a Wisconsin statute which required any state resi dent under obligation to pay child support to prove that all child support obligations were met before being allowed to marry. Id. at 114-91. The Court held that the statute interfered with the fundamental right to marry. Id. at 386-87. 17 Baehr, 852 P.2d at 55. 18 Skinner, 316 U.S. at 541. 19 Zablocki, 434 U.S. at 386-91. However, a state regulation that does "not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed." Id. at 386. 20 Zablocki at 387. 21 Zablocki at 386-91. The Court stated that "[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailor ed to effectuate only those interests." Id. at 388. 22 The United States Supreme Court however, has never directly considered the issue of same-sex marriage. See, e.g., G. Sidney Buchanan, Same-Sex Marriage: The Linchpin Issue, 10 U. Dayton L. Rev. 541, 545 (1985). ("It should be stressed that the Unite d States Supreme Court has not directly confronted the same-sex marriage issue.") 23 As the Baehr court noted, "In Skinner, the right to marry was inextricably linked to the right of procreation." Baehr v. Lewin, 852 P.2d 44,55 (citing Skinner v. ex rel. Williamson, 316 U.S. 535,541 (1942)). 24 In Griswold, the court stated, "[w]e deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse ... [i]t is an association that pr omotes a way of life." Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

In Zablocki, the Court stated, "it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society....

Surely, a decision to marry and raise the child in a traditional family setting must receive equal protection." 434 U.S. at 386. 25 388 U.S. 1 (1967). In Loving, two residents of Virginia, a white man and an African American woman, were married in the District of Columbia and then returned to Virginia. Id. at 2. They were indicted for violating Virginia's ban on interracial marri ages and were sentenced to one year in jail after pleading guilty. Id. at 3. The trial judge suspended their sentence for 25 years on the condition that the couple leave the state for that period of time. Id. at 3. The United States Supreme Court reve rsed their convictions holding that the prohibitions on

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interracial marriages violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Id. at 8-12. 26 Baehr, 852 P.2d at 63 (citing Loving, 388 U.S. at 3). 27 Loving, 388 U.S. at 8-9. 28 Loving, 388 U.S. at 7 (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944)). 29 Miscegenation is defined: "A mixture of races; esp: marriage or cohabitation between a white person and a member of another race." Webster's Third New Int'l Dictionary 1442 (1972). 30 Loving at 11-12. 31 Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973). Frontiero involved a challenge to a federal statute which required spouses of female military employees to prove their dependency in order to receive certain benefits. Id. at 679-80. Spouses of male military employees did not have to prove their dependency. Id. The Supreme Court, in a plurality opinion, held that the statute was invalid because it accorded differential treatment to males and females. Id. at 690-91. There was disagreement between the justices as to the level of judicial scrutiny required for a statutory sex-based classification. Id. at 690-92. However, as the Baehr court noted, the logical inference from the opinion is that "had the Equal Rights Amendment been incorporated into t he United States Constitution ... the Frontiero Court would have subjected statutory sex-based classification to 'strict' judicial scrutiny." Baehr v. Lewin, 852 P.2d 44, 67.

However, the Baehr court also noted that "the current governing test under the Fourteenth Amendment is a standard intermediate between rational basis and strict scrutiny." Id. at 64 (Citing Craig v. Boren, 429 U.S. 190, 197 (1976)). 32 Frontiero, 411 U.S. at 690-91. 33 Nelson v. Miwa, 546 P.2d 1005 (Haw. 1976) The Hawaii Supreme Court held that a university policy of discharging employees at the age of 65 did not meet the rational basis test. Id. at 1013. The court also noted that "laws classifying on the basis of

suspect categories or impinging upon fundamental rights are presumed to be unconstitutional unless the state shows compelling state interests which justify such classifications." Id. at 1008 (citing ork v. State, 498 P.2d 644, 647 (Haw. 1972)). 34 581 P.2d 1164 (Haw. 1978). In Holdman, a woman challenged a prison's requirement that female visitors wear a brassiere. Id. at 1165-66. The Hawaii Supreme Court upheld the dress requirement noting that the requirement survived even under the strict scrutiny test. Id. at 1169. The dress requirement served a compelling state interest in maintaining prison security. Id. at 1167-68. 35 Id. at 1168. 36 Id. at 1167-68. 37 See Joan Biskupic, Ruling by Hawaii's Supreme Court Opens the Way to Gay Marriages, Wash. Post, May 7, 1993, at A10 ; see also Andrew H. Friedman, Same-Sex Marriage and the Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based Defi nitions of Marriage, 1992 How. L.J. 173, 187-88 (1992) (noting that no state or federal court has recognized same-sex marriage). 38 Alissa Friedman, The Necessity for State Recognition of

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Same-Sex Marriage: Constitutional Requirements and Evolving Notions of Family, 3 Berkeley Women's L.J. 134, 111 (1987-88) (examining same-sex marriage cases, this article argues that statutes de nying same-sex marriage interfere with fundamental rights and should be subjected to strict judicial scrutiny). 39 191 N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). 40 Id. at 185. 41 Id. at 185-86. 42 Id. at 186-87. Note that apparently no state constitutional issues were raised in this case. 43 For a discussion of the U.S. Supreme Court's decision in Skinner, see supra notes 17-18, 23 and accompanying text. 44 For a discussion of the U.S. Supreme Court's decision in Griswold, see supra notes 16 and 24 and accompanying text. 45 Baker, 191 N.W.2d at 186. The Baker court noted that Skinner and Griswold both discussed the historic nature of the institution of marriage. Id. at 186 (citing Skinner, 316 U.S. at 541 and Griswold, 381 U.S. at 496). The Baker court stated that "[t ]his historic institution is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend." Id. The court also stated that, "[t]he equal protection clause of the Fourteenth Amendment, like th e due process clause, is not offended by the state's classification of persons authorized to marry." Id. at 187. 46 For a discussion of the U.S. Supreme Court's decision in Loving, see supra notes 25-30 and infra notes 146, 147 and accompanying text. 47 Baker, 191 N.W.2d at 187. 48 501 S.W.2d 588 (Ky. Ct. App. 1973). Note that in 1973, the Kentucky Court of Appeals was the highest state court. 49 Id. at 589. 50 Id. at 589. 51 Id. at 590. 52 522 P.2d 1187 (Wash. Ct. App. 1974). 53 Id. at 1188. 54 Id. at 1188-89. The appellants specifically alleged violations of the Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. Id. 55 Id. at 1189. 56 Id. at 1189-1195. 57 The court used the same reasoning as was used in Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) and in Jones v. Hallahan, 501 S.W.2d 588 (Ky. Ct. App. 1973). 58 Singer, 522 P.2d at 1192. 59 Id. at 1196. The court noted Washington precedent and the United States Supreme Court case Frontiero v. Richardson, 411 U.S. 677 (1973), both suggest that attempts at sexual discrimination require strict scrutiny. Id. 60 Id. at 1196. 61 Id. at 1196-97. 62 Id. at 1196-97. The court determined that a rational basis existed because "marriage as now defined is deeply rooted in our society" and the societal values in this area should be left to

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the legislature. Id. at 1197. 63 See, e.g., Dean v. District of Columbia, 18 Fam.L.Rep.(BNA) 1381 (D.C. Super Ct. 1992) (denying same-sex marriage because definition of marriage does not allow union between two people of same-sex); Adams v. Howerton, 673 F.2d 1036 (9th Cir.) cert. de nied 458 U.S. 1111 (1982) (denying same-sex marriage between male American citizen and male alien). 64 See, e.g., Bowers v. Hardwick, 106 S.Ct. 2841 (1986) (holding that Georgia's anti-sodomy statute did not violate the right to privacy); Braschi v. Stahl Associates, 543 N.E.2d 49 (N.. 1989) (holding that gay lover had right to stay in deceased lover' s apartment because he qualified as member of deceased lover's family); Matter of Alison D. v. Virginia M., 552 N..S.2d 321 (N.. App. Div. 1990) (holding that "lesbian partner was not a parent under Domestic Relations Law Y$70) . 65 Supra note 39. 66 There were 2 female couples and 1 male couple. Baehr v. Lewin, 852 P.2d 44, 48-49 (Haw. 1993). 67 Id. at 49; See Wash. Post supra note 39 (noting that one couple, Joseph Melilio and Pat Lagon, had lived together for fifteen years and wanted to marry for societal affirmation as well as for financial and legal benefits accorded married couples). 68 Baehr, 852 P.2d at 49-50. Hawaii Revised Statute Y$572-1 (1985) provides, in relevant part: Requisites of valid marriage contract. In order to make valid the marriage contract, it shall be necessary that: (1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate o r illegitimate; (2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit court within which the minor resides, it shall be lawful for a person under the ag e of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2 [relating to consent of parent or guardian]; (3) The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living; (4) Consent of neither party to the marriage has been obtained by force, duress, or fraud; (5) Neither of the parties is a person afflicted with any loathsome disease concealed from and unknown to, the other party; (6) It shall in no case be lawful for any person to marry in the State without a license for that purpose duly obtained from the agent appointed to grant marriage licenses; and (7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the man and woman to be married and the person performing the marriage ceremony be all physically present at the same place and time

for the marriage ceremony. Hawaii Revised Statutes Y$572-1 (1985) (emphasis added as in

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Baehr, 852 P.2d at 49). 69 Baehr, 852 P.2d at 48-49. The named defendant in this case is John C. Lewin who was acting in his official capacity as Director Of the Department of Health, State of Hawaii. Id. at 48. 70 The right to privacy is guaranteed by Hawaii Constitution article I, Y$6 which provides: The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

Hawaii Const. art 1, Y$6. The right to equal protection of the laws and due process of law is guaranteed by Hawaii Constitution article I, Y$5 which provides: No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of ra ce, religion, sex or ancestry.

Hawaii Const. art I, Y$5. 71 Baehr, 852 P.2d at 52. Note that the circuit court apparently made certain findings of fact and law including a finding that homosexuals do not constitute a "suspect class" for purposes of equal protection analysis, meaning that HRS Y$572-1 must only meet the rational relationship test. Id. at 53-54. The court made the further finding that HRS Y$572-1 satisfied the rational relationship test, and therefore there was no violation of the applicant couples' constitutional right to equal protection of the

law. Id. at 54. 72 The opinion was written by Judge Levinson, who was joined by Chief Judge Moon. Baehr, 852 P.2d at 48. Intermediate Court of Appeals Chief Judge James Burns, a substitute associate justice concurred in a separate opinion. Id. Judge Walter Heen, als o a substitute associate justice, wrote the dissent. Id. Retired associate justice oshimi Hayashi would have joined in the dissent, but his term expired before the filing of the opinion. Id. 73 Id. at 64. 74 Id. at 67. Note, the Hawaii Supreme Court did agree with the DOH that the right to privacy guaranteed by the Hawaii Constitution did not give the applicant couples a constitutional right to same-sex marriage. See infra notes 83-91 and accompanying text. 75 To satisfy the "strict scrutiny" test, the DOH must show that "(a) the statute's sex based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgment of the applicant couples' const itutional rights". Id. at 67. 76 Id. at 68. The court granted in part a motion for reconsideration or clarification by clarifying the "strict scrutiny" standard. The motion was denied in all other respects. Id. at 74-75. 77 For a discussion of the Hawaii Supreme Court's right to privacy analysis, see infra notes 77-86 and accompanying text.

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78 For a discussion of the Hawaii Supreme Court's equal protection analysis, see infra notes 88-91 and accompanying text. 79 Baehr, 852 P.2d at 55. 80 Id. at 55. 81 For a discussion of the U.S. Supreme Court's decision in Skinner, see supra notes 17-18, 23 and accompanying text. 82 For a discussion of the U.S. Supreme Court's decision in Zablocki, see supra notes 16, 19-21, 24 and accompanying text. 83 Baehr, 852 P.2d at 56. Skinner involved governmental interference with procreation rights, thus implicating a union capable of procreation, or in other words, a male and female union. 316 U.S. at 541. The language of Zablocki seemed to contemplate

a union of man and woman: "if appellee's right to procreate means anything at all, it must imply some right to enter [into marriage]" 434 U.S. at 386. 84 Baehr, 852 P.2d at 57. 85 Id. at 57 (quoting Griswold v. Connecticut, 381 U.S. 479, 493 (1965), concurring opinion of J. Goldberg). 86 Id. 87 Id. 88 Id. at 57-68. 89 Id. at 58. 90 Id. at 59. Those rights and benefits include income tax, inheritance and child custody benefits. Id. 91 Baehr at 59-60. "Article I, section 5 of the Hawaii Constitution provides in relevant part that '[n]o person shall ... be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in

the exercise thereof because of race, religion, sex, or ancestry.'(Emphasis added)" Id. at 60.

Note also that the Hawaii Supreme Court made clear that its equal protection analysis did not focus on discrimination because of sexual orientation, it focused on discrimination because of a person's sex. Id. at 53. The court also noted that "homosexual " marriages and "same-sex" marriages are not synonymous. "Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals." Id. at 51. 92 Id. at 60-63. 93 For a discussion of the Baker decision, see supra notes 39-47 and accompanying text. 94 For a discussion of the DeSanto decision, see supra note 15. 95 Baehr, 852 P.2d at 61. 96 Id. at 61. 97 Id. 98 For a discussion of the Jones decision, see supra notes 48-51 and accompanying text. 99 For a discussion of the Singer decision, see supra notes 52-62 and accompanying text. 100 Baehr, 852 P.2d at 61, 63. 101 Id. at 63 (citing Loving v. Commonwealth of Virginia, 388 U.S. 1, 3 (1967)). 102 Loving, 388 U.S. at 8-12. 103 Baehr, 852 P.2d at 63. 104 Id. at 63-67.

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105 Id. at 63-64. 106 Baehr, 852 P.2d at 60-61. 107 Id. at 64. 108 For a discussion of the Hawaii Supreme Court's decision in Holdman, see supra notes 34-36 and accompanying text. 109 Baehr, 852 P.2d at 64-65 (citing Holdman v. Olim, 581 P.2d 1164, 1167-68 (Haw. 1978)). 110 For a discussion of the U.S. Supreme Court's decision in Frontiero, see supra notes 31-32 and accompanying text. 111 Baehr, 852 P.2d at 66-67 (citing Frontiero v. Richardson, 411 U.S. 677, 679-680, 692, 727 (1973)). 112 Hawaii Const. art. I, Y$3. 113 Baehr, 852 P.2d at 67. 114 Id. Note, the court devoted a concluding section to refuting many of the points raised by the dissent. Id. at 67-68. For further discussion of that section see the critical analysis section of this Note. 115 Id. at 68. 116 Id. at 68-69. 117 Id. at 69. 118 Id. at 70. 119 Id. at 70. After this opinion was published, new evidence was released by the National Institute of Health suggesting a genetic link to sexual orientation. See Boyce Rensberger, Study Links Genes to Homosexuality; NIH Finds Gay Men Share Chromosonal Characteristics, Wash. Post, July 16, 1993, at A1 (discussing results of National Institute of Health study suggesting that gay men may inherit genes that predispose them to be homosexual). 120 Baehr, 852 P.2d at 68-70. 121 Id. at 70. 122 Id. at 70. For a discussion of arguments suggesting that the issue of same-sex marriage is better left to the legislature, see infra notes 134-35 and accompanying text. 123 Baehr, 852 P.2d at 70. 124 Id. The dissent believed that the plurality held that the appellants "have a 'civil right' to same-sex marriage." Id. However, as the plurality stated in a section refuting the dissent, the plurality did not hold that appellants have a "civil right" to same-sex marriage, the plurality simply held that marriage is a basic civil right. Id. at 67. That proposition was relevant to the remainder of the plurality's analysis. Id. 125 Id. at 70-71. 126 Baehr at 71. The earlier same-sex marriage cases were Singer v. Hara supra notes 52-62, Baker v. Nelson supra notes 39-47, Jones v. Hallahan supra notes 48-51, De Santo v. Barnsley supra note 15. 127 Baehr, 852 P.2d at 71. The dissent also stated that Loving does not refute that reasoning. Id. 128 The dissent used the word "gender" instead of "sex" and noted that the U.S. Supreme Court does not recognize sex or gender as a "suspect" classification. Id. But see supra notes 33-34, 112-113 and accompanying text (noting that Frontiero decision hel d that higher level of scrutiny was applicable to sex-based classifications). 129 Baehr, 852 P.2d at 71-72. 130 Id. at 72.

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131 Id. The dissent also claimed that the statute would satisfy the "rational basis" test because it rationally furthers a legitimate state interest. Id. 132 Id. at 72-73 (quoting Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974). The Singer court found no invidious discrimination on account of sex because the state's prohibition on same-sex marriage was not based upon appellants' gender, but was "based upon the state's recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children." 522 P.2d at 1195. The dissent argued, that the purpose of HRS Y$572-1 is also to promote an d protect propagation. Baehr, 852 P.2d at 73. 133 Id. at 73 (quoting Washington v. Fireman's Fund Ins. Cos., 708 P.2d 129, 134 (1985)). 134 Id. at 74. 135 Id. The dissent also pointed out that many municipalities extend such benefits without conferring marriage through domestic partnership ordinances. Id. 136 Id. at 57. 137 The concurrence and dissent both agreed with the majority on this point. Supra notes 79-84, 121. But see Friedman, supra note 38 (arguing that fundamental right to same-sex marriage arises from right to privacy). 138 In this case, the question was only whether or not same-sex marriage is rooted in the traditions and collective conscience of the citizens of Hawaii. According to the Baehr court, it is not. Baehr, 852 P.2d at 57.

Note that there are claims that throughout history various cultures and religions have permitted same-sex marriages. Joan Connell, A National Debate on Homosexuality, Star Tribune, February 10, 1993, at 1E (noting that scholars have discovered evidence that various cultures and religions, including Christianity, have allowed same-sex marriages). 139 Baehr, 852 P.2d at 57-67. 140 Baehr, 852 P.2d at 60 ("Rudimentary principles of statutory construction render manifest the fact that, by its plain language, HRS Y$ 572-1 restricts the marital relation to a male and a female."). 141 See infra notes 140-45. 142 In particular, the dissent notes the argument of the Singer court that marriage by definition only includes members of the opposite sex. Baehr, 852 P.2d at 71. 143 Baehr, 852 P.2d at 74. See also John Leo, Same-Sex Marriages Win a Victory But Portend an Overhaul of Tradition, Language, Common Sense, San Diego Union-Tribune, May 19, 1993 at b7 (arguing that court was judicially legislating and that domestic part nership ordinances are a better approach to the issue). But see Andrew Sullivan, Here Comes the Groom: A Conservative Case for Gay Marriage, New Republic, August 28, 1989 at 20 (noting that domestic partnership ordinances have flaws which are not found i n same-sex marriage). 144 Baehr, 852 P.2d at 68. 145 Furthermore, it would be difficult for a fact-finder to

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answer that question because there is no conclusive evidence at this time. For a discussion of present scientific knowledge on the issue of the biological nature of sexual orientation, see supra

note 121. 146 Baehr, 852 P.2d at 53. The plurality also notes that the biological nature of a person's sexual orientation is also "immaterial to the exercise of 'strict scrutiny' review." Id. 147 Sherry Jacobsen, Hawaii Debates Gay Marriages; State May Recognize Such Unions after Court Ruling, Pair's Bias Suit, Dallas Morning News, September 17, 1993 at 1A (noting that the state legislature is holding hearings to measure public opinion on same-sex marriages). 148 Articles discussing this case have appeared in major newspapers and magazines. See supra notes 1, 37, and infra notes 152, 156, 161. 149 "Several local groups say they will circulate petitions calling for a state constitutional amendment." Dallas Morning News, supra note 147. 150 At present, there are same-sex marriage challenges in Florida and Arizona courts. 151 For a discussion of the relevance of an Equal Rights Amendment to the court's analysis, see supra notes 106-16. 152 For Gays, Wedding Bells May Soon Ring, Newsweek, May 17, 1993 at 62 (noting that under the "strict scrutiny" standard, the same-sex marriage ban will probably fail). 153 Updates, Nat'l L.J., May 17, 1993, at 6. 154 Wash. Post, supra note 39; Sonia Faust is also looking into arguments against same-sex marriages based on "nuclear family, morality issues and other sociological research." Dallas Morning News, supra note 147 ; Commentators have argued that the stat e has a compelling interest in protecting and fostering the marriage institution as a union of man and woman only. See G. Sidney Buchanan, supra note 24 (arguing that recognition of same-sex marriages should not be performed by the judiciary, but instead should be left to the free workings of the political process embodied in the legislature). 155 Dallas Morning News, supra note 147 (noting that implications could extend beyond the Hawaiian islands because of the "Full Faith and Credit Clause" of the U.S. Constitution). 156 The Recorder, supra note 4. 157 Newsweek Poll, supra note 2. 158 "What seems certain is that there would be court battles over recognition of these unions by other states." Dallas Morning News, supra note 147. This article also noted that attempts at recognition of Hawaiian same-sex marriages could cause tension b etween states such as Texas and Hawaii. Id. 159 "Gay rights advocates say they expect years of litigation if agencies and legislatures in other states resist recognizing same-sex Hawaiian marriages." The Recorder, supra note 4. 160 "[A]ny victory for gay rights could trigger a backlash that would make the fight over gays in the military seem tame." Newsweek, supra note 163. 161 Dallas Morning News, supra note 147 (noting that legal experts believe the U.S. Supreme Court will ultimately decide the issue of same-sex marriage).

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