Regulating Equality, Unequal Regulation: Life after Obergefell

* I am grateful to Luke Boso, Visiting Professor, University of San Francisco School of Law, for reading and offering comments on initial drafts of this Essay, and for his continued feedback and support. Additionally, to Brian Mikulak, Assistant Professor, University of San Francisco School of Law, and Lee Ryan, Co-Director of University of San Francisco’s Dorriane Zief Law Library, for their research assistance. I would further like to thank the editors of the Yale Journal on Regulation for their hard work and incisive edits, which greatly improved this Essay.

This Essay examines the interplay between state statutes that created and regulate civil unions for same-sex couples and the landmark ruling in Obergefell v. Hodges. It observes Obergefell was silent on how to treat civil unions, and argues that Obergefell presents two competing definitions of marriage. These competing definitions expose the costs and legal complications queer Americans continue to bear in both family-formation and dissolution. The Essay contends these costs are mediated by the formal disjunction between substantive equality in Obergefell and the regulatory processes which incepted and proceeded it. The Essay concludes with a survey of developments in post-Obergefell litigation around civil unions.

Introduction

For all its lofty evocations of equality, the Constitution’s most historically contested guarantee, Justice Kennedy’s discourse in Obergefell v. Hodges is interrupted by a telling aside: “[S]ociety pledge[s] to support the couple, offering . . . material benefits to protect and nourish the union.”1 The materiality and immateriality of same-sex2 marriage is framed throughout Kennedy’s opinion by a surprisingly heteronormative anxiety: what damage have we done to America’s children, allowing them to suffer the “significant material costs” of living with unmarried same-sex parents?3

If the undergirding logic of Obergefell is—in a way that marriage equality demonstrates rather than refutes—the maintenance of marriage as the embodiment of “the highest ideals,” is there any way its holding could even allow two non-married queer Americans to become “something greater than once they were”?4 Obergefell is simultaneously (and paradoxically) valuable for its definitions of marriage, as well as for the possibilities it presents for exploding the legal differentiations between “spouse” and “non-spouse.” To the extent that the Obergefell decision has not explicitly indicated a societal acceptance of radical queer politics, the decision nonetheless presents opportunities for these politics to re-emerge in lower court proceedings.5 The following analyses consider lower court interpretations of Obergefell, and how these court proceedings have resisted or deepened Kennedy’s conceptualization of queer bodies and their configuration into “one of civilization’s oldest institutions.”6 The heteronormative anxieties of Obergefell extend beyond the wellbeing of American children and work additionally to situate new material parameters of queer intimacy within the institutional framework of marriage. This Essay examines how these anxieties drive lower court proceedings.7

Part I of this Essay opens with a case concerned with the regulatory problems Obergefell leaves unresolved.8 In the struggle for and legal history of marriage equality, state legislatures and statutes have been primarily focused on developing alternative forms of union for same-sex couples. As praxis, regulation has both distributed and integrated common law approaches to equality. I also argue in Part I that Obergefell presents two distinct definitions of “marriage.” These competing definitions afford a reconsideration of how alternative forms of union and marriage’s enhanced liberties can open new avenues toward material benefits for queer Americans. Part II examines a case involving a same-sex partnership’s dissolution and custody dispute. This analysis exposes the material costs queer couples continue to bear in family-formation, and how post-Obergefell union dissolution litigation requires distinguishing between categories such as “partner” and “spouse.” These costs and requirements destabilize the foundation of equality on which Obergefell was trumpeted. Part III concludes this Essay with a brief consideration of how civil union litigation can anchor strategies for activism after marriage equality.

I. Sexuality, Equality, and Legislative Histories

Same-sex couplings have a storied history beyond twenty-first century American legal proceedings.9 Sexuality as a primary concern of and arguable cause for psychoanalysis opened what Michel Foucault calls a substantial shift in tactics, consisting of “reinterpreting the deployment of sexuality in terms of a generalized repression [and] tying this repression to general mechanisms of domination and exploitation.”10 This analysis of sexuality as historical foils the forked possibilities queer activists faced in presenting a national campaign for marriage equality in the wake of the Hawaii Supreme Court’s 1993 decision in Baehr v. Lewin11 and more recently in United States v. Windsor.12

As the possibility of marriage equality slowly became a legal reality, queer scholars remained divided. Was marriage valuable as a generative framework for this newly allowed participation in federal civil liberty, or simply the continued and well-costumed regulation of queer sexuality?13 The former position—that marriage equality fundamentally improves the standing and lives of queer Americans—is held by many laypeople and activists.14 The latter, in which queer sexuality is hardly “advanced” by the formalization of equality through marriage, has been articulated variously by many scholars.15 The tension between these conceptualizations of equality reasserts the relevance of Foucault’s analyses of how, and by whom, sexuality is “deployed.”16

Out of both shrewdness and necessity, same-sex litigants have begun deploying their own sexuality within a latticework of regulations to achieve otherwise commonplace legal outcomes. Solomon v. Guidry presents a series of complications to the otherwise straightforward problem of how a same-sex couple might divorce.17 This process is complicated by the failure of Obergefell to consider civil unions as distinct from formal marriages and how same-sex couples can dissolve them. In Solomon, the plaintiff and defendant entered in 2001 into a civil union in Vermont. In 2015, after returning to Vermont from North Carolina, the couple sought to dissolve their civil union. The Vermont Legislature created the civil union in 2000, which extended “the benefits and protections of marriage to same-sex couples” through a system entirely separate from civil marriages.18 “While a system of civil unions [did] not bestow the status of civil marriage, it [did] satisfy the legal relationships of the Common Benefits Clause.”19

While Vermont legalized same-sex marriage in 2009, its legislature ensured that civil marriages would not dissolve civil unions. Any same-sex civil union would continue to be recognized in Vermont regardless of whether the couple chose to marry.20 Between the passage of this legislation and Obergefell, Vermont revised its statutory parameters for nonresident civil union dissolution. Because couples joined by civil unions or marriages in Vermont did not have access to divorce proceedings in states that refused to recognize same-sex unions or marriage, Vermont codified means by which its once-residents could dissolve unions or marriages.21

Solomon introduces a regulatory concern within the debated strength of Justice Kennedy’s Equal Protection guarantee. The problem animating the case is the Supreme Court’s failure to mandate that states recognize lawful same-sex civil unions alongside same-sex marriages. Obergefell is silent regarding how states must treat extant civil unions.22 The legislative purpose of civil unions was the provision of the same material benefits otherwise afforded by marriage.23 Underpinning Solomon is how civil unions paradoxically disrupt the regulatory scheme through which marriage equality in Obergefell is realized. Because Obergefell did not account for civil unions, the statutory infrastructure governing them, particularly with respect to custody disputes and dissolutions, is still required even after Obergefell. While no new same-sex civil unions have been formed post-Obergefell, the impact and necessity of union-oriented statutes remain for same-sex couples still bound by civil unions. Accordingly, Vermont statutes governing disputes and dissolutions between union-bound couples remain intact and have not been revised since Obergefell.24

Glaringly, Justice Kennedy’s analysis excludes bisexual and transgender citizens and their configuration into the new equality schema.25 This exclusion correlates to the disregard for civil unions in post-Obergefell marriage equality. Rather than foreclose the possibility of “queering” marriage as an institution,26 this disregard preserves possibilities for how lower courts can reconcile the complexities of queer theory excluded from the Constitutional considerations dominating the holding through regulatory mechanisms. This preserves the possibility for advancing queer politics in a post-Obergefell society.

The history of queer radical resistance is intertwined with the history of legal victories for LGBT Americans. Through a series of decisions that disentangled LGBT bodies from criminal penalties or found those regulations altogether unconstitional,27 queer sexuality was incrementally legitimated and normalized into society. As Solomon forecasts, the consequence of welcoming queer bodies into the mainstream was realizing the inevitably expanded role that they would play in the nation’s political economy. This role moved beyond a consumers/consumed dyad of cultural-commodity exchange.28 With a sudden “explosion” of visible gay and lesbian bodies in the workplace and in media representations, emancipatory de-regulation became the symptom of inequality early-stage radical activists feared and against which they imagined a resistance.29 Obergefell generates no new liberties; it only introduces same sex couples into the central premises and federal rights of marriage.30 The ideology of access as achieved by “regulating” equality into marriage (as typified more by Kennedy’s introductory language) ensures queer participation in an essentially unchanged system.31 This fails to change social conceptions of what “sacred” and “essential” marriage is or could be, despite the religious resistance to same-sex marriage in the opinion’s wake.32

This definition conceals the opinion’s other ideological function. If read through the lens of Kennedy’s later definition of marriage as a guarantee of “material benefits” that preserve the union,33 I further argue Obergefell succeeds on a second plank. Before Obergefell, queer Americans gradually accumulated rights and visibility while many before 2015 (and many after) remained unmarried.34 After Obergefell, not only do unmarried couples have no alternative to marriage for securing specific rights and “material benefits,” but higher rates of marriage increase married queer participation in a political economy for which marriage is a threshold barrier.35 Pre-Obergefell state-recognized marriage was not the only way for same-sex couples to gain rights.36 However, state-recognized marriage is the guaranteed way for same-sex couples to have their shared lives regulated by the state.37 A tension emerges between the “much needed clarity” Obergefell affords by locating gay rights cases within the Court’s “fundamental rights line of cases”38 and a question exposed by Chief Justice Robert’s dissenting remark: “[t]he equal protection analysis might be different . . . if we were confronted with a more focused challenge to the denial of certain tangible benefits.”39 How has marriage under Obergefell left open the possibility for developments or challenges to certain tangible and material benefits, and for whom?

II. Partners and Spouses: The Possibilities of Substantive Equality and Regulation

The lingering question of what to do with civil unions after Obergefell goes beyond a disregard for the complicated lived and legal experiences of some same-sex couples’ frustrations with divorce or custody proceedings. The emergence of cases seeking to resolve seemingly ordinary complaints (divorces, custody disputes) between same-sex couples bound by civil unions destabilizes the foundations of equality on which Obergefell is opined. Gardenour v. Bondelie, unlike Solomon, is premised on the idea that a registered domestic partnership (RDP) is not a surrogate for marriage or the legal rights it confers.40

In Gardenour, the Indiana Court of Appeals applied California law to determine if an RDP issued in California could be terminated in Indiana and how this termination could be applied to plaintiff’s child custody claim.41 This RDP was one of many issued since 2003 from California.42 From 2003 to 2015, Californians bound under RDPs did not enjoy any of the approximate 1,100 federal rights accorded married couples. This was the key feature distinguishing California’s RDPs from the rights and protections accorded married couples at the federal level.43 Despite their progressive tones, many equality advocates criticized RDP bills and regulations as pacifying efforts for LGB citizens by conferring rights that were visually appealing but substantively hollow.44

The Gardenour court applied relevant California law in its opinion. Gardenour’s argument at the trial level was that, assuming the RDP agreement in question did establish a relationship identical to marriage, the trial court erred in recognizing such a relationship in Indiana.45 Gardenour argued that recognizing a same-sex relationship is counter to Indiana public policy, which the court found “outdated.”46 The court wrote that “this court and the [Indiana Supreme Court] previously acknowledged a public policy against recognizing same-sex marriage” because of state legislation which stated same-sex marriage was void even if lawful in the state where it was celebrated.47 However, the court cited Obergefell in explanation for how this legislation has been struck down as unconstitutional.48 There is an obvious tension between the argument of Gardenour and the original, conservative reasoning of the Indiana legislature’s policy against same-sex marriage.

RDPs are equivalent to same-sex marriages only insofar as marriages offered a model for regulating RDPs. Gardenour’s first argument to the Indiana court that recognizing an out-of-state RDP is counter to state policy interests signals (perhaps in a way supported by the court’s lengthy citations) precisely the fractious social realities and federalist discrepancies regarding same-sex marriage that Obergefell failed to unify. This argument concludes that the experience of bounded partnership for same-sex couples has, and will continue to have, legal complications that cannot be experienced by their heterosexual counterparts. The Gardenour opinion raises a question about how and by whom Obergefell may be used as a piece of discursive strategy for either conservative or radical ideologies.

Gardenour’s attempted differentiation between “partner” and “spouse,” and the Gardenour Court’s reliance on contract theory to reconcile the statutory strictures of the RDP and custody proceeding, undercuts Obergefell in another sly way. Implicit here is the idea that partners and spouses are distinct, as demonstrated by the litany of California Code requirements cited by the Gardenour Court. Statutes structuring domestic partnerships, as the Gardenour court unpacks, impose specific concrete terms with financial and affective requirements.49 While scholars like Mary Ann Case argue marriage offers more, not less, flexibility than domestic partnerships, Gardenour’s point as a litigant remains clear: the processes and experiences of a partner, defined under California statute, are distinguishable from those of spouses.50 This differentiated experience of partnership is expressed at both the substantive level of law, in terms of requirements to secure a RDP versus a marriage, as well as how the material realities of these two legal and relational structures persist as lived experiences for same-sex and queer couples even after Obergefell.

The Gardenour court’s application of its legal authority and newly acknowledged, post-Obergefell policy interests in same-sex domestic life are immediately presented in its following paragraph:

Here, California law makes clear a RDP is identical to marriage. If we did not recognize California RDPs as the equivalent of marriage, it would seem to allow individuals to escape the obligations California imposes upon domestic partners, namely with respect to children . . . In addition, not recognizing their status would ultimately harm [their child] because a child’s welfare is promoted by ensuring she has two parents to provide financial support.51

The court’s conditional framework is necessary to effectively recycle Justice Kennedy’s language: the Gardenour court’s concern for “a child’s welfare” and its promotion with “two parents to provide financial support” is not far removed from minimizing the “significant material costs” against America’s children under their unmarried queer parents.52 The recognition of a same-sex spousal relationship as “not go[ing] against Indiana public policy” flows from the court’s concern over a child’s welfare.53 The court also recognized Bondelie, the child’s non-biological parent, as a legal parent.54 Gardenour echoes Justice Kennedy’s concerns for children.55 The court’s concerns and recognitions illuminate the “significant material costs” borne by many queer parents to simply have children.56 These costs are borne in attempts to participate in legal processes (dissolutions, custody disputes) that are continually mediated by the formal disjunction between substantive equality in Obergefell and the regulatory processes which incepted and necessarily preceded it.57

III. Beyond Obergefell and Marriage Equality

In a continued study of case law and legislative responses to activism for bisexual, transgender, and domestic partnerships or arrangements after marriage equality, the task is twofold. First, understanding how the “contemporary legal imagination”58 of lower courts variously interpret the competing definitions of “marriage” from Obergefell. Second, asking how do these interpretations foreclose or preserve possibilities for persons outside the framework of Obergefell? Perhaps an initial answer to this question is a formal one. Litigation surrounding pre-Obergefell civil unions and RDPs affords a place from which both scholars and practitioners may begin to address these questions. Where, again, scholars like Case make a compelling argument for the comparative flexibility of marriage-as-institution versus the statutory domestic partnership, the legal victories and disputes for queer couples, married and unmarried, before and after Obergefell are consequences of the same goal. This goal is to extract a radical alternative to our (still existing) marginalized world from the lineaments of its own description of itself.59

The paradox put before queer Americans, married and unmarried, in the wake of Obergefell is dialectical. The struggle for how to reassert a positionality from which a more “radical” conceptualization of sexuality and intimacy can be deployed—if such a position, per scholars like Case, was or in the statutory framework ever asserted—is not suppressed by Obergefell. Rather, Solomon and Gardenour are initial glimpses or openings of the space for the relative autonomy of a potentially new “struggle”: the struggle for equality, for example, is made newly possible through the still-pliant regulatory passages through which queer life must pass.

  1. 135 S. Ct. 2584, 2601 (2015) (emphasis added). The Court affirmatively answered the central question presented by the case: “Does the Fourteenth Amendment require a state to license marriage between two people of the same sex?” The Court’s emphasis on “the entwined emphasis of liberty and equality” became a “game changer for substantive due process jurisprudence.” See Kenji Yoshino, A New Birth of Freedom?: Obergefell v. Hodges, 129 Harv. L. Rev. 147, 148 (2015). It is outside the scope of this Essay to consider the growing and urgent analyses of Obergefell as differently experienced along lines of class, race and citizenship. For more, please see: R.A. Lenhardt, Race, Dignity, and the Right to Marry, 84 Forham L. Rev.,/span> 53 (2015); Elvia Rosales Arriola, Queer, Undocumented, and Sitting in an Immigrant Detention Center: A Post-Obergefell Reflection, 84 UMKC L. Rev. 617 (2016).
  2. Textually, Obergefell refers only to “same-sex” marriages and couplings. This Essay adopts this limiting language only as necessary for references and citations. Its usage is meant to distinguish the queer activism and theory which includes bisexual, transgender, and gender non-conforming individuals from the opinion’s language. See Luke A. Boso, Dignity, Inequality, and Stereotypes, 92 Wash L. Rev. 1119, 1120 (2017).
  3. 135 S. Ct. at 2590.
  4. Id. at 2608.
  5. This Essay opens with the historicized assumption that any Supreme Court decision—despite its posturing to the contrary—initiates the social change it alleges to ratify.
  6. Id. at 2608.
  7. See Cary Franklin, Marrying Liberty and Equality: The New Jurisprudence of Gay Rights, 100 Va. L. Rev. 817, 851 (2014) (noting the historical relationship between anti-gay discrimination and constitutional equality norms).
  8. Solomon v. Guidry, 155 A.3d 1218 (Vt. 2016).
  9. Lawrence v. Texas, 539 U.S. 558 (2003); see also Bowers v. Hardwick, 478 U.S. 186 (1986) (holding that an anti-sodomy statute did not violate fundamental rights of homosexuals), overruled by Lawrence, 539 U.S. 558.
  10. Michel Foucault, The History of Sexuality: Volume I, 130-31 (1980).
  11. 52 P.2d 44 (Haw. 1993).
  12. 570 U.S. 744 (2013).
  13. Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage, 2014 Calif. L. Rev. 87, 102.
  14. See id. at 90-91.
  15. See, e.g., Melissa Murray, What’s So New About the New Illegitimacy?, 20 Am. U. J. Gender, Soc., Pol’y & L. 387, 433 (2012); Nancy D. Polikoff, Ending Marriage as We Know It, 32 Hofstra L. Rev. 201, 203 (2003); Katherine Franke, The Politics of Same-Sex Marriage Politics, 15 Colum. J. Gender & L. 236, 242 (2006).
  16. It is outside the scope of this Essay to consider the ways in which non-married heterosexual partnerships during this period were simultaneously enduring discriminatory holdings against their access to state resources like unemployment benefits, or how queer activists responded to these holdings directed at their hetero-counterparts. For more, see Norman v. Unemployment Insurance Appeals Board, 663 P.2d 904 (Cal. 1983).
  17. 155 A.3d 1218 (2016). Plaintiff filed a petition to dissolve his nonresident same-sex civil union and appealed to the Vermont Supreme Court.
  18. Id. at 1219; 15 Vt. Stat. Ann. Tit. 15, § 23 (1999).
  19. Id. (citation omitted). The Common Benefits Clause provides “[t]hat government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such a manner as shall be, by that community, judged most conducive to the public weal.” Vt. Const. art. VII.
  20. 2009 Vt. Acts & Resolves 33. This language comes from a summary provided along with the status of the bill.
  21. 15 Vt. Stat. Ann. tit. 15, § 1206 (2018). This measure was, of course, mooted by Obergefell’s holding that states must recognize lawful same-sex marriages in other states.
  22. See 135 S. Ct. 2584, 2603 (2015).
  23. 15 Vt. Stat. Ann. tit. 15, § 1204 (1999).
  24. 15 Vt. Stat. Ann. Tit. 15, § 23 (2018).
  25. See Boso, supra note 2, at 1120.
  26. See Ajnesh Prasad, On the Potential and Perils of Same-Sex Marriage: A Perspective from Queer Theory, 7 J. Bisexuality 191 (2008).
  27. E.g., United States v. Windsor, 570 U.S. 744 (2013); Lawrence v. Texas, 539 U.S. 558 (2003).
  28. Richard R. Cornwell, Queer Political Economy: The Social Articulation of Desire, in Homo Economics: Capitalim, Community, and Lesbian and Gay Life 89, 103 (Amy Gluckman & Betsy Reed, eds. (1997). (The extent to which queer social codes, and the experiences that produce them, get used depend on whether they sweep “in a wave, like an epidemic, through society.” Queer political economy, through increasing social and legal acceptance of homosexuality, created a kind of “social epidemic” in which queers were not only consumers but “introduce[d] a possible new type of externality among all actors’ actions/voices.”)
  29. See John D’Emilio, Sexual Politics, Sexual Communities: The Making of a Homosexual Community in the United States, 1940-1970 (1983). This backdrop of social history is crucial for reading the definitions marriage offered in Obergefell.

    The opinion presents two definitions of marriage. Kennedy’s first definition of marriage is as a “lifelong union” that is “sacred” and “essential to our most profound hopes and aspirations.”[30. Obergefell, 135 S. Ct. at 2594.

  30. Id. at 2600.
  31. Yoshino, supra note 2, at 163.
  32. Ira C. Lupu, Moving Targets: Obergefell, Hobby Lobby, and the Future of LGBT Rights, 7 Ala. C.R. & C.L. L. Rev. 1, 2 (2015).
  33. Obergefell, 135 S. Ct. at 2601.
  34. Id. at 2596-97.
  35. Melissa Murray, Obergefell v. Hodges and Nonmarriage Inequlity, 7 Calif. L. Rev. 1207, 1251 (2016).
  36. Id.
  37. See Peter Nicolas, Fundamental Rights in a Post-Obergefell World, 27 Yale J.L. & Feminism 331, 361 (2016).
  38. Id.
  39. Obergefell, 135 S. Ct. at 2623 (Roberts, C.J., dissenting); see also Murray, supra note 36, at 1251.
  40. 60 N.E.3d 1109 (Ind. Ct. App. 2016). Biological mother Kristy Gardenour filed an action to terminate her RDP with partner Denise Bondelie, which was issued in California while living in Indiana. On appeal, Gardenour argued that the couple’s RDP was never intended to confer equal rights as married couples or a spousal relationship for determining child custody or support in termination proceedings.
  41. Id.
  42. Cal. Fam. Code § 297.5(a) (West 2018) (“Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under [California state] law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”).
  43. The California Code later confirms this twelve-year distinction: See id § 297.5(e) (“To the extent that provisions of California law adopt, refer to, or rely upon, provisions of federal law in a way that otherwise would cause registered domestic partners to be treated differently than spouses, registered domestic partners shall be treated by California law as if federal law recognized a domestic partnership in the same manner as California law.”).
  44. See, e.g., William C. Duncan, Domestic Partnership Laws in the United States: A Review and Critique, 2001 BYU L. Rev 961 (2001).
  45. 60 N.E.3d at 1116.
  46. Id. at 1117.
  47. Id. at 1118.
  48. Id.
  49. Mary Anne Case, Couples and Coupling in the Public Sphere: A Comment on the Legal History of Litigating for Lesbian and Gay Rights, 79 Va. L. Rev. 1643, 1664–65 (1993).
  50. .Gardenour, 60 N.E.3d at at 1115-16; see also Cal. Fam. Code § 297.5(e) (West 2018).
  51. Gardenour, 60 N.E.3d at 1118 (emphasis added).
  52. Obergefell v. Hodges, 135 S. Ct. 2584, 2590 (2015).
  53. Gardenour, 60 N.E.3d at 1118.
  54. ”That said, the evidence establishes Kristy [Gardenour] and Denise [Bondelie] agreed to co-parent a child conceived via artificial insemination with Kristy being the birth parent . . . . Denise and Kristy still considered C.G. to be Denise’s son . . . . We therefore conclude Kristy and Denise, as spouses, knowingly and voluntarily consented to artificial insemination. Denise is C.G.’s legal parent.” Id.
  55. ”[N]ot recognizing their status would ultimately harm [their child] because a child’s welfare is promoted by ensuring she has two parents to provide financial support.” Id.
  56. Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185, 1253 (2016) (“Family-based LGBT equality may be particularly significant to the status of assisted reproduction, which is central to same-sex family formation.”). Arguably, for courts concerned with children’s welfare the costs and process of family-formation through assisted reproduction make certain same-sex couples more invested (literally and figuratively) in the welfare of their children.
  57. For some illustrative cases emergent post-Obergefell, see Marie v. Mosier, 196 F. Supp. 3d 1202 (D. Kan. 2016), in which same-sex couples brought action against state officials declaring Kansas state law violated due process and equal protection rights in its failure to recognize previous and out-of-state same-sex marriages and unions, and Mabry v. Mabry, 882 N.W.2d 539 (Mich. 2016) (McCormack, J. dissenting), arguing that the appeal should be granted to determine whether Obergefell compels the application of equitable-parent doctrine to custody disputes between same-sex couples previously and unconstitutionally barred from legal marriage. The Mabry dissent signals the vibrancy with which Obergefell may (and must) be debated not merely on ideological terms, but also within doctrinal and statutory frameworks for the continued pursuit of truly equal protection. See also Blumenthal v. Brewer, 69 N.E.3d 834 (2016) (holding, against litigant’s argument that despite affective and financial near similarity, the prohibition of unmarried cohabitants bringing common-law claims based on marriage-like relationship did not violate due process or equal protection, essentially barring a former same-sex domestic partner, who sought restitution from use of funds in previously joint account, by the public policy implicit in a statutory prohibition disfavoring grant of property rights to unmarried cohabitants.)
  58. See Murray, supra note 36, at 1250.
  59. “Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life . . . have devoted substantial attention to the question.” Obergefell, 135 S. Ct. at 2605. While Justice Kennedy summarizes a century of discourse on the topic, this acknowledgment makes clear how equality, qua Obergefell, is constructed—or contoured by—this discursive context.

Political Control Over Public Communications by Government Scientists

* Lisa Randall is the Frank B. Baird, Jr. Professor of Science at Harvard University. Cass R. Sunstein is the Robert Walmsley University Professor at Harvard University.

Recent years have seen a great deal of controversy over political control of communications by government scientists. Legitimate interests can be found on both sides of the equation. Clearly there is a strong public interest in the free flow of scientific information. On the other hand, political leaders in any administration might need advance notice of what government scientists plan to say, and they might also seek to control the timing of their presentations and announcements. Although many important questions remain to be addressed, this essay offers a first step towards a framework that is meant to accommodate these interests and that answers a series of concrete questions about when, and what kind of, political control is appropriate. The framework allows advance notice to political officials, including the White House, and also allows control over timing, without allowing censorship of the substantive content of scientific information.

I. The Problem

In a free society, scientists—even those working for the government—should have the right to communicate with the public. But government employees have long been subject to restrictions on what they can say and when they can say it, even when simply presenting scientific results.1 In recent years, both Democratic and Republican administrations have failed to develop clear principles governing political control of communications from government scientists, with potentially detrimental consequences to our nation. Our goal here is to suggest initial steps to fill this gap and answer most questions in a brief space. We emphasize that our framework is preliminary and that it leaves many open questions and a few gray areas. But in the absence of some kind of framework, we risk ad hoc judgments, inconsistency, excessive political control, and loss of the benefits that ready access to scientific information can provide.

During the Obama Administration, the effort to develop such principles produced intense internal and external controversy.2 As Administrator of the White House Office of Information and Regulatory Affairs, one of the present authors (Sunstein) was directly involved in the internal debates. The defining moment came in December 2010, when Science Advisor John Holdren tried to synthesize the consensus within the White House with four defining principles.

  1. In response to media requests on scientific or technological issues, agencies should offer an “objective and nonpartisan” spokesperson.
  2. Federal scientists may speak to the media and the public about scientific and technological matters based on their official work, with appropriate coordination with their immediate supervisor and their public affairs office.
  3. In no circumstance may public affairs officers ask or direct Federal scientists to alter scientific findings.
  4. Mechanisms should be devised to resolve disputes about whether or not to proceed with public information-related activities.3

Each of these principles deserves support, but they leave many unanswered questions. Who, exactly, is an objective and nonpartisan spokesperson? What counts as “appropriate coordination” with a public affairs office? What kinds of “disputes about whether or not to proceed” are even legitimate, and what would “mechanisms” look like?  Even if public affairs officers may not “alter” scientific findings. do the four principles allow such officers to forbid disclosure of such findings? How does an agency treat data not originating within its organization? And how do we guarantee that set policies are actually implemented?

In response to this guidance, a number of government agencies developed implementation policies, some of which tried to address these issues through formal, publicly available documents or through other informal practices.4 Even so, critical gaps remain in understanding policy and practice. Under President Donald Trump, the White House has yet to announce its own principles, and many people are concerned by what they see as a precipitous trend toward severe restrictions on communications from government scientists.5 We think that a few important distinctions, not yet part of the debate, can cut through the fog – and show how to accommodate legitimate concerns of both government scientists and political officials.

II. The Concerns

Communications offices and other public officials—in, say, the White House or the office of a cabinet head—are often concerned about the potentially negative consequences of communications between government scientists and the public. This concern is sometimes legitimate. Issues range from those with obvious political valence to those that are more abstract; they may involve avian flu, particulate matter, asteroid collisions, artificial intelligence, distracted driving, the origins of life, or nuclear material, for example. Government officials who oversee federal agencies might ask for one of four things from government scientists.

A notation before we begin: we deliberately phrase the concerns in abstract terms, without reference to particular cases. Claims about any such cases will be contestable. But for identifiable reasons, the concerns are manifested in numerous real-world controversies.6

  1. Public officials might insist on advance notice of public communications from government scientists. They might fear surprises. They might not want to have to address questions from the press or the public without having time to prepare. They might need to work with scientists to learn what to say and how to say it.
  2. Public officials might want to control the timing of those communications. A disclosure of a scientific finding might disrupt a policy announcement scheduled for that same day. Perhaps the disclosure would distract attention from the announcement or be in some tension with it. For reasons that are not self-evidently illegitimate, political officials, including the White House communications team or even the president personally, might want the announcement to occur only after some kind of specified delay.
  3. They might want to control the content of those communications, in extreme circumstances by forbidding their disclosure altogether (a “gag rule”). Such restrictions might range from political officials who insist that government scientists describe their findings in a particular way, perhaps to ensure clarity and to avoid confusion or to more troublesome cases in which officials think that the disclosure of the findings, even if valid, risk jeopardizing some identifiable political position or goal. For that reason, they might tell government scientists that they may not speak publicly at all.

To be more concrete: Political officials might believe that a new finding—for example, involving the carcinogenic properties of some commonly used product, or other health risks associated with using it—might create public alarm. They might judge that the finding is too preliminary, or in conflict with other findings. They might believe that even if the finding is neither preliminary nor contested, it might produce a kind of panic, unjustified by the science at such.7 Alternatively, they might believe that some finding has an obvious or potential policy implication—say, that greenhouse gases should be regulated, that some chemical should be banned, or that the argument for some proposed law, opposed by the President, is actually quite strong. Political officials might want to prevent the public announcement of findings with such unwelcome implications, which may disrupt ongoing debates, and give fuel to political adversaries.

  1. They might want to control what agency employees say, even when not speaking on the agency’s behalf. It is true that some high-level public officials believe that whenever government employees speak in public, they speak for government; they never speak in their private capacity. And that is undoubtedly true for some officials (such as the Secretary of State and the Secretary of Defense). But by tradition, government scientists have sometimes had the authority to say that they do not speak on behalf of their agency.8 Even so, the White House, or offices of Cabinet heads, might want to limit what they say in public.

For its part, science that comes from the government can be categorized in three ways:

  1. Policy relevance. Some scientific findings are tightly connected with high-level policy debates. For example, a government scientist might conclude that the climate change problem is likely to be far more (or less) serious than existing research suggests, in the sense that anticipated warming, by 2100, will be higher (or lower) than previously projected.9 Or a government scientist might conclude that some chemical, now in widespread use, poses serious health risks for children; public disclosure of that finding will predictably produce a market reaction, with economic consequences, and trigger a demand (and perhaps a legal requirement) for regulatory action.
  2. No policy relevance. Some scientific findings have no evident connection with high-level policy debates. For example, a government scientist might make some new finding about black holes, or might offer fresh information about a new species of dinosaur or bird. In such cases, let us simply stipulate that public disclosure of the relevant findings will not raise issues or produce concerns that could possibly be of interest to policymakers.
  3. Potential policy relevance. Some scientific findings might seem to government scientists and to most people to have no connection with high-level policy debates, even when those who work in the White House or an office of an official in the Cabinet might not find that entirely clear. In fact, this kind of disconnect—between political leadership and scientists—is quite common. For example, some findings with respect to dwindling fish populations, ocean acidification, or the spread of influenza might seem technical, but they might be invoked in debates about policy issues.

III. Ten Cases

With these distinctions in mind, we can identify ten kinds of cases, five of which seem straightforward.

A. Straightforward Cases

  1. There is no reasonable objection when political officials merely seek advance notice of a scientific finding that has policy relevance. Both communications offices and policy officials can legitimately contend that in order to do their jobs, they need to have a clear sense of scientific announcements that bear on policy. The issue here is only how far in advance the notice should be.
  2. Political officials may appropriately control the timing of release of a scientific finding with manifest policy relevance. Officials can legitimately argue that they are entitled to control the policy agenda and that it is appropriate to ensure that scientific announcements from government employees do not compromise that agenda. Outside of the most unusual circumstances, there is an important qualification: There should be a fixed limit to the delay.
  3. If a scientific finding has potential policy relevance, political officials can appropriately seek advance notice of its disclosure. Officials should be entitled to have a clear sense of scientific announcements that might bear on policy discussions, even if we emphasize the word “might.”
  4. If a scientific finding has even potential policy relevance, it remains legitimate for political officials to control the timing of its disclosure. The considerations in point 2 above apply here as well.
  5. No democratic government should seek to control the content of disclosure of scientific findings that lack policy relevance. Such findings might be intriguing, controversial, or disturbing, but policy officials, not versed in science, have no business altering them in any way.

B. Difficult Cases

Five cases might be viewed as more controversial, and so we approach them with questions, to which we offer our preferred answers:

1. Is it appropriate for public officials to seek advance notice of disclosure of scientific findings without policy relevance?

At first glance, the answer would seem to be no. Why should officials receive advance notice of findings that lack policy relevance? But there are two complications, which make a negative answer too simple. The first is that officials might not trust the scientists’ judgment about policy relevance; they might want advance notice of a very broad set of disclosures in order to test that judgment and to ensure that it is reasonable or right. The second complication is that some such findings might attract public attention, which means that communications offices and policy officials might want advance notice. For some and perhaps many agencies, it would be simplest to have no clearance process for scientific findings that fall in this category. But a more general clearance process might be justified, so long as it is defended and administered with the single goal of preventing surprises and allowing preparation for questions from the public.

2. Is it appropriate for public officials to seek to control the timing of disclosure of scientific findings without policy relevance?

At first glance, the answer again would seem to be no. By hypothesis, the disclosure will not produce real concerns from the standpoint of officials themselves. But if the findings are potentially newsworthy and might attract public attention, it would not necessarily be inappropriate for public officials to say: tomorrow, not today. Again, the debate would center on what the timing should be.

3. Is it ever appropriate for public officials to forbid the announcement of scientific findings, or to prohibit government scientists from presenting their work in public?

At first glance, the answer to this question is also no. Recall, however, that the principles announced during the Obama Administration do not seem to offer an answer. They forbid political interference with the substance of the science, with the ban on alteration of scientific findings. But they do not clearly forbid political officials from saying: you may not appear in public, or you may not say that in public.10

In some cases, such prohibitions might be legitimate. Suppose, for example, that political officials want scientists to do science—and not to travel to various places, to appear on panels, or to become public figures. Within any administration, the public appearances of high-level officials are policed (it is to be hoped for legitimate reasons). If controls on public appearances are based on a neutral principle (“do your job”), they are unexceptionable.

The most challenging cases arise when a ban on a public announcement grows out of some kind of political uneasiness with its content. If a scientist will say something in tension with a political commitment of the administration—for example, that genetically modified foods are dangerous, that secondhand smoking is not so dangerous, that depletion of the ozone layer is not such a problem—political officials might say: we will not alter what you say, but we do not want you to say it. It is not entirely implausible to suggest that while there should be a flat rule against political interference with content, there should be no such flat rule against political interference with public appearances or announcements.

We think that in a free society, such interference is clearly legitimate only when it is based on a neutral principle, and that it should be presumed to be illegitimate if it is based on political uneasiness with its content. In such cases, a prohibition on public appearances or announcements should be treated as analogous to interference with content, and should be governed by similar principles—to which we now turn.

4. Is it appropriate for public officials to control the content of disclosure of scientific findings with policy relevance?

This may well be the most important and challenging question. We think that the answer depends on the meaning of “control the content.”

(a) It would never be appropriate for policymakers to direct government scientists to misreport or misrepresent the science. Policymakers have no business distorting the evidence and the facts. This conclusion is consistent with that offered during the Obama Administration.11

(b) It can be appropriate for policymakers to direct government scientists not to venture into policymaking domains that do not involve the science, strictly speaking. If policymakers want to restrict government scientists to science, and to direct scientists not to offer judgments about regulation or legislation, they are entitled to do that so long as there is no conflict with their scientific integrity.

(c) So long as there is no violation of (a), it would be appropriate for communications offices and policy officials to consult with scientists to ensure clarity and intelligibility, and to work to prevent public misunderstandings of what the science shows. This might be justified (for example) to ensure against excessive or unjustified public fear. It is important, however, that a consultation is just that, and not an order to government scientists with respect to science itself. If the question is how to present the science accurately, scientists should have the final say, so long as the question is genuinely limited to science, broadly applied.

(d) Apart from (b) and (c), there should be a very strong presumption against political interference with the content of scientific communication by government scientists, or of scientists’ decisions about how to present their results. We recognize that some circumstances can test the strength of this presumption and that reasonable people might disagree on when, if ever, it might well deserve special treatment. More difficult examples would arise when a finding might have an adverse effect on some portion of the economy, or might conflict, in some sense, with the administration’s policy positions and goals. Policymakers might not welcome disclosure of new evidence that some widely used product might be carcinogenic, not because they distrust the science, but because they believe that the evidence might create an excessive public reaction that will have serious adverse consequences on millions of people. In imaginable circumstances, a desire to avoid an excessive public reaction could justify a stronger role for policymaking officials.

It would of course be entirely acceptable for policymakers to present their own interpretation of how to construe results, or of how they believe those results should inform policy. So too, policymakers might legitimately disapprove of a presentation because they think it has not been suitably qualified. It is also critical that agencies dealing with scientific topics include scientists with expertise, and do not exclude them on the basis of prior association with the agency under previous administrations.

5. Is it appropriate for public officials to control the content of disclosure of scientific findings with potential policy relevance?

The answer is the same as for (9). To be sure, we are speaking here of merely potential, rather than clear, policy relevance, but the relevant considerations are not different.

III. Conclusions

The following matrix summarizes our conclusions:

Table 1

  Policy Relevance Potential Policy Relevance No Policy Relevance
Advance Notice Yes Yes A qualified no
Control Timing Yes (with deadline) Yes (with deadline) A qualified no
Suggest (but not require) Content Changes Yes, but with limitations, e.g., for clarity and with the understanding that scientists can reject changes that they believe incorrectly alter or suppress scientific content Yes, but with limitations, e.g., for clarity and with the understanding that scientists can reject changes that they believe incorrectly alter or suppress scientific content No

Important questions remain, such as how to guarantee information flows in accordance with the foregoing guidelines. Our hope is that at a minimum, a clear set of principles can provide a framework under which any disputes can be settled or at least addressed in a systematic and well-defined fashion. Another question is whether and when government employees are entitled to speak in their individual capacity, even when disagreeing with the policy of the agency to which they belong. This is not our central concern here, and it is too complex to resolve in this brief Essay, but agencies should work to develop clear guidelines so that their employees can have clear expectations.

Free societies are deeply skeptical, and properly so, about any efforts to control the flow of scientific information, even when that information comes from government employees. We have attempted to vindicate that skepticism here, while also identifying the most legitimate bases for political coordination and intervention. Gray areas remain, but we are hopeful that the foregoing categories and distinctions provide a promising start toward achieving the ideal of maintaining the most transparent and robust uses of science in an open and democratic society.

  1. For the most elaborate public statement, see Memorandum from John P. Holdren, Dir. of the Off. of Sci. and Tech. Pol’y, to the Heads of Exec. Dep’ts & Agencies (Dec. 17, 2010), http://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/scientific-integrity-memo-12172010.pdf [http://perma.cc/H6VA-TU59].
  2. For one view, see The White House’s Scientific Integrity Directive, Union Concerned Scientists, http://www.ucsusa.org/our-work/center-science-and-democracy/promoting-scientific-integrity/SI-directive.html [http://perma.cc/K9UU-FD7Z]. Additionally, consider some of the statements from agencies. E.g., Communications Policy Language: Samples from a Variety of Agencies and Departments, Off. Sci. & Tech. Pol’y, http://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/SI-workshop-communications-guidance.pdf [http://perma.cc/4N6C-AAXN].
  3. See Holdren, supra note 1, at 2-3.
  4. The public documents may be found online. Scientific Integrity, Off. Sci. & Tech. Pol’y, http://obamawhitehouse.archives.gov/administration/eop/ostp/library/scientificintegrity [http://‌perma.cc‌‌/R29Q-WVBE].
  5. See, e.g., Dina Fine Maron, Trump Administration Restricts News from Federal Scientists at USDA, EPA, Sci. Am. (Jan. 24, 2017), http://www.scientificamerican.com/article/trump-administration-restricts-news-from-federal-scientists-at-usda-epa/ [http://perma.cc/L6UU-84FD]; Juliet Eliperin & Brady Dennis, Federal Agencies Ordered to Restrict their Communications, Wash. Post (Jan. 24, 2017), http://www.washingtonpost.com/politics/federal-agencies-ordered-to-restrict-their-communications/2017/01/24/9daa6aa4-e26f-11e6-ba11-63c4b4fb5a63_story.html [http://perma.cc/MAD3-STF9‌?type‌‌=image]; Angela Chen, Trump Silences Government Scientists with Gag Orders, Verge (Jan. 24, 2017, 3:58 PM), http://www.theverge.com/2017/1/24/14372940/trump-gag-order-epa-environmental-protection-agency-health-agriculture [http://perma.cc/U9ME-W8QZ].
  6. See, e.g., Kenneth R. Foster et al., Phantom Risk (1993) (exploring the public concerns and tort litigation that results from preliminary, inadequate, or inconclusive evidence of risks); Kenneth L. Mossman, Radiation Risks in Perspective (2007) (exploring the public overestimation of radiation risks); Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683 (1999) (tracing the cases of excessive public fear in response to scientific findings).
  7. On why this might be so, see Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 Yale L.J. 61 (2002) (arguing that people tend to focus on the adverse outcome, not on its likelihood).
  8. The National Science Foundation has made this explicit in the context of NSF scientists and recipients of federal funds. See NSF Public Communications & Media Policy, Nat’l Sci. Found, http://www.nsf.gov/news/policies_for_media.jsp [http://perma.cc/LNS3-W2F5] (“NSF-funded scientists and NSF staff have the fundamental right to express their personal views, provided they specify that they are not speaking on behalf of, or as a representative of, the agency but rather in their private capacity.”).
  9. On public reactions to such findings, see Cass R. Sunstein et al., How People Update Beliefs about Climate Change: Good News and Bad News, 102 Cornell L. Rev 1431 (2017) (arguing that people who are not sure human-made climate change is occurring and oppose an international climate agreement update their beliefs in response to unexpected good news but not unexpected bad news, and people who strongly believe human-made climate change is occurring and favor an international climate agreement update their beliefs far more in response to unexpected bad news than in response to unexpected good news).
  10. See Holdren, supra note 1.
  11. Id.