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Lessig Blog Archives: Jennifer Brown / Ian Ayres Guest Entries

Love, Family, and Fairness, or How to Raise a Gay Friendly Child

Imagine that one day you hear your child at play say to another “The way you throw is so gay.” It seems “gay” has become a catch-all insult. How do you respond?

You could just let it pass. After all, home and family should provide a refuge from the clamor of the outside world. Gay rights are fine, you might think, but social change is something that happens out there, in society, not within our walls. Then again, maybe social change must begin at home. Many heterosexual people —even those who avoid political activity — have become allies in the struggle for civil rights simply by the way they talk to their children. Want to join them? If so, read on for ten things you might say if you want to raise a child who can love, accept, and — as fate might have it —even be a happy person who is gay.

1. “Some day you might meet a special person and decide to spend the rest of your life making a family with him or her.”

Thousands of parents each year learn that their children are gay, and then recall with pain the ways they may have embarrassed or shamed their children simply because they presumed the kids were heterosexual. We who have children who are still young have the chance to treat our children the way many of these older-but-wiser parents wish they had treated their own. We can assume that our children might be straight or gay.

2. “We think you should choose your friends by what they’re like on the inside and how they treat other people, not because they are boys or girls.”

We don’t claim that you can engineer your kid’s sexuality. But think about it: don’t you want to raise your child to value the content of character rather than the shape of the body? If this is true of friendships when they are young, maybe it can also extend to romance as they grow older.

3. “Look, son, Santa brought you just what you asked for: a princess dress!”

Don’t freak out if your daughter wants to be Robin Hood or your son wants to be Cinderella. Subject to your child’s inclinations and tastes, buy clothing and toys without regard to gender (this can be a challenge, since marketing is often shockingly gender specific).

4. “In some places, two men or two women can get married, and some churches and synagogues also celebrate religious weddings for these couples.”

If your daughter comes home from school and says, “I love Betsy so much we’re going to get married!” resist the urge to tell her, “girls can only marry boys.” When you talk to your kids about marriage, describe the current state of affairs accurately, but also help them aspire to a future that is more just.

5. “Uncle Bill likes to date men rather than women.”

Talk with your kids about the LGBT people in your life (relatives, coworkers, neighbors, fellow church members). Answer questions in ways that are simple and matter-of-fact: “Uncle Bill has fallen in love with Joe and they want to be together for the rest of their lives.” Let your kids know that these romantic relationships make Uncle Bill feel happy.

6. “Did you know Harvey Fierstein is gay?”

Broadway giant Harvey Fierstein (better known to kids as the voice of “Yao” in Disney’s Mulan) is only one example of openly gay, prodigiously talented people recognizable to children. Cluing kids in to this diversity is a good thing. We know, we know, “Heather Has Two Mommies” has become short hand for a sort of earnest multi-culturalism that some find easy to dismiss. But remember: Education Secretary Margaret Spelling threatened to cut funding for the PBS children’s program “Letters from Buster” because one episode featured a family headed by two women. In such a world, parents who care about diversity may have to be a little more deliberate.

7. “I’m sorry, son. We can’t join the Boy Scouts because they discriminate against gay people.”

Instead of the Boy Scouts (now famously on record for anti-gay policies), consider the YMCA, Campfire Boys and Girls, or Jewish Community Centers (here is a longer list of kids’ programs that do not discriminate on the basis of sexual orientation). If you belong to a group that excludes people or treats them differently because they are gay, either quit or work for change — and let your children see you doing that work.

8. “Is this a ‘welcoming’ house of worship?”

Does your house of worship welcome and affirm LGBT people? Does it countenance openly gay clergy? How (if at all) does it treat issues of human sexuality in religious ed or youth group discussions? You can get involved with your denomination’s national LGBT group and learn how they are working for liturgical or doctrinal reform. If change is not possible and you remain within the fold, at the very least you need to tell your child that your conscience leads you to reject anti-gay elements of the religious doctrine.

9. “Is this school willing to hire gay teachers?”

What will your child learn about homosexuality at school? Explore the curriculum (if any) on puberty, sexuality, or reproduction. Find out if the school library contains resources on sexuality that will be helpful to kids who have questions. Does your child’s middle or high school have a gay-straight alliance? Believe us, parents who don’t support gay rights are asking these questions all the time. Make sure your school hears from a gay supportive perspective, too.

10. “I am so happy and honored that you’ve told me you’re gay, and I want to support you in any way I can.”

This final statement might be the most important of all.

You don’t have to carry a sign, march in a parade, or fly a rainbow flag to support gay rights. You can take small but crucial steps along your daily path, especially in your decisions as a parent. Granted, there’s a lot about sex, sexuality, and politics that’s way too complicated to explain to young children. But that doesn’t mean gay rights issues are taboo. Children understand three things very clearly: love, family, and fairness. And when you get to the heart of it, these values are what the gay rights movement is all about.

Jennifer Gerarda Brown

How can you promote marriage equality?

4 p.m. EST update on June 7, 2005: I’m told the pledge form is working again. My apologies for the inconvenience.

Despite the Goodridge victory in Massachusetts, the battle for same-sex marriage has only begun. Many states have passed constitutional bans on gay marriage. Opponents of equal marriage rights even seek to amend the U.S. Constitution.
The Vacation Pledge for Equal Marriage Rights encourages states to take the landmark step to democratically legalize same-sex marriage.
Why is legislative action so important and how can individuals help to promote it?

President Bush’s claim is that the proposed Federal Marriage Amendment is necessary to stop “activist judges” from forcing same-sex marriage on a resistant populace. The president justifies the amendment in the name of “democratic action” and “the voice of the people.” But as I’ve argued in the Hartford Courant and LA Times, the amendment is fundamentally anti-democratic: It would prohibit states from legislatively embracing equal marriage rights. If one brave state could use the legislative process to extend marriage to same sex couples, it could disprove the assertion that only “activist judges” want marriage equality. This might impede the rush to write discrimination into the US Constitution.

Here’s how it works: by signing the pledge, individuals promise to take a vacation in the first state that enacts same-sex marriage through a popular or legislative vote, within three years after the legislation takes effect. Many states rely heavily on tourism revenues, and the Vacation Pledge creates a concrete incentive for a state to do the right thing.

Taking a vacation is a small price to pay for greater equality. Will you sign?

Asking Different Questions in a “Don’t Ask, Don’t Tell” Army

Here’s a proposal for making progress toward equality in the military that is again an example of both ambiguation and informational incrementalism. It comes from Chapter 6 of Straightforward.

Ian and I support the repeal of “Don’t Ask, Don’t Tell.” But is there anything that can be done as a precursor to changing this law?

Imagine that every soldier upon entering the military was asked a simple question.

Would you prefer to serve in a command without any gay personnel?

Soldiers would know that if they answer “No” they would be assigned to an “inclusive” command, and that if they answer “Yes” they would be assigned to an “exclusive” command.

Asking this question does not violate “Don’t Ask, Don’t Tell” because it does not ask a soldier about his or her own sexual orientation. But it nonetheless is likely to promote a kind of voluntary integration in the inclusive command. In an essay just published in the Michigan law review, we argue that:

The benefits of the inclusive units would be threefold: amelioration (of current discrimination), demonstration (that DADT is not necessary to preserve unit cohesion), and realignment of political allies and enemies (creating a common cause for pro-gay legislators on the left and pro-defense legislators on the right). The proposal is dynamic, not static. The hope is that inclusive commands would so effectively demonstrate the benefits of integration that, over time,
increasing numbers of service members would opt for integrated nits. From there, the step to universal, mandatory integration of sexual minorities into the armed forces would be smaller and more easily taken.

You can learn more about this proposal in an essay we published in the Michigan law review and see comments to an earlier post that Ian made to Balkinization.

Gay Like Me

In his 1995 Chicago Law Review article, The Regulation of Social Meaning, Larry Lessig discussed some of the rhetorical devices that can change a society’s shared understanding of the meaning conveyed by a given word or action. One of these, Lessig explained, was “ambiguation,” which gives “a particular act, the meaning of which is to be regulated, a second meaning as well, one that acts to undermine the negative effects of the first.” In Straightforward: How to Mobilize Heterosexual Support for Gay Rights, we argue that when heterosexuals tolerate ambiguity about their own sexual orientation, they use ambiguation to promote equality for LGBT people.

In 1959, a white man named John Howard Griffin took extreme measures to adopt the perspective of African-Americans: he shaved his head, chemically altered the color of his skin, and traveled the South for two months in the guise of an itinerate black man. He recounted his experiences of racial prejudice and hatred in Black Like Me, which became a national bestseller and opened the eyes of many white Americans to the evils of Jim Crow. By literally walking a mile in his brothers’ shoes, Griffin was able to gain not only a greater understanding of racism, but a greater sense of solidarity with Black Americans.
Today, heterosexual Americans have similar — if far less dramatic — opportunities to adopt the perspective of their brothers and sisters who are gay, lesbian, and bisexual. There is no skin dye, no bodily marker, to allow a heterosexual to follow Griffin’s model, but we should consider the potential in words or well-chosen silence to allow straight Americans even momentarily to have “Gay Like Me” experiences.
Ambiguation has long been deployed by gay, lesbian and bisexual people when they are closeted. But coming out can be ambiguating, too, because people who come out are bound to defy the preconceptions of their audience — by being individuals, not categories. The process of coming out can thus ambiguate — in the core sense of producing multiple and more varied meanings.
If gay peoples’ “coming out” is ambiguating, so too might be heterosexual peoples’ “going in.” This “going in” for heterosexual people could include a variety of moves: permitting confusion about whether or not they are gay; foregoing opportunities to identify opposite sex partners as spouses; making affirmative statements that align them with gay, lesbian, and bisexual people, and not qualifying those statements with disclosure of their own heterosexuality. And just as Griffin promoted civil rights for African-Americans by even temporarily assuming a black identity, so too heterosexuals can promote gay rights by tolerating greater ambiguity about sexual orientation.
To see how this might work, consider an example from Lessig’s Chicago article: the case of Denmark, King Christian, and the Star of David. Legend has it that when the Nazis invaded Denmark and demanded that Danish Jews wear the yellow Star of David on their clothing, King Christian X began to wear a Star of David on his own clothing. Soon all Danes were wearing the Star, confounding Nazi attempts to set the Jews apart from their countrymen. As Lessig explains:

“The Nazis required Jews to wear yellow stars. Wearing a star had then a particular meaning, in part constructed by disambiguating who were Jews and who were not, thereby facilitating the expression of racial hatred. Danes who opposed the racism of the Nazis then began to wear stars themselves. Their action then ambiguated the meaning of wearing a star. Now wearing a star meant either that the person was a Jew or that the person was a Dane supporting the Jews. Their action also tied the Danes to the Jews: now Danes were seen as supportive of the Jews.”

Can we find contemporary analogs to the Star of David, symbols of homosexuality that could be appropriated by non-gay people in liberating directions?
Gay rights advocacy groups have taken advantage of opportunities to use ambiguation. On National Coming Out Day, many people wear buttons or stickers expressing gay-affirmative messages. When, even for a day, people identifying with a broad range of sexual orientations all wear the gay-identified pink triangle, they literally replicate the Danes’ legendary appropriation of the Star of David. For that one day, at least, sexual orientation is ambiguated, because it is not clear: does a person wear a triangle to come out (on that day of all days of coming out) or to express support for and solidarity with LGBT people as they come out? And does it matter why we wear the triangle that day?
Or consider our friend (a lesbian we’ll call Sarah) in Madison, Wisconsin. Vandals broke a window and burned the rainbow flag Sarah had flown from her front porch. When Sarah talked with her neighbors about the attack on her home, one of her neighbors, who is heterosexual, suggested that all of the houses on the street should put up rainbow flags to show solidarity and support. The flags would say to the vandals, in effect: “Do you want to persecute gay people? Well, you’ll have to come after all of us, too.” Like the non-Jewish Danes who wore the Star of David, a street full of neighbors flying gay pride flags could protect and support through ambiguation.
Michael is another friend of ours whose sexuality became the stuff of conversations, all because of one simple action he took. In 1996, the Association of American Law Schools began to publish in its annual directory a list of law professors who self-identified as “Gay, Lesbian and Bisexual Community Law Teachers.” In 1998, Michael, then a junior professor at a Midwestern law school, first appeared on the list. The reactions were varied. Surprise: “I thought he had a girlfriend.” Political: “Maybe Michael placed himself on the list in an act of solidarity.” Postmodern: “Michael wants to subvert sexual orientation categories, which are artificial and oppressive.” Some of these conversations missed the point; others were helpful as they caused people to focus on the purpose of the list and the criteria for legitimate membership in the group it purported to represent.
We may never know Michael’s motivations for joining this list (Michael has not responded to our efforts to discuss the list and his appearance on it — such conversations would, after all, be disambiguating; we thus obscure his identity and offer this analysis only tentatively, and decidedly not with the intent to judge him negatively). If Michael is indeed gay or bisexual, the story may be much simpler than all the gossip and analysis would suggest. Suppose for a moment, though, that Michael is heterosexual. Suppose that he joined the list not to come out but rather to change the social meaning of the AALS list of “Gay, Lesbian and Bisexual Community Law Teachers.” Suppose he joined the list as an act of solidarity (that is, to declare himself a member of the community which includes (but is not limited to) gay, lesbian, and bisexual law professors). Such a move would not only ambiguate the list, it would be a voluntarily self-ambiguating move.
More famously, Richard Gere has frequently refused even to acknowledge or discuss rumors that he is gay, except to say that “denying it would denigrate homosexuals.” By refusing to deny rumors of his homosexuality, Gere declines the invitation to place himself outside of a group of people he wants to validate and uphold.
But there are risks in ambiguation. It is important to be sensitive to the fact that this strategy will not be appropriate always and everywhere. At times, it might run counter to the goals of LGBT groups and individuals. To avoid these pitfalls, we suggest that allies ask themselves the following questions:

Am I trivializing sexual orientation?
Ambiguation can be viewed negatively if it appears to be “playing” with homosexuality in trivializing ways. Much is at stake, so ambiguate with care.

Do I predict that my audience will think less of me if they perceive me to be gay, lesbian, or bisexual?
Ambiguating may be most constructive if the audience is likely to hold a negative view of homosexuality. When heterosexual allies allow such an audience to place them in a disfavored category, they gain an opportunity to challenge some of the assumptions leading to that disfavor. It is also in these settings that they follow most closely in John Howard Griffin’s footsteps, as they gain a chance to empathize a bit with gay, lesbian and bisexual people.
If, on the other hand, the audience for the ambiguating act is gay friendly or gay neutral enough that it would make no difference to them, then ambiguation may be merely misappropriation of gay identity. Assume for the sake of argument that Michael, the Midwestern law professor, is heterosexual. Did his act of ambiguation succeed? The AALS list is not a Star of David. It carries no negative connotations — for the AALS that created it or for the now hundreds of people who appear on the list. Standing in solidarity with an oppressed group of people who are under attack is one thing; joining the group when it is being affirmed is another thing entirely.

Should sexual orientation be irrelevant to the discussion or transaction at issue?
Ambiguation creates noise or distortion in the signal of sexual orientation. If people’s “true” sexual orientation — that is, sexual orientation as lived and experienced — is appropriately part of the conversation or transaction, then “noise” created by ambiguation will be disruptive. If, on the other hand, signals about sexual orientation are being used to disempower or oppress gay, lesbian, or bisexual people, then interfering with those signals might be the moral thing to do.
We’ve already seen an example of each situation. To the extent Michael’s appearance on the AALS list inserts some noise into the signal, it might actually run counter to the goals of the list. In contrast, when Sarah’s house in Madison, Wisconsin was vandalized and her gay pride flag burned, flags on every other home might have helped to take sexual orientation out of the calculus of who would be safe, rendering sexual orientation irrelevant.

Can I entertain some internal ambiguity about my own sexual orientation?
All of us, straight and gay, have absorbed negative messages about homosexuality. If the process of ambiguating and the rationales for it help us to examine and perhaps resolve some of these negative messages, the process is constructive. Still, these are extremely difficult questions for many people to ask themselves. One key point about ambiguation is that it should be authentic and true. So much harm has been done by the closet and the deception it requires. We should avoid deceptive remedies, even if they have noble goals.

Would Lambda Approve?
The LGBT community is less likely to support trivializing or self-aggrandizing attempts at ambiguation and more likely to support ambiguation that reflects genuine introspection or is deployed when sexual orientation should not be relevant to the question at hand. In some ways, our substantive questions reflect the kinds of concerns that community members have often raised. To measure this, you could personify the community in an organization like Lambda and imagine the response your ambiguation would get.

Ambiguation in Action
Finally, if it’s OK, then how exactly would an ally go about ambiguating? The following list provides a few suggestions of the sort of thing one could do or say to create an ambiguating effect. Note that while these suggestions falls short of actual misrepresentation, they all raise questions about sexual orientation. And to the extent the speaker allows those questions to go unanswered, others might rethink their assumptions about when and why sexual orientation is relevant.

1. Avoid gender specific terms like “husband” or “father” and instead use terms like “partner” and “parent.”
2. Fly a gay pride flag from your home or put one in sticker form on your car.
3. Wear a pink triangle button or other gay-affirmative symbol. Simply wearing a T-shirt that says “I support gay marriage” can send a powerful message and raise questions.
4. When discussing gay people and their perspectives, experiment with phrasing that aligns you with gay and lesbian people without clearly identifying your own sexual orientation. For example, say something like “those of us who are gay might take umbrage at the claim that child rearing does not occur in families headed by same-sex couples.” Particularly if the audience for this sentence contains people with anti-gay sentiments, a sentence that potentially aligns you with gay people may be an equality-enhancing move.
5. When a person says something to suggest that he or she has misperceived your sexual orientation, think carefully before jumping to correct. If correcting the misperception will raise that person’s estimation of you, it might be better to remain in their disfavored category.
The key element in all of these examples is a willingness to occupy a large, uncharted space in which sexual orientation is unassigned, where multiple realities or possibilities are entertained, and where heterosexual people reflect long and hard before they expend any energy to distinguish themselves from gay, lesbian and bisexual people.
Creating critical masses of heterosexual people willing to take these risks could be one of the central challenges of gay rights advocacy in the 21st century.

On Privilege and Straightforward

I really enjoyed reading the comments on my post from yesterday, and the many responses those comments engendered. Several people have already said much of what I would say to explain our references to privilege and the role it plays in mobilizing heterosexual allies.
One point I should be up front about: Straightforward is unabashedly written for an audience that is already on board with the idea of equality for gay, lesbian, and bisexual people. The book does not attempt to marshal arguments against discrimination on the basis of sexual orientation. We’re assuming that our readers already agree with us about that and now seek ways to put their beliefs into action. Readers who seek reasoned argument on this first point might find the following books of interest: Gaylaw by William Eskridge, The Gay Rights Question in Contemporary American Law by Andrew Koppelman, or Virtually Normal by Andrew Sullivan. But even if you’re not a gay rights supporter, our hope is that you’ll find some of the ideas we highlight this week in the blog to be thought provoking at the least.
I understand the resistance to a concept like “heterosexual privilege.” It can be difficult, even a bit threatening, to face the ways an unequal system gives us advantages that are denied to others. And this is true whether the advantage is based on sex, race, sexual orientation, or where our parents went to college (if they went to college). It just seems to be a fact of life that it’s a lot easier to see inequality when you’re on the disadvantaged side of the transaction than when you end up on top. So as a white woman, I don’t really see the way race affects my life, but I’m quite aware of gender (e.g., taking greater precautions when I walk to my car in a dark parking lot, or making a point at a meeting that goes unacknowledged until a male colleague repeats it). In our discussion of privilege, we’re challenging people of good faith to raise their awareness of the rights and abilities they have and take for granted as heterosexuals, and to see how these are sometimes denied to LGBT people. Our hope is that readers will stick with us through that challenging process and read on.
Jennifer Gerarda Brown

A couple of comments I found particularly helpful and with which I would concur:
Jens wrote:

“Privileges”, at least in this context, are not merely “rights”. Privilege is unequal access: “a special right … granted or available only to a particular person or group of people” [New Oxford American Dictionary]. Eliminating privilege thus means fairer access to rights.
“Heterosexual privilege” can be a tough concept to see. Two examples of a minor privilege come to mind. First: A bi female friend of mine once told me she was afraid to hold her girlfriend’s hand while they were driving [in Phoenix], because there were a lot of jacked-up trucks whose drivers could look down right into their small car and might yell insults at them, or worse. Second: my father, who is quite liberal, once mentioned that he was fine with people being gay, but on the streets in San Francisco why did they have to “flaunt it” by holding hands or kissing where people could see them?
Both illustrate a pervasive and invisible privilege: to be able to express affection to someone you love (or maybe just are flirting with), without the well-founded fear that you might as a consequence be yelled at, harassed, beaten up or even killed for it.

And Rob Rickner helpfully “unpacked the verbiage” this way:

The term “heterosexual privilege” seems to be used in this article to bring forward the benefits heterosexuals receive for being the dominant sexuality. Heterosexuals get lots of advantages … both legal and social. By calling it a privilege, the authors simply force heterosexuals to recognize the advantages they have, often unknowingly, received for most of their adult lives. This seems to be Step 1: recognizing the advantages you have. It may be a little alienating for an equality minded individual to have to admit they are higher on the totem-pole, but right now it is a reality we have to deal with.

Rob Rickner also cited as examples our points about Boy Scouts and “ambiguation,” and we’ll post longer entries about those soon.

Jennifer Gerarda Brown

Managing Information (and Privilege)

Let me take a stab at mapping out what Ian and I are going to try to accomplish over the next week. As Larry mentioned, we’ve just published Straightforward - which makes the argument that mobilizing heterosexual support is crucial to making progress on securing equal rights for gay, lesbian, and bisexual citizens. The book is packed with advice about what people can do - on personal and public levels.

But what we really want to stress here over the next week are a series of informational innovations that can promote equality in the military, in the boy scouts (and other discriminatory organizations), in marriage, and in the workplace. The Fair Employment mark fits right in with the theme of informational incrementalism. By certifying one piece of information - that a business does not discriminate - we might be able to induce a substantial number of employers to privately opt into ENDA, a proposed federal statute that Congress has been unwilling to enact.

The first chapter of our book discusses how we might set out to manage heterosexual privilege. We highlight three approaches: exploiting, renouncing, and disabling privilege. We also suggest informational strategies for implementing each approach. We’ll try to suggest factors that counsel allies to speak out specifically as heterosexuals, and others that suggest it’s better to leave sexual orientation ambiguous.

Over the next week, you’ll see the way our proposals attempt to harness the support of heterosexual allies, and the important role that information plays in that process. It shouldn’t surprise the readers of this blog that managing information turns out to be a powerful way to manage privilege.

Jennifer Brown / Ian Ayres Guest Entries

Thanks for the Fish

The Lessig blog community is pretty amazing. Self-regulating, constructive, challenging.

Looking back I hope you can see how we paid off on our promise of informational incrementalism

We’ve suggested that discrimination in the military might be ameliorated by asking a simple question.

We’ve suggested that discrimination by the boy scouts might be ameliorated by mandating a private conversation.

We’ve suggested that marriage discrimination might be ameliorated by collecting vacation pledges.

We’ve suggested that employment discrimination might be ameliorated by certifications of legal promises not to discriminate.

We’ve suggested that discrimination in a variety of contexts might be ameliorated by leaving your sexual preference ambiguous (and we’ve provided concrete suggestions when to and when not to ambiguate).

All of these suggestions are centrally about the management of information. It shouldn’t be surprising that cyberspace is a great tool for progress - and one that we explicitly try to exploit both at www.fairemploymentmark.org and www.vacationpledge.org.

We particularly hope that you will join us in pushing for employer adoption of the Fair Employment mark. Lots of people want to know what they can do to make concrete progress in the struggle for gay rights. Well, private employment is a great place to start. Title VII of the 1964 Civil Rights Act is widely regarded as the most important law passed since World War II. The simple idea that employees should be able to sue for discrimination in employment is of course the heart of that law. But more than half of U.S. employees have no right to sue for sexual orientation discrimination. Refusing to hire someone because of his or her sexual orientation is wrong and there is now something that we can do about. Please ask your boss to license the mark. Or if you’re on the board of a non-profit that hires a few people, ask the board if it will promise not to discriminate.

If interested, you can catch us in person at one of the following book events:

Wed. June 8, 7 p.m.
A Different Light Bookstore
489 Castro Street
San Francisco, CA 94114
(415) 431-0891

Sat., June 18, 3 p.m.
Chicago PFLAG
Sidetrack
3349 N. Halsted St.
Chicago, IL
(773) 472-3079

Sun. June 19, 11:30 a.m.
William Way Community Center
1315 Spruce Street
Philadelphia, PA 19107
(215) 732-2220

Sat. June 25th, 2 p.m.
Yale Bookstore
77 Broadway
New Haven, CT 06511
(203) 777-8440

Tue., June 28th
Human Rights Campaign
Washington D.C.
(202) 628-4160
www.hrc.org
Details to be announced

The week has flown by. We leave much richer thanks to you. So Long.

Ian Ayres & Jennifer Gerarda Brown

And Now For Something Completely Different — Options instead of Property

Larry Lessig has led the charge in showing that the IP law has gone overboard in extending property rights. In lots of contexts, we would do better with mandated licensing fees that give non-owners the option to use and pay a fee.

I’ve just published a book called Optional Law: The Structure of Legal Entitlements (University of Chicago Press) that not only formalizes the advantage of optional licenses but also shows there’s a dizzying array of optional entitlement structures that can dominate traditional notions of property. The book suggests a variety of new mechanisms for protecting IP and shows how many of them have been used in unnoticed ways in traditional common law decisionmaking.

Conceptually, this book asks how a court might want to allocate entitlements among individuals when the court is imperfectly informed about the individuals’ values. Imagine that a court is trying to decide which of two disputants should control a particular entitlement. Each disputant knows her own value for the entitlement, but the court sees only an unbiased probability function of each disputant’s value. The court, among other things, wants the entitlement controlled by the higher-valuing disputant.

How should the court structure the parties’ legal entitlements? A first intuition is that the court should simply give the entitlement to the individual with the higher expected value. This “mean” allocation rule would make a great deal of sense if the court were merely choosing among property rules; but we will see — through the lens of option theory — that giving the initial entitlement to the disputant who is, on average, lower-valuing can at times produce higher allocative efficiency.

Imagine for example that a court’s best guess is that a plaintiff’s value is equally likely to take on any value between 5 and 105 and that a defendant’s value is equally likely to take on any value between 40 and 60. You might think that the court would do better to give the entitlement to the plaintiff (who has a higher average valuation of 55 instead of 50). But it turns out that efficiency is substantially increased if we give the entitlement initially to the defendant but give the plaintiff the option to take for a price of 50 dollars.

This result is, of course, counter intuitive. But there are a bunch of others as well:

Where there are calls, there must be puts. Once traditional liability rules are seen as “call” options, it is natural to ask whether “put” options are or should be used by the law. Calabresi and Melamed saw that defendant polluters might pay for the right to pollute or that plaintiff pollutees might pay for the right to stop pollution, but they did not focus on who gets to decide whether payment would be made. Traditional liability rules are more like call options because they give the payor the option of forcing a sale. But it is also possible to give payees the put-like option of forcing a purchase. Instead of giving a polluter the option to pay for the right to pollute, the law might give a pollutee the option to be paid for giving up her entitlement to clean air. Put-like protections for pollutees seem startling, but they in fact are the normal “election of remedies” granted to a plaintiff whose property rights have been infringed upon. For example, if the polluter instead builds an encroaching fence on the pollutee’s land, it would be normal to give the pollutee the choice of injunction or permanent damages for the encroachment.

Courts can decouple distributive and allocative concerns. Appreciating the possibility of put options is the first step in expanding a courts’ choice set. Allowing a defendant to pollute if she chooses to pay a million dollars should produce the same allocative equilibrium as giving the defendant a put option to sell her pollution right for a million dollars, but very different wealth distributions. Indeed, there are an infinite number of option implementations that produce the same allocative equilibrium, but merely divide the expected payoffs differently between the disputants. For example, asking the defendant to choose between paying $800,000 to pollute and receiving $200,000 to forego polluting should produce an identical allocation as the foregoing call and put implementation but provides an intermediate distribution of payoffs. Enlightened courts are thus free to maximize allocative efficiency (by delegating the allocative choice to the more efficient litigant) without sacrificing concerns of equity or ex ante investment incentives.

Two heads can be better than one. While traditional liability rules delegate the allocation choice to a single-chooser (either the plaintiff or the defendant), it turns out that it is also possible for courts to create an option that delegates the allocational choice to both parties — by allowing either disputant to veto a particular allocation. For example, a court might grant an initial entitlement to the plaintiff but give the defendant a call option to take the entitlement for $X, and give the plaintiff an entitlement to take back for $X or for $X + Y. “Dual chooser” rules of this kind can produce, under certain conditions, systematically higher expected payoffs than more traditional single-chooser rules. They give both parties a hand in deciding who will ultimately control the entitlement and thus can harness both sides’ information. And as with put option rules, it turns out that dual chooser rules are already being used in the common law.

Property protection has been with us for a long time. But optional protections have a lot going for them. They can better harness the parties’ private information, they can better promote equity and they might can even better promote trade.

You can read the first chapter here for free or (gulp) buy a copy of the book here and read comments on a earlier Balkinization post here.

Ian Ayres

A New Marriage Decision (for Heterosexuals)

A little over one year ago, the Massachusetts Supreme Judicial court made history with its 2004 decision in Goodridge, generating a new option for gay couples: marriage. We all know the controversy (and state constitutional amendments) these changes have wrought. Much of the focus has been on same-sex couples and their choices: will they travel to marry? Will they seek to transport their marriages across state lines and impose them on unwilling home states?

Less noted has been the new and difficult choice presented to heterosexual couples: Now that it is possible to marry in a jurisdiction that does not discriminate on the basis of sexual orientation, is it moral for heterosexuals to marry in discriminating states?

To understand this dilemma, imagine you were living in Virginia when the state still prohibited interracial marriage. Even if you wanted to marry someone of the same race, wouldn’t you consider traveling to a neighboring state that did not discriminate?

From now on, every heterosexual couple that wants to marry must face the same question. After all, they can marry in Massachusetts knowing their new status will be fully recognized at home. And Massachusetts will not invoke its hateful 1913 “reverse evasion statute” to turn away heterosexual couples, as it has some out-of-state same-sex couples.

Some will protest that planning a wedding is tough enough; requiring long distance planning is unrealistic. But for many couples, Massachusetts is only a short drive away. What if a couple lives across the road from Massachusetts? Or ten miles away? At some point, the distance becomes small enough that people who care about equality should be embarrassed not to make the journey.

Moreover, the truth is that for decades, couples have taken their weddings on the road, marrying in, say, Hawaii for scenery or Las Vegas for kitsch. Now they can travel for a different value: equality. It helps that Cape Cod, the Berkshires, and Boston’s historic neighborhoods offer lovely venues for weddings and receptions. Mitt Romney said he did not want Massachusetts to become the Las Vegas of “gay marriages.” But legalizing same-sex marriages could also make Massachusetts the Las Vegas of straight ally marriages – as “hetero holdouts” travel to the Commonwealth to avoid marrying in a discriminatory jurisdiction.

The choices created by Massachusetts marriage equality do not end with travel plans. Even couples who marry at home in discriminating states have some decisions to make. Consider the wedding invitation itself. Even though most LGBT people would never think of raising the issue with their marrying heterosexual friends, they could quite reasonably harbor feelings of disquiet and pain that they are excluded from the very institution they are asked to celebrate. One might think that marriage rights for same-sex couples in some jurisdictions would reduce such feelings of pain and resentment. But a couple’s choice to marry in a discriminatory state even as non-discriminatory options become more readily available may exacerbate negative feelings.

Perhaps a personal note could accompany invitations to gay and lesbian friends. A couple could apologize for marrying in a state or church where their friends cannot. An explanation, such as concern for a sick parent who cannot travel to Massachusetts, might also help.

Couples make all sorts of choices about their ceremony. They could include a public statement of support – a prayer or blessing, for example — specifically acknowledging the love and commitment of gay and lesbian couples who cannot marry.

Heterosexuals who marry might devote some combination of time and money to work for change. As newlyweds, they could spend their honeymoon in Massachusetts and reward the state that has done the most to promote marriage equality. In lieu of gifts, couples might ask wedding guests to contribute to freedomtomarry.org or Gay & Lesbian Advocates & Defenders, the organization that won the Massachusetts case (and continues to fight for marriage equality). Even if the bride and groom don’t request it, wedding guests could donate on their own initiative, contributing in the couple’s honor. Guests can still buy a toaster or table cloth, but it makes sense to buy a slightly smaller gift and redistribute part of the money in the interest of people who are unfairly prohibited from marrying.

Even clergy people have decisions to make. For instance, in 2003 about a dozen clergy from Connecticut and Massachusetts refused to sign marriage licenses for heterosexual couples until unions between same-sex couples are legally recognized. Their motive was not to renounce the tainted benefits of discrimination, but to avoid facilitating the discrimination itself. There are always two ways to end disparate treatment; in a world where same-sex couples can’t marry, refusing to legally marry everyone does the trick.

Meanwhile, Massachusetts’ innovation gives all of us some choices. Supporters of gay rights, regardless of sexual orientation, may want to reward the state for its progressive stance. Instead of the negativism of boycotts, a grassroots campaign should declare a marriage “buycott.” Summer 2005 looks like a great time to visit Massachusetts.

A single state has provided a truly global public good. Massachusetts is offering the right to marry without regard to sexual orientation. The rest us of us are now challenged to construct an appropriate response.

IP Pop Quiz

Name a type of intellectual property that the owner can’t practice?

If you own a patent, you can practice your own invention.
If you own copyrighted material, you can certainly publish and sell it.
If you own a trademark, you can certainly put it on your products.

In contrast, I think the certification mark is the only type of intellectual property that owners can’t use themselves. Owners are are only allowed to license the intellectual property to others

The owner of the Good Housekeeping Seal can’t put it on the its own products (such as the Good Housekeeping magazine). The idea is that it is too severe a conflict of interest to certify your own goods or services as complying with the requirements of the certification mark.

So what? Well sadly this means that Jennifer Brown and I are the only employers in the world that can’t use the Fair Employment license as a means of committing ourselves to non-discrimination.

And it’s interesting that the Fair Employment mark can potentially protect employees in other countries. That’s right. It’s not just away for any U.S. business to opt into ENDA, but the fair employment mark gives businesses in any other country an opportunity to make a legally binding commitment not to discriminate. Just as Jennifer and I can enter into a contract with an Italian business to buy flowers, we can enter into a contract with the same firm whereby we grant them a license to use the certification mark and they make a contractual promise not to discriminate.

So let us be clear. Non-U.S. readers of this blog, we welcome you to license the mark as well. Ask your boss if she is willing to promise not to discriminate. Of course, it might be unduly burdensome for Italian employees to sue in U.S. courts but some non-U.S. jurisdiction would even give local employees (third-party beneficiary) rights to sue at home based on business’s contract with us.

This imperialistic potential for the Fair Employment mark also suggests a dimension on which the mark is more powerful than a federal statute. The mark would allow non-US business to provide non-discrimination coverage for their workers. If ENDA was passed as federal legislation, it would mandate domestic compliance, but in contrast it wouldn’t even give foreign employers the option of having their employees coverage.

Maybe Congress should rethink the jurisdictional scope of its laws. Like the fair employment mark, maybe Congress should allow foreign businesses and individual to opt into certain U.S. regimes if they want to. If a non-US firm wants to be covered by Title VII’s prohibition of sex and race discrimination, maybe Congress should given them an option to opt into a contract with the United States. There might even be contexts where it would be in our interest for Congress to even allow opt-in enforcement. If a non-US firm said it wanted to be bound by the NLRA or Title VII, maybe it wouldn’t be bad to empower the NLRB or EEOC to enforce the promise - analogous to the way that traditional certification mark owners certify compliance with their marks.

Book Contest

1. We’ll send a free book to the first person who gets a business with at least 10 employees to license the fair employment mark.

2. We’ll send a free book to the person who gets the largest number of employees covered by the license in the next month.

3. We’ll send a free book to anyone who gets a business with more than 100 employees to license the mark.

To enter the contest 1) get a business/employer to license the mark on line at www.fairemploymentmark.org, 2) send an email to ian.ayres@yale.edu with the subject line “free books” and tell me the names of the business or businesses that you got to license the mark as well as your mailing address. If the business has a webpage, please send a link for that as well.

I will check to see that the businesses did in fact license at our site.

As I said in an earlier post, the licensing agreement can provide protection for non-US employees. So this is a contest in which anyone in the world can participate.

Here’s a pre-emptive strike against those who will want to rail against the contest idea. The books aren’t really free - you have to do something to get them. But that something is trying to provide others with a basic civil right - a legal remedy for the harms of discrimination.

Jennifer and I will provide a lot (but not all) of the book’s ideas for free in the coming week. We should have talked with Princeton University Press about the idea of making the entire book available — at least for a limited time. But we are willing to spend our own money (and believe me these books are not free to us either) to try to launch the mark by getting some more licensees.

The Three A’s - Acknowledge, Apologize, Act

Our proposal for a new statute requiring private warnings and acknowledgements can also be applied at the individual level. Instead of just thinking of the duty to warn as a legislative mandate, we might start thinking of discrimination warnings as a personal moral duty of both the discriminatory organizations and their members.

Take for example my church …

I’m Episcopalian (and have been teaching Sunday school for the last three years). The Episcopalian Church still discriminates against same sex couples. I can religiously marry the woman I love, but my sister who is gay cannot religiously marry the woman that she loves.

[Now some readers do not accept the characterization of this marriage prohibition as being a type of discrimination. But imagine for moment that you did consider it to be a form of invidious discrimination. Or imagine for a moment that the church that you loved engaged in a form of invidious discrimination on some other dimension (such as gender).]

What should I do in response to this discrimination? Well, Jennifer and I worked hard in getting the vestry of our local parish, St. Thomas in New Haven, to pass a resolution requesting that the clergy of the parish consider same-sex candidates for marriage on the same basis as different-sex candidates. The movement for the resolution was spear-headed by a group of heterosexual couples who wanted their children to grow in a church that truly embraced equality.

But the Bishop in short order called us on the carpet saying that Canon law did not allow same-sex marriage. He forbade us from ending the discrimination by religiously marrying same-sex couples.

This is a point where the moral duty to warn kicks in. My parish was prohibited from marrying same-sex couples, but neither the bishop nor the cannon law prohibit us from warning potential members that the Episcopalian church treats same-sex couples differently than different sex couples. We might even require our current members to sign statements acknowledging that they are choosing to associate with an organization that discriminates on the basis of sexual orientation with regard to marriage.

Isn’t there a moral duty to warn people about things that they might find repugnant — especially if you find it repugnant? Reasonable people can make different choices about whether it is appropriate to work for change inside or outside a discriminatory organization. But if you’re working for change inside, you should at least let a potential member know that he or she is making this kind of choice.

Just the act of private acknowledgement is a power force for change. Few organizations or people could distribute such warnings or make such acknowledgements without doing something more.

Indeed, it natural to move from acknowledgement to apology and action — the three A’s. A church in warning about its mandated policies of discrimination would have a powerful calling to go forward and apologize for the discrimination that it is for the moment saddled with. And ultimately acknowledgement and apology would be a powerful impetus for action to change the underlying discrimination itself. Acknowledgement and apology is not a stable equilibrium – something has to give.

It’s hard to acknowledge that you associate with a discriminatory organization. Here’s a personal exercise that you can complete right now in the privacy of your home or cubicle. Do you attend a church that discriminates on the basis of sexual orientation on whom it will marry? Can you bring yourself to literally sign your names to these words: “I acknowledge that I am choosing to associate with a church that discriminates on the basis of sexual orientation”?

Here’s a confession. Jennifer and I believed that we were doing this, but we couldn’t bring ourselves to put pen to paper.

We delivered from this dilemma by Rector. The bishop wouldn’t let us marry same sex couples. But Father Michael Ray ended discrimination another way. For now, St. Thomas will not marry either same- or different-sex couples.

Requiring Private Discrimination Warnings

Lots of the comments to Jennifer’s posts worried that managing information meant (a) lying or (b) burdening individuals’ rights of association.

But here’s an informational proposal for dealing with the Boy Scouts’ discrimination that promotes both honesty and informed association.

The Supreme Court in 2000 struck down the application of New Jersey’s civil rights statute as applied to the Boy Scouts. If a private organization wants to discriminate against gays, the Court found they have a constitutional right to do so.

Jennifer and I in the book and in an article at AlterNet argue that New Jersey might pass a new statute that mandates a private conversation between organizations that wish to retain the right to discriminate and their potential members. The organization would have to privately disclose to potential members that it discriminates AND members would have to privately sign an acknowledgement (which would be kept on file by the organization for the possibility of in camera court review) that they wish to associate with an organization that retains the right to discriminate.

Lots of people worry that public disclosure would chill associational rights. I might be deterred from joining an unpopular group if the public get to know about it and harass me.

But requiring a private conversation of this kind facilitates freedom of association. The right to association is also the right of people not to (unwittingly) associate with organizations that have policies that they view to be repugnant.

Or to put it another way, our contractual silences always have some default meaning. Right now in New Jersey, if a private organization remains silent about discrimination when speaking to its members, this means they retain the option of discriminating on the basis of sexual orientation. There is no constitutional reason why the New Jersey legislature can’t flip this default. They could ordain that private organizations that fail to privately disclose (and obtain acknowledgements about) their policies that are in derogation of general civil rights restrictions will be deemed to accept those restrictions.

Ian Ayres

Why Would Anybody in Their Right Mind …

The Fair Employment licenses and the Creative Comment licenses face similar kinds of resistence. We often hear people say that no employer in its right mind would volunteer for legal liability. But this sounds a lot like people who say that noone in their right mind would ever throw away potential copyright revenues.

But it turns out that there are lots of parallel reasons why adopting these licenses make plenty of sense.

First and foremost, committing to equality is good business. 88% of the public opposes employment discrimination against gay and lesbian workers. And licensing the fair employment mark could be a great recruiting tool. [The parallel here is that giving away part of your copyright bundle of rights can still let you sell books or services or get your ideas out in ways that can produce revenue.]

The cost of allowing private suits is incredibly low. The GAO studied 11 states which had already prohibited employer discrimination. In the average year only 6/100th of a percent of employees brought claims of sexual orientation discrimination. Even if an average claim costs an employer $100,000, this would represent an extra cost per employee of only $1.67 per year. Employers who voluntarily sign up are even less likely to face liability. Employers who operate in the 15 states and dozens of municipalities that independently prohibit this type of discrimination have no additional exposure. [The parallel here is that there are plenty of copyrights that would never have produced revenue anyway — so you have nothing to lose by giving it away.]

Most importantly, promising not to discriminate is the right thing to do. Licensing the mark doesn’t mean that an employer can’t contest claims of discrimination. It just means that the business can’t stand up in court and say “we have a right to discriminate against gay and lesbian employees if we feel like it.” [The parallel is the most obvious — setting copyright information free is a powerful engine for social good.]

Mark(et)ing Nondiscrimination

A little-known piece of intellectual property, the certification mark, provides a viable mechanism for employers to commit not to discriminate on the basis of sexual orientation. With just a few clicks of the mouse, at www.fairemploymentmark.org any employer in the country can license the “Fair Employment Mark.” It is an innocuous symbol, an “FE” inside a circle:
There are lots of parallels to the Creative Commons. Both are reinventions of traditional intellectual property licenses to make the world a better place.

Employers that are committed to the idea of employment equality for gay and lesbian workers don’t have to wait for federal or state legislation. They can privately adopt the legislation themselves.

You can learn more about the mark either in Chapter 4 of our new book or in this draft law review article.

The idea is simple, really. By signing the licensing agreement, an employer gains the right (but not the obligation) to use the mark and in return promises to abide by the word-for-word strictures of ENDA (the proposed federal statute that would prohibit employment discrimination on the basis of sexual orientation). Displaying the mark on a product or service signals to knowing consumers and employees that the company has committed itself not to discriminate on the basis of sexual orientation.

Other certification marks (such as the Good Housekeeping Seal, the Underwriters Laboratory, and the Orthodox Union marks) require the mark holder to police the certification to insure compliance with the requirements of the licensing agreement. But the licensing agreement for the Fair Employment mark allows employees and applicants to enforce the ENDA duties directly as express third-party beneficiaries of the agreement. The Fair Employment mark thus replicates the core enforcement mechanism of ENDA by creating private causes of action in the same class of individuals who would gain protection under the statute.

The license is also incredibly transparent. No need to worry that Ayres and Brown will be litigious or hold up licensees for money. We disclaim any personal right to sue for breach of the non-discrimination promise and licensees can terminate their license at anytime. It is clear we are not profiting from this venture because we charge no licensing fee. The substance of the licensees’ duties is also clear. We did not try to improve on ENDA, just to copy it. Since ENDA requires a filing of claims within 180 days, so does our license. Since ENDA would allow arbitration agreements, our license would as well.

The mark represents an incremental strategy in the struggle for equality. Most importantly, the mark holds out the possibility of extending substantive ENDA rights - especially rights to sue for discrimination - to potentially millions of workers and applicants who are currently uncovered.

But the mark also provides a “demonstration” effect. It provides Congress with information that might quell concerns about ENDA. The mark provides a mechanism for producing case law about the language of a statute before the statute is ever enacted. The mark thus provides legislators with information about the ways a statute might be interpreted by courts, as well as the rates of litigation the statute might engender.

It is somewhat surprising, but to the best of our knowledge, this license is the first time that private contractors have intentionally taken the language of proposed legislation and inserted it into private agreement.

People in the United States strongly support the simple idea that employers should not discriminate against gays and lesbians. In a 2003 Gallup poll, a whopping 88 percent of respondents said that “homosexuals should … have equal rights in terms of job opportunities.” Even prominent conservatives — such as George W. Bush — at least give lip service to the idea that employment discrimination on the basis of sexual orientation is wrong.

But gay rights advocates have made only limited legislative progress on this issue. Fifteen “blue” states have prohibited employment discrimination against gays and lesbians. At the federal level, the “Employment Non-Discrimination Act” (ENDA) has been introduced several times in Congress without success. ENDA has virtually no chance of passing during the Bush administration.

A boatload of prominent corporations - including the likes of AT&T, Coors, IBM and General Mills - have already come out and endorsed ENDA. Virtually all the corporate endorsers of ENDA already have nondiscrimination policies that include sexual orientation. But the pretty words of nondiscrimination policies sometimes turn out to be only that. If an employer discriminates against an applicant because she is gay, it is far from certain that the employer would be liable for breach of contract - even if the employer has a non-discrimination policy.

Lots of businesses say they oppose this kind of discrimination. They adopt policies and endorse ENDA. Few employers, given the chance, would opt out of race discrimination laws. Few employers would opt out of ENDA if a waivable version were enacted. Now, with the Fair Employment mark, they have the opportunity to opt in.

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