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Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

For four decades, the Supreme Court has engaged in a determined, systematic and successful effort to transform and tame Brown v. Board of Education. But in this article, written for a symposium on Brown at 70, I suggest a surprising counterweight to the standard narrative. If one takes modern doctrine seriously -- a big if, I concede-- it has the potential to support some progressive goals.

In particular, modern doctrine might provide progressives answers to three questions:

1. Are race-conscious but facially neutral means of increasing diversity at state institutions of higher education constitutional?
2. Are legacy admissions to state run institutions …

Family Law By The Numbers: The Story That Casebooks Tell, Laura T. Kessler

Utah Law Faculty Scholarship

This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field.

The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages …

Homosexuality During The Transition From Weimar Republic To Third Reich, Abigail Minzer

Student Publications

Homosexual communities successfully formed prominent subcultures during the Weimar Republic for a multitude of reasons: scientific research and educational outreach to the public about the inborn nature of homosexuality, less strict media censorship laws, and a vague anti-sodomy law that was difficult to enforce led police to often prefer tolerance over prosecution. The Third Reich brought about a deep cultural shift that would prove incredibly harmful to the homosexual communities. While at first, homosexuals had not been a targeted group largely thanks to Hitler’s personal friendship with a gay Nazi named Ernst Röhm, the latter’s sexuality became the center of …

Having Your Cake And Eating It Too? Religious Freedom And Lgbtq Rights, Stephen Matthew Feldman

Faculty Articles

In Obergefell v Hodges Justice Anthony Kennedy wrote for a majority holding that samesex couples enjoy a constitutional right to marry as part of substantive due process Yet in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission his majority opinion held that the Free exercise Clause invalidated government sanctioning of a baker who had refused to bake a cake for a samesex couples wedding reception In both cases the Court reasoned that the government must maintain neutrality when confronted with competing viewpoints The Masteriece Cakeshop Court concluded the state Civil Rights Commission had violated this requirement by impugning the bakers …

Intimate Liberties And Antidiscrimination Law, Deborah A. Widiss

Articles by Maurer Faculty

In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.

During the 1980s and 1990s, several …

(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen Matthew Feldman

Faculty Articles

Substantive due process issues implicitly concern voice Whose voice will be heard Although such issues often remain submerged the Justices occasionally translate them into disputes over democratic participation and power The Supreme Courts most important substantive due process decision in years Obergefell v Hodges entailed such a battle over democracy The multiple dissenting opinions insisted that the decision demeaned the opponents of samesex marriage many of whom were inspired by traditional values and religious convictions The majority explicitly disagreed reasoning that the case resolved the rights of samesex couples to marry and did not diminish the opponents voices The dissenters …

White Women Wanted? An Analysis Of Gender Diversity In Social Justice Magazines, Corey Lee Wrenn, Megan Lutz

Diversity and Social Movements Collection

The role of media in collective action repertoires has been extensively studied, but media as an agent of socialization in social movement identity is less understood. It could be that social movement media is normalizing a particular activist identity to the exclusion of other demographics. For instance, Harper has identified white-centrism in anti-speciesist media produced by the Nonhuman Animal rights movement and supposes that this lack of diversity stunts movement potential. Using the lesser-studied Nonhuman Animal rights movement as a starting point, this study investigates two prominent Nonhuman Animal rights magazines. We compare those findings with an analysis of comparable …

Pluralism And Its Perils: Navigating The Tension Between Gay Rights And Religious Expression, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.

The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster …

A Word Of Warning From A Woman: Arbitrary, Categorical, And Hidden Religious Exemptions Threaten Lgbt Rights, Leslie C. Griffin

Scholarly Works

Religious exemptions have already undermined women’s rights. Now exemptions threaten gays and lesbians. The Constitution protected women’s equality and liberty until religious exemptions eroded them. Today, as gays and lesbians stand on the threshold of marriage equality, religious exemptions threaten to diminish their hard-earned constitutional right. For this reason, I argue it is past time to reject the religious exemption theory of religious liberty, which privileges religion over civil and constitutional rights, in favor of neutral laws that govern all. Religious exemptions pervade American law in numerous ways that are harmful to civil rights.

In this essay, I identify three …

Glorious Precedents: When Gay Marriage Was Radical, Michael Boucai

Journal Articles

In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, three marriage cases made their way to and beyond trial: Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State. This article offers a detailed account of that early trilogy. Drawing on extensive archival research and on interviews with key players in each case, it shows that, contrary to received wisdom, Stonewall-era marriage litigation was faithful to gay liberation’s radical aspirations. The Baker, Jones, and Singer lawsuits …

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

Scholarly Works

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

The Sneetches As An Allegory For The Gay Rights Struggle: Three Prisms, Peter Nicolas

Articles

In this essay, I invoke both versions of Dr. Seuss's The Sneetches as an allegory for the modern struggle for gay rights in the United States viewed through three different prisms. The first and most obvious of these prisms is the battle between the heterosexual majority and the gay minority represented by the two groups of Sneetches. Members of the majority seek to distinguish themselves with markers of social acceptance such as marriage, parenting, and military service, as well as access to certain other markers of social acceptance, including the ability to donate blood and become members in private organizations …

Two Dads Are Better Than One: The Supreme Court Of Virginia's Decision In L.F. V. Breit And Why Virginia's Assisted Conception Statute Should Allow Gay Couples To Legally Parent A Child Together, Lauren Maxey

Law Student Publications

This comment examines whether gay men can have a child through a surrogacy arrangement in Virginia and whether gay men can retain parental rights through surrogacy contracts under the Virginia Assisted Conception Act. The Virginia laws affect gay males and gay females equally, but this comment addresses the issues arising with same-sex couples in the context of gay dads. Part II provides a background of surrogacy and specifically discusses surrogacy in relation to same-sex couples. Part III provides a general background of adoption and the establishment of parentage rights. Part IV describes the Assisted Conception Act, the legislative history of …

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

Habermas, Same-Sex Marriage And The Problem Of Religion In Public Life, Darren R. Walhof

Peer Reviewed Articles

This article addresses the debate over religion in the public sphere by analysing the conception of ‘religion’ in the recent work of Habermas, who claims to mediate the divide between those who defend public appeals to religion without restriction and those who place limits on such appeals. I argue that Habermas’ translation requirement and his restriction on religious reasons in the institutional public sphere rest on a conception of religion as essentially apolitical in its origin. This conception, I argue, remains embedded in a standard secularization framework, despite Habermas’ claim to offer a new account of secularization. This approach betrays …

Save Our Children: Overcoming The Narrative That Gays And Lesbians Are Harmful To Children, Anthony S. Niedwiecki

Publications

This paper focuses on how gay rights activists had no real choice but to use the court system to advance marriage rights for same-sex couples because they were unable to use the political process to effectively rebut the claim that gays and lesbian were harmful to children. Part I begins with an overview of the ways in which the initiative process has been used to limit gay rights and prevent marriage equality. It then details how, in contrast to the political process, courts have been more receptive to advancing marriage rights for same-sex couples. Part II details Walter Fisher's narrative …

Don't Ask, Don't Tell: Employment Discrimination As A Means For Social Cleansing, E. Gary Spitko

Faculty Publications

In December 2010, President Barack Obama signed into law the “Don’t Ask, Don’t Tell Repeal Act of 2010,” which provided for repeal of the policy prohibiting gay people from serving openly in the military, after consideration of a Department of Defense review on the implementation of such a repeal. This article examines the history of the exclusion of openly gay people from military service in the United States from the early twentieth century up until the time of the repeal. The author concludes from this review that the dominant purpose of the military’s exclusion of openly gay people was to …

Queer (In)Justice: Mapping New Gay (Scholarly) Agendas, Giovanna Shay, J. Kelly Strader

Faculty Scholarship

The 2011 book Queer (In)Justice surveys involvement of sexual minorities in all phases of the what the authors term the "criminal legal system." It examines the treatment of LGBTQ people as criminal defendants, victims, and prisoners. Queer (In)Justice moves beyond the typical focus of gay rights activists and scholars in the criminal law area to address the everyday treatment of LGBTQ people by police, prosecutors, courts, and corrections authorities. Relying heavily on prison abolitionist movement thinking, the book calls into question reliance on criminal punishment as a means of combating violence against LGBTQ people. Although largely anecdotal, and sometimes over-heated …

Dating The State: The Moral Hazards Of Winning Gay Rights, Katherine M. Franke

Faculty Scholarship

On August 1, 2009, a masked man dressed in black carrying an automatic weapon stormed into Beit Pazi in Tel Aviv, the home of the Aguda, the National Association of GLBT in Israel. He opened fire on a group of gay and lesbian teenagers who were meeting in the basement for "Bar-Noar," or "Youth Bar," killing two people and wounding at least ten others. This terrible act of violence attracted immediate national and international attention and condemnation. President Simon Peres declared the next day:

[T]he shocking murder carried out in Tel Aviv yesterday against youths and young people is a …

Why Did Californians Pass Proposition 8? Stability And Change In Public Support For Same-Sex Marriage, Gregory B. Lewis

PMAP Publications

Despite numerous public opinion polls indicating that California voters would defeat Proposition 8, a proposed constitutional amendment to limit marriage to one man and one woman, Election Day 2008 brought an end to six months of marriage equality for same-sex couples. This paper explores four possible explanations for why Californians passed Proposition 8 despite the polls: (1) poll respondents did not respond honestly to pollsters; (2) some respondents who opposed same-sex marriage were initially reluctant to amend the constitution for this purpose; (3) the campaign over the amendment changed people’s opinions about same-sex marriage; and (4) poll respondents did not …

Similarly Situated, Giovanna Shay

Faculty Scholarship

In recent marriage equality litigation, opponents of same-sex marriage have argued that gay and straight couples are not “similarly situated” with respect to the purposes of the marriage statutes. Courts in Iowa,Connecticut, and California have rejected these arguments (although the California result was overturned by Proposition 8, which itself was invalidated by a district court as this Article was being written). The Iowa and California courts also questioned the structure of the “similarly situated” analysis asserted by the opponents. Marriage equality opponents in those states pressed a “threshold”-type similarly situated analysis.Under this scheme, if the two groups are not similarly …

Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain

Faculty Scholarship

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in …

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

A Need For Culture Change: Glbt Latinas/Os And Immigration, Berta E. Hernández-Truyol

UF Law Faculty Publications

In conversations about Latina/o immigration, such as the one that took place at LLEADS #2: The U.S. Immigration Crises: Enemies at Our Gates or Lady Liberty's Huddled Masses?, there is one issue that we tend not to address. There exists a Latina/o immigration cuento normativo (normative narrative) that obscures and denies an entire group of Latinas/os. This cuento normativo is not only insufficiently attentive to, but is downright erasing of GLBT Latinas/os. In this Article, I want to urge participation in a movement for cultural change within the various and varied comunidades Latinas (Latina/o communities) to embrace a new, inclusive …

Dignifying Rights: A Comment On Jeremy Waldron’S Dignity, Rights, And Responsibilities, Katherine M. Franke

Faculty Scholarship

In Dignity, Rights, and Responsibilities1 Jeremy Waldron offers a characteristically thoughtful and elegant account of rights, or as he calls it, responsibility-rights. As Waldron rightfully acknowledges, rights understood as a form of responsibility are not meant to capture every species of rights, but to provide us with a new analytic resource for better understanding a particular subset of rights that curiously entail a form of responsibility on the part of the rights holder. The link between rights and responsibility, Waldron argues, is built upon a strong foundational commitment to human dignity. The most compelling contribution of Waldron's paper is his …

Public Sex, Same-Sex Marriage, And The Afterlife Of Homophobia, Katherine M. Franke

Faculty Scholarship

The summer of 2011 marked an important turning-point in the geography and politics of sex: public sex, previously a domain dominated by the specter of a hypersexualized gay man, became the province of the irresponsible, foolish, and self-destructive heterosexual man, such as Anthony Weiner. Meanwhile, homosexuals were busy domesticating their sexuality in the private domain of the family. Just as hetero-sex shamefully seeped out into the open, homo-sex disappeared from view into the dignified pickets of private kinship. In this essay I examine the panic that unfolded in connection with Representative Weiner’s tweets as a kind of afterlife of homophobia; …

The Curious Relationship Of Marriage And Freedom, Katherine M. Franke

Faculty Scholarship

This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are …

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

All Faculty Scholarship

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes the …

Clarion Call Or False Alarm: Why Proposed Exemptions To Equal Marriage Statutes Return Us To A Religious Understanding Of The Public Marketplace, Taylor Flynn

Faculty Scholarship

This Article discusses the problematic issues arising from proposed religious exemptions to equal marriage statutes. In the Author's view these exemptions would create the societal framework in which lesbians, bisexuals, and gay men can be refused service in virtually all aspects of life, whether fundamental or mundane—from healthcare to housing, from employment to flower-buying. This would all be accomplished with the express permission of the state. The Author believes that these proposals could permit widespread discrimination on a multitude of protected bases. The proposals appear to have been crafted to seize on cultural and religious anxiety and fears concerning same-sex …

Incrementalism, Civil Unions, And The Possibility Of Predicting Legal Recognition Of Same-Sex Marriage, Erez Aloni

All Faculty Publications

Scholars who have examined the legal recognition of same-sex partnerships in European countries have concluded that the path to the legalization of same-sex marriage follows an incremental process involving specific stages. They suggest that it is possible to predict, based on certain visible social and legal processes or assessable parameters, which U.S. states will be the next to recognize same-sex marriage. These scholars argue that such small cumulative legal changes at the state level constitute the best means of legalizing same-sex marriage in the United States, and that civil unions are a necessary step in this process. This article shows …