Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication Year
- Publication
-
- William & Mary Bill of Rights Journal (7)
- Faculty Publications (4)
- Nathan B. Oman (3)
- Popular Media (3)
- William & Mary Journal of Race, Gender, and Social Justice (3)
-
- Indiana Law Journal (2)
- Neal E. Devins (2)
- Seattle University Law Review (2)
- Articles by Maurer Faculty (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Books & Book Chapters by Maurer Faculty (1)
- ConLawNOW (1)
- Cory A DeLellis (1)
- ExpressO (1)
- Grant R Darwin (1)
- Honors Scholar Theses (1)
- James G. Dwyer (1)
- John C. Eastman (1)
- Scholarly Works (1)
- Sharon E. Rush (1)
- Tara L. Grove (1)
- University of the District of Columbia Law Review (1)
- Vincent J. Samar (1)
- Washington and Lee Law Review (1)
- Publication Type
Articles 1 - 30 of 42
Full-Text Articles in Entire DC Network
Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips
Marriage Mandates: Compelled Disclosures Of Race, Sex, And Gender Data In Marriage Licensing Schemes, Mikaela A. Phillips
William & Mary Journal of Race, Gender, and Social Justice
This Note argues that mandatory disclosures of personal information—specifically race, sex, and gender—on a marriage license application constitute compelled speech under the First Amendment and should be subject to heightened scrutiny. Disclosing one’s race, sex, or gender on a marriage license application is an affirmative act, and individuals may wish to have their identity remain anonymous. These mandatory disclosures send a message that this information is still relevant to marriage regulation. Neither race nor gender is based in science; rather they are historical and social constructs created to uphold a system of white supremacy and heteronormativity. Thus, such statements are …
Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle
Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle
Books & Book Chapters by Maurer Faculty
Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."
CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present …
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Tara L. Grove
No abstract provided.
The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman
The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman
Nathan B. Oman
No abstract provided.
Law, Religious Change, And Samesex Marriage Posted On, Nathan B. Oman
Law, Religious Change, And Samesex Marriage Posted On, Nathan B. Oman
Nathan B. Oman
No abstract provided.
Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman
Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman
Nathan B. Oman
Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …
How State Supreme Courts Take Consequences Into Account: Toward A State-Centered Understanding Of State Constitutionalism, Neal Devins
Neal E. Devins
No abstract provided.
Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer
Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer
James G. Dwyer
No abstract provided.
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove
Neal E. Devins
No abstract provided.
State Constitutionalism In The Age Of Party Polarization, Neal Devins
State Constitutionalism In The Age Of Party Polarization, Neal Devins
Faculty Publications
No abstract provided.
Marriage Equality Comes To The Fourth Circuit, Carl Tobias
Marriage Equality Comes To The Fourth Circuit, Carl Tobias
Washington and Lee Law Review
Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …
Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman
Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman
Faculty Publications
Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …
Same-Sex Parents And Their Children: Brazilian Case Law And Insights From Psychoanalysis, Helena Campos Refosco, Martha Maria Guida Fernandes
Same-Sex Parents And Their Children: Brazilian Case Law And Insights From Psychoanalysis, Helena Campos Refosco, Martha Maria Guida Fernandes
William & Mary Journal of Race, Gender, and Social Justice
This Article argues that maternal and paternal functions can be performed by same-sex parents from a psychological point of view. Consequently, the legal recognition of their relationship with their children meets the principle of human dignity pursuant to the Brazilian Federal Constitution.
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro
William & Mary Bill of Rights Journal
No abstract provided.
Naiming The States Where Loving Will Be Recognized: On Tea Leaves, Horizontal Federalism, And Same-Sex Marriage, Mark Strasser
Naiming The States Where Loving Will Be Recognized: On Tea Leaves, Horizontal Federalism, And Same-Sex Marriage, Mark Strasser
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Obergefell’S Prescription: Why The Fourteenth Amendment Trumps State Employees’ Free Exercise Claims, Douglas B. Mckechnie
Obergefell’S Prescription: Why The Fourteenth Amendment Trumps State Employees’ Free Exercise Claims, Douglas B. Mckechnie
ConLawNOW
Soon after the United States Supreme Court’s decision in Obergefell v. Hodges, some elected officials and civil servants objected to the requirement that same-sex couples be offered marriage licenses. In particular, they argued that a government employee whose job duties include issuing marriage licenses cannot be forced to do so if it would violate his or her religion’s dictates. This piece argues that position is unavailing as it ignores the jurisprudence construing the free exercise clause of the First Amendment as well as the mandate created by the Court’s interpretation of the Fourteenth Amendment in Obergefell.
Intestacy Concerns For Same-Sex Couples: How Variations In State Law And Policy Affect Testamentary Wishes, Megan Moser
Intestacy Concerns For Same-Sex Couples: How Variations In State Law And Policy Affect Testamentary Wishes, Megan Moser
Seattle University Law Review
As the number of same-sex couples increases in the United States, concerns regarding the evolution of federal and state law, with respect to rights for same-sex couples, also continue to rise. As marriage is not always available to same-sex couples, they often face very different legal issues than couples in a traditional marriage. Because marriage is typically not a legal cause of action, the question of a marriage’s validity often arises incidentally to another legal question, such as the disposition of a decedent’s estate.
Law, Religious Change, And Samesex Marriage Posted On, Nathan B. Oman
Law, Religious Change, And Samesex Marriage Posted On, Nathan B. Oman
Popular Media
No abstract provided.
The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman
The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman
Popular Media
No abstract provided.
Toward A New Separation Of Church And State: Implications For Analogies To Last Year's Supreme Court Decision In Hobby Lobby By This Year's Decision In Obergefell V. Hodges, Vincent Samar
Vincent J. Samar
No abstract provided.
Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer
Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James G. Dwyer
Faculty Publications
No abstract provided.
Cheating Marriage: A Tragedy In Three Acts, John C. Eastman
Cheating Marriage: A Tragedy In Three Acts, John C. Eastman
John C. Eastman
In his dissenting opinion in United States v. Windsor, Justice Scalia accused the Court of “cheating,” because it decided an issue that properly belonged to the voters. But the cheating that went on in the case, and the parallel case involving Proposition 8 in California, was also of the vintage variety. This article tells the largely untold story about the many machinations by elected officials and judges to produce the end result in favor of same-sex marriage, from conflicts of interest, to collusion by nominally “opposing” counsel, and finally to an aggressive refusal by high-ranking government lawyers (including one who …
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
Sharon E. Rush
This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …
Marriage Equality In State And Nation, Anthony Michael Kreis
Marriage Equality In State And Nation, Anthony Michael Kreis
William & Mary Bill of Rights Journal
No abstract provided.
Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis
Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis
Cory A DeLellis
This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.
Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez
Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez
Articles in Law Reviews & Other Academic Journals
Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries …
Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders
Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders
Indiana Law Journal
Essays on the Implications of Windsor and Perry
Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle
Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle
Indiana Law Journal
In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …
Proposition 8 Is Unconstitutional, But Not Because The Ninth Circuit Said So: The Equal Protection Clause Does Not Support A Legal Distinction Between Denying The Right To Same-Sex Marriage And Not Providing It In The First Place, Nathan Rouse
Seattle University Law Review
In Perry v. Brown, the Ninth Circuit held that Proposition 8 is unconstitutional. But in doing so, the court stepped back from the breadth of the district court’s decision. The Ninth Circuit did not address whether same-sex marriage is a fundamental constitutional right. Nor did the Ninth Circuit address whether the Equal Protection Clause categorically prevents states from limiting marriage to opposite-sex couples. Instead, the Ninth Circuit reached the narrow conclusion that Proposition 8 violates the Equal Protection Clause because it withdrew a preexisting legal right from a marginalized group without any legitimate purpose. The Ninth Circuit should have held …
Social Science Studies And The Children Of Lesbians And Gay Men: The Rational Basis Perspective, Carlos A. Ball
Social Science Studies And The Children Of Lesbians And Gay Men: The Rational Basis Perspective, Carlos A. Ball
William & Mary Bill of Rights Journal
This Article seeks to determine whether the social science literature on the children of lesbians and gay men precludes the government from relying on child welfare considerations to justify same-sex marriage bans and parenting restrictions affecting lesbians and gay men under the highly deferential rational basis test. Under that test, courts must uphold laws and regulations that have any conceivable basis of fact which is rationally related to a legitimate state interest. After comprehensively reviewing the social science literature, the Article concludes that the empirical evidence showing the lack of an association between parental sexual orientation and the psychological and …