A Conversation With Out-Spoken Professor Katherine Franke

Katherine Franke, James L. Dohr Professor of Law, began practicing law in the 1980s as a civil rights litigator focusing on HIV discrimination cases in the early years of the AIDS epidemic. “The boyfriend of my best friend in law school, Michael, died of AIDS in our third year, and then Michael died the year after we graduated,” says Franke, who graduated with a J.D. from Northeastern University School of Law in 1986. “It was a calling for me because AIDS was everywhere in my life.”

When she graduated from law school, Franke received a grant from the MacArthur Foundation. ”I worked on the discrimination people with AIDS faced daily from employers, landlords, health care providers—really everything," she says. “I then worked with the newly created AIDS unit at the New York City Commission on Human Rights. What I learned about myself doing litigation, however, is that I was good at it but it wasn’t good for me.” 

In the early 1990s, Franke took a hiatus in Costa Rica and wrote a “lesbian vampire novel” (unpublished) before earning an LL.M. and a J.S.D. from Yale Law School. Franke launched her academic career in 1995 at the University of Arizona James E. Rogers College of Law and then taught at Fordham School of Law from 1997 until 2000, when she joined the Columbia Law School faculty.

How has being an LGBTQ+ professor changed since you began your academic career?

Let me begin at the University of Arizona. I was one of two out lesbian professors, and the dean’s administrative staff and other members of the faculty regularly mixed us up. Even though we were different ages and body types, they just couldn’t tell us apart! Thankfully, that didn’t happen at Columbia. But the biggest difference is that now there are so many more LGBTQ+ students than there were in the 1990s. They’re more comfortable being out. They’re more present in classroom discussions and open about the issues they care about. . . . I now come out to my students pretty early in the semester—not with a big announcement, but I’ll say something about the gay community as we or my partner and then refer to her as she. I used to not do that comfortably. And I do it now as a seamless matter, partly so that all the students know they have a queer professor, and it’s just a normal thing, but also to let the queer students know that this is a space that should be safe for them.

Did you arrive at Columbia with the idea of starting the Center for Gender and Sexuality Law?

No, the first center I created was a center on law and culture with Professor Kendall Thomas. We ran that together for a few years, and then I moved on to found the Center for Gender and Sexuality Law, largely because I appreciated how many wonderful faculty we had at Columbia working at the intersection of gender and sexuality, and it made sense to build on the synergies that were possible by creating a center for teaching, advocacy, and programming. Later, we brought on Professor Suzanne Goldberg as the founding director of the Sexuality and Gender Law Clinic, and she was the co-director of the center for many years with me.

Did you ever consider teaching the clinic?

I’ve never taught the clinic, but I regularly bridge classroom and experiential teaching with the way I build into my classes hands-on skills by pairing students with nonprofits working on racial justice, gender, or sexuality law. They learn how to do Freedom of Information Act requests; they often help with the research for the reports, amicus briefs, or other advocacy that the center does. Right now, we’re doing a lot of legislative work around the Equal Rights Amendment (ERA), including briefings for senators in Washington and advocacy with the New York State Legislature.

We founded the ERA Project in January 2021 to establish a university-based think tank working on the ERA and to bring academic expertise to bear on the very challenging legal questions that surround its final ratification and with respect to what adding the ERA to the constitution will mean for sex-based equality.

How do you sell the ERA to those who don’t understand its importance?

Well, I don’t sell it. I just explain that it’s a colossal embarrassment for the United States that our Constitution is the only modern constitution that does not have specific sex equality protections in it. We are living with an 18th century constitution, and I think part of what we saw in Justice [Samuel] Alito’s leaked draft in the Dobbs case is that so much constitutional equality jurisprudence is still locked into an 18th century way of thinking about who are full citizens. Though we amended the Constitution in the middle of the 19th century, women’s rights or sex equality rights were not on the minds of the drafters of the 14th amendment.

Although we have passed a lot of legislation—both federally and on the state level—to ban sex discrimination, structural forms of discrimination based on sex persist, and the laws we have are not working or not working well enough. What’s wonderful about the ERA is that it’s a mandate to Congress, to the executive branch, and to the states to do an inventory of laws and policies to assess the ways in which they either embrace sex-based inequality or perpetuate it inadvertently. . . . The ERA would modernize the constitutional conception of sex equality, giving us the tools we need to dismantle structural forms of inequality using affirmative measures that get at the underlying determinants of gender-based injustice.

How would the passage of the ERA affect the discussion about abortion and Roe v. Wade?

It clearly would. When I talk to people outside the U.S.—where abortion rights have been secured by their courts or in their laws—they find it inconceivable that our Supreme Court takes the position that pregnancy-based discrimination is not a form of sex discrimination. . . . The ERA would close the gap between pregnancy-based discrimination and sex equality by embracing a much broader idea of the social meaning of pregnancy. Denying abortion rights or discriminating on the basis of pregnancy reproduces gender-based stereotypes that women should be mothers and at home taking care of children and that men should be in the labor market not burdened by pregnancy or reproduction.

What kind of work do you anticipate doing if Roe is overturned?

So many states have equal rights amendments in their constitutions securing explicit sex equality protections, so we’re turning to that language to defend existing rights to abortion or to challenge limits on access to abortion.

We also have innovative work going on in the Center for Gender and Sexuality Law’s Law, Rights, and Religion Project. We are preparing for religious liberty challenges to laws that criminalize access to abortion and the facilitation of access to abortion. We will be seeing a wave of lawsuits brought across the country that marshal pro-choice religious liberty arguments by people of faith for whom providing counseling about abortion or abortion services is part of their faith-based practices and beliefs. These lawsuits will tee up one of the most fundamental aspects of religious liberty: that it protects all religious beliefs. We see this new approach to abortion rights as critical to the reframing of reproductive justice in a post-Roe world, since polling shows us that the majority of people of faith in the U.S. actually support abortion rights, notwithstanding the fact that the Evangelical Christian right has been quite successful in claiming a kind of monopoly on religious views on abortion.

How have faith-based court challenges to masking and mandatory vaccinations for COVID-19 affected the concept of religious liberty?

The Evangelical Christian right treated COVID as an opportunity to radically advance the scope of religious liberty rights at the expense of public health and the compelling interests of the government in protecting public health. In these cases, they argued that they had a religious liberty right to be exempt from reasonable masking requirements and limits on large in-person gatherings. They found sympathetic audiences in federal court judges appointed by then-President Trump and in the new conservative majority of the Supreme Court. As I wrote in an op-ed in The Nation, “We have reached the point where the U.S. Supreme Court has become one of the greatest threats to public health and welfare in this country.”

“We have reached the point where the U.S. Supreme Court has become one of the greatest threats to public health and welfare in this country.”

They then built on the COVID cases—after all, if the religious liberty rights of churchgoers could supersede the government’s compelling interest in managing a deadly global pandemic, surely laws protecting abortion, same-sex marriage, and trans rights would have to yield to religious objectors as well. And that’s exactly what’s happened: Last year, in Fulton v. Philadelphia, the Supreme Court upheld Catholic Social Services’ argument that it had a religious liberty right to refuse to certify anyone except married heterosexual couples as qualified foster parents— in violation of the city’s human rights law—even when it was contracting with the city of Philadelphia to perform this service. The decision in Fulton secured a radical new way of treating religious liberty rights, one that elevates them to a top-tier, superior to all other constitutional and fundamental rights, leaving racial, sexual orientation, sex, and other equality rights—and even the right to be safe during a pandemic—as second-tier rights that must yield to religious objectors.

What are the stakes in this new tiering of constitutional rights?

The weaponization of religious liberty is not limited to the domains of sex, sexuality, and public health, and we find no limiting principle in the court’s rulings. Religious liberty claims have been used by employers to override workers’ rights to unionize, to a minimum wage, and to equal pay, and to avoid laws banning child labor and sexual harassment. So too, religious liberty has been used to challenge laws regulating divorce, domestic violence, child welfare, sexual assault, and child pornography.

How did your first book, Wedlocked: The Perils of Marriage Equality, which examined parallels between same-sex marriage and the experiences of newly freed Black people being able to marry for the first time after the Civil War, lead to your second book, Repair: Redeeming the Promise of Abolition?

When I was doing the research for Wedlocked, I spent months in archives in Mississippi, North Carolina, South Carolina, and Georgia. I stumbled upon stories of Davis Bend, Mississippi, and Beaufort, South Carolina, where newly freed people had been granted large tracts of land with the understanding that the land represented reparations for enslavement, where they could create independent Black communities apart from white people to build new lives. And all of that land was stolen from them after President Lincoln’s assassination and returned to their former enslavers in ways that were heartbreaking—to the formerly enslaved people then and to us today.

It was very important for me to write Repair in a way that wasn’t my telling their story, but them telling their story—to the extent I could—through primary source materials that serve as evidence of newly freed people’s intentions and plans for what freedom meant to them. Repair is a way to think about how history continues to make moral demands of us in the present and that we address the ongoing injuries and wrongs of the past.

How did you see your role as a white woman writing about reparations?

I wrote this book very much wanting to lift up the voices and the experiences of freed Black people. The intended audience for the book, for the most part, was other white people today because I feel that we have an obligation to take up the issue of reparations and the intergenerational debt owed to Black people for enslavement. It’s not just something for the Black community to deal with. It’s something for white people to deal with because it’s our history, too.

You’ve described Wedlocked and Repair as “academic books for non-academic audiences,” and you frequently write newspaper opinion pieces and essays for magazines, such as “Diary of a Queer Kid,” in which you write about being a girl who called herself Kurt. Do you have a publishing philosophy?

Writing for an academic audience means reaching very few readers, which is why it’s important for me to write in a way that takes the complex issues that we think about as academics and makes them accessible to a larger audience. “Diary of a Queer Kid” is the most personal of anything I’ve ever written. I was sitting in my home in the Catskills, reading about the things that Texas Gov. Greg Abbott was saying about trans and queer kids and their being taken away from their families, and it was just too much. It devastated me.

I wrote the piece to express how even for someone like me, who is in a very privileged and protected safe space, I feel like we’re never safe, really. They will always come for us. I also thought, these are kids. It’s really hard to be a kid who’s weird or different from other kids. And for it to be not only one’s peers who are ridiculing and attacking you but the government in which you live—it just moved me to my core.

What’s your favorite course to teach?

Whatever I’m teaching at the moment. I do especially love teaching an elective for 1Ls called Critical Legal Thought. It’s a class where I offer students a range of ways to think critically about law and legal education and for them to validate the sense that there’s more to law and to their first year courses than what is in the curriculum. . . . The class is designed to be a kind of life raft for students who think, “I made a huge mistake in coming to law school. I don’t agree with a lot of what I’m being taught.” The class gives them the critical tools to examine their intuitions more deeply and apply them to the first-year curriculum. We go through contracts, property, torts, and all the foundational classes, and then critique them from the perspective of legal realism, critical race theory, feminism, law and society, queer theory, law and humanities, and other writings that contest the premises of the official story of law’s justice told in casebooks.

You’ve also been an adviser to two newly minted J.S.D.s—Zeina Jallad ’08 LL.M. ’22 J.S.D. and Lihi Yona ’14 LL.M. ’22 J.S.D.—and you posted a jubilant photo on Twitter of you and Professor Kendall Thomas with them at the 2022 graduation. What was special about advising them?

I have known them both for over 10 years, since they started at Columbia as LL.M. students. They both took a seminar with me on academic legal writing, and they read and edited each others’ work. Zeina is the first Palestinian person ever to earn a doctor of laws. Lihi is Israeli and a Mizrahi Jew and has connected the insights of critical race theory in the U.S. to racial and ethnic minorities in Israel.

It takes a long time to write a dissertation, and it was particularly so for Zeina as a Palestinian because it was exceptionally difficult for her to get a visa and financial support to do her research outside of the Palestinian Territories occupied by Israel. She wrote good parts of her dissertation during periods when the electricity went out pretty regularly and there were food and gas shortages. The kind of doctoral work she has done in a sustained way is phenomenal in its own right, but particularly phenomenal given the challenges she’s had.

For me, it has been exhilarating to see Lihi and Zeina grow in their thinking and writing, complete their dissertations and pass their defenses in the same month, and then come to the United States and walk across the stage together. It’s so gratifying for me as a scholar and a professor to witness and play a role in their scholarly and academic careers.

This interview has been edited and condensed.