• Professor Katharine Baker

    Katharine K. Baker

    Professor of Law

    – Go to her faculty biography

    – Go to her publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/katharine_baker/

    Marriage and Uniformity — A Post-DOMA Reflection

    by  • July 10, 2013 • Faculty Commentary • 0 Comments

    Baker_Katharine thumbBy Katharine Baker [via Zócalo Public Square, a forum discussion posted July 8]


    Within 24 hours of the Supreme Court striking down Section 3 of DOMA, marriage equality advocates and much of the media started bemoaning the patchwork nature of the federal marriage recognition that we are left with now that the federal government has gotten out of the business of defining marital status for itself. Now, the federal government will honor state determinations of marital status, but what happens if those state determinations differ? What of the same sex couple that gets married in Iowa and moves to Oklahoma? We may not know immediately whether the federal government will honor their marital status. Horrors! Such confusion! Such inconsistency! What a legal mess?

    Hardly. This legal mess is, after all, just what the plaintiffs in Windsor asked for. As of Tuesday, June 25, the day before the Supreme Court issued its rulings, uniformity and consistency were the arguments used by the defenders of DOMA. It was the need for uniform federal treatment of same sex marriage that explained why Congress acted rationally and sensibly in drafting DOMA, argued the losing side. The Court said no—notwithstanding the order and consistency that DOMA imposed on federal policy, it was too big a departure from traditional federal deference to state determinations of marriage, too much of a burden on one particular class of married people, and too much of an interference with the important institution of marriage.

    So by Thursday, June 27, uniformity and consistency had become the arguments for the other side. Progressive forces fighting the next battle, for a federal constitutional right to same sex marriage, are now arguing that uniformity and consistency are essential. But that is only because progressive forces now feel comfortable that the substantive law is trending in their direction. Uniformity is only worth fighting for if one likes the law that will become uniform. From 1996 until probably last November (when same sex marriage initiatives first began to prevail over conservative efforts to define marriage as between a man and a woman), uniformity was the last thing progressive forces wanted. (more…)

    Justice Alito: Right and Wrong

    by  • June 27, 2013 • Faculty Commentary • 0 Comments

    Baker_Katharine thumbBy Katharine Baker


    As someone who has spent considerable amount of time in the last two years working on amicus briefs in favor of yesterday’s Supreme Court decision striking down Section 3 of the Defense of Marriage Act, I will start by saying that—oddly enough—I think Justice Alito’s dissent in United States v. Windsor got one thing absolutely right: the equal protection framework “is ill suited for use in evaluating the constitutionality of laws based on the traditional understanding of marriage, which fundamentally turn on what marriage is.” Alito Dissent at 10-11. So instead of criticizing the Supreme Court for not declaring sexual orientation a protected class and thereby all but requiring immediate national recognition of marriage for same sex couples, I will praise the Court for providing a somewhat more muddled rationale.

    Indeed, today’s Supreme Court majority in Windsor did as the First Circuit did in its DOMA case, Gill v. HSS: It combined a dose of federalism, with a tablespoon of equal protection and a teaspoon of due process, mixed it together and rationally and sensibly concluded that Congress violated constitutional principles when it limited federal recognition of marital status to marriages between a man and a woman. The Gill court was actually a bit more transparent than Justice Kennedy. It acknowledged that the federalism concerns necessitated a kind of “rational basis plus” review. That “rational basis plus” review is essentially what the majority in Windsor used in striking down Section 3.

    Equal protection doctrine and equal protection doctrine alone is not well-suited to resolve the issues presented by same sex marriage because, as I’ve written elsewhere (see The Stories of Marriage), gay men and lesbians only have an equality right to marriage if marriage is not an inherently gendered institution. I, along with many others, do not believe that marriage is an inherently gendered institution. I, for one, would not have gotten married myself if I believed it was an inherently gendered institution. But everyone—on all sides of this question—is well aware that there is still significant social discord on this subject. Many people today, many more people 10 years ago, and almost everybody 50 years ago thought that marriage was an inherently gendered institution. Thus, the real question, as Justice Alito suggested, is who should decide how to define marriage. (more…)

    Baker — The “Good” in Sex

    by  • December 3, 2012 • Faculty Commentary, Faculty Workshops/ Conferences, Scholarship • 0 Comments

    This is the third post highlighting Professor Katharine Baker’s participation in a recent online symposium that discussed Georgetown scholar Robin West’s book Normative Jurisprudence: An Introduction. In the book, West argues that current “normative legal scholarship – scholarship that is aimed at criticism and reform – is now lacking a foundation in jurisprudential thought,” and she suggests a return to “the traditional understanding of the purpose of legal scholarship.”
    Below are some of Professor Baker’s thoughts (not included in the symposium) on Professor West’s explications and comparisons of John Finnis and Janet Halley’s analysis of the “good” in sex. Click here to access the full archive for the symposium at Concurring Opinions.

    By Katharine Baker


    Several months ago in The New Yorker, Jerome Groopman wrote a fascinating and disturbing article on the prevalence of a new antibiotic-resistant form of gonorrhea, known as the Kyoto strain. Part of what allows the Kyoto strain to grow resistant is its presence in the human pharynx (the back of the throat). Because, in the pharynx, the bacteria gets exposed to many other infectious microbes, including those that have developed resistance, the pharynx is an ideal ground for spawning antibacterial resistance. And, because when gonorrhea lives in the throat it rarely produces symptoms, it can go untreated for a long time. That means it is often spread unknowingly.

    Left untreated—or untreatable—gonorrhea can cause, in men, painful swelling and scarring to the testicles and urethra, occasionally leading to sterility. In women, it can cause pelvic inflammatory disease and infertility. Babies born to carrier mothers can be infected through the eyes and go blind. If the gonorrhea just stayed in the throat, none of these nasty things would happen. But it doesn’t; it spreads through fellatio. And it is spreading rapidly. Dr. Groopman concludes: “A driving factor behind the rise in gonorrhea infections, as well as the trend toward total antibiotic resistance, is our complacent attitude toward oral sex.”

    To Finnis, response to this problem could not be easier. Criminalize oral sex; there’s no value in it anyway. Throw both infector and infectee in jail; they both engaged in instrumental, pleasure seeking, non-procreative behavior of little to no value. To Halley and the queer theorists (and I am—unfairly to both—using Halley as the complete representation of all queer theory), innocent but disease-spreading sexual behavior would probably have to be seen as prima facie valid. Sex is such a powerful and transformative experience that the government must stay out. Only in extreme cases should we let the government restrain or regulate people’s decisions with regard to sex.

    For the great mass of us in between, I suspect, this is a hard issue. Unprotected oral sex is incredibly popular among young adults today. It is seen as so much safer than intercourse that many young adults do not even call oral sex “sex.” Without a concentrated effort to change norms regarding oral sex, it is going to be extremely difficult to stop the spread of this bacterial-resistant virus.

    Several years ago, Ian Ayres and I wrote an article (A Separate Crime of Reckless Sex, 72 University of Chicago Law Review 599 (2005)) in which we argued in favor of a law requiring condom use in all first time sexual encounters unless the unprotected nature of the sex was consensual. This was, we repeatedly emphasized, a very modest proposal. It regulated only first time sexual encounters (by the second go of the evening, people were left unregulated) and it allowed a defense of consent. Even so, many people found it outrageous. How could we endorse this kind of governmental interference with heterosexual sex?

    To stop the spread of this new form of gonorrhea, we might need governmental measures that are even more extreme. At an absolute minimum, a campaign to stop the spread of this disease will require a governmental effort to channel people into only certain kinds of sexual behavior. If science does not come to our rescue in the never ending war of drugs vs. infection, we could lose many, many battles with gonorrhea. Lots of people, especially young people could be badly hurt. The harms suffered will not just be those “soft” “feminist” harms of invasion and loss of control, they will be real, corporeal, painful, permanent hurts. And they would not be suffered just by sexual or racial minorities, but by mainstream youth. Is sexual freedom worth it? To answer that question, we really do need to have some consensus on the “good” in sex.

    Baker — Marriage Outside the Constitution

    by  • November 30, 2012 • Faculty Commentary, Faculty Workshops/ Conferences, Scholarship • 0 Comments

    This is the second of this week’s posts highlighting Professor Katharine Baker’s participation in a recent online symposium that discussed Georgetown scholar Robin West’s book Normative Jurisprudence: An Introduction. In the book, West argues that current “normative legal scholarship – scholarship that is aimed at criticism and reform – is now lacking a foundation in jurisprudential thought,” and she suggests a return to “the traditional understanding of the purpose of legal scholarship.”
    In the entry below, cross-posted from the original post on the Concurring Opinions blog, Professor Baker writes about “how marriage policy operates at a non-constitutional level and why the progressive failure to defend marriage should perhaps give us pause.” Click here to access the full archive for the symposium.

    By Katharine Baker


    This entry is about how marriage policy operates at a non-constitutional level and why the progressive failure to defend marriage should perhaps give us pause. It is far easier to find academics, including Robin several times in this book, writing about the dangers of relationships than the benefits of them. For decades now, legal academics have criticized the way the law insulates relationships, shields them from scrutiny, and allows them to be violent and patriarchal.

    It’s not that this critique is wrong, it’s just that it is highly likely that most of the people reading it, if not making it (at least all the straight ones) are enjoying most of the benefits of the institution being critiqued. Most educated middle class people are living in an insulated relationship, probably a marriage, which they mostly keep private, which they work very hard to maintain because they believe it has value and which provides for them deep sources of love and support and joy.

    For sure, not everyone experiences marriage or relationship this way, but as everyone from Charles Murray to Stephanie Coontz has explained, marriage is very popular and works very well for educated elites. We want to get married, we get married, we stay married, we do our damndest to raise our 2.3 children in a household with two married parents . . . but we somehow assume it is uncool to have a discussion about why this is our preferred way of living. We protect our relationships by not airing our dirty laundry; we cringe when we see a story about a divorce in which the parties make their dispute public; we don’t want that publicity to ever attach to us. But we continue to critique privacy, talking only about its harms, while its benefits shape our daily behavior.

    I am not suggesting that we reject the progressive critique of relationship or that we ignore the critique of privacy. But after a while those critiques lose their power when insulated, private relationships still thrive among the people making the critique. Given the support and love that can be found even in relationships that can be stifling and patriarchal, don’t we need to have a better understanding of what the advantages are and where they come from, so that we can try to emphasize the good while diminishing the bad in relationship? Given how hard it is to discuss one’s personal relationships in public, why did we ever think a victim of domestic violence would be willing to just walk into court and tell the judge about it? Might we not need to structure our legal interventions so as to protect privacy and not blow it apart?—because if we do not, she is never coming forward anyway. (more…)