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6th Annual Stonewall Lecture 2-2-2023, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Hegemonic Marriage: The Collision Of 'Transformative' Same-Sex Marriage With Reactionary Tax Law, Anthony C. Infanti

Articles

Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. Others, in contrast, saw marriage as a civil rights issue and lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better.

This Article looks back …

Stretching The First Amendment: Religious Freedom And Its Constitutional Limits Within The Adoption Sector, Tracy Smith

Pepperdine Law Review

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

"In Sickness And In Health, Until Death Do Us Part": An Examination Of Fmla Rights For Same-Sex Spouses And A Case Note On Obergefell V. Hodges, Jasmine Foo

Journal of the National Association of Administrative Law Judiciary

This note discusses the history of the lesbian, gay, bisexual, and transgender (LGBT) struggle for equal rights alongside the Supreme Court's recent ruling in Obergefell v. Hodges and uses this to examine the potential effect on the rights granted to same-sex spouses by the Family Medical Leave Act (FMLA). Part II records the jurisprudence that has slowly evolved over the past forty to fifty years to make the present a more hospitable era for same-sex marriage to take root today. Part III gives a general overview of the FMLA's history and current form. Part IV reviews the facts prompting the …

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention [Batterer Intervention Program (Bip) Standards Data, As Of 2015], Carolyn B. Ramsey

Research Data

These 19 comparative data tables relating to state and local certification standards for batterer intervention programs (BIPs), as of 2015, are electronic Appendices B-T to Carolyn B. Ramsey, The Stereotyped Offender: Domestic Violence and the Failure of Intervention, 120 Penn. St. L. Rev. 337 (2015), available at http://scholar.law.colorado.edu/articles/56/. Appendix A is not reproduced here because it simply contains citations to the state and local standards, but it is published with the journal article.

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

Articles

These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti

Articles

This short essay was spurred by the numerous celebrations of the Supreme Court’s recent decision in Obergefell v. Hodges legalizing same-sex marriage in all fifty states. Though the essay acknowledges the importance of both Obergefell and the Supreme Court’s earlier decision in United States v. Windsor, it highlights the significant perils that these decisions entail for the LGBT community. In the essay, I use tax as a lens for describing some of the lesser-known perils associated with these decisions in the hopes of making those perils more concrete and easily understood by a wide audience of (tax and nontax) …

How Law Shapes Experiences Of Parenthood For Same-Sex Couples, Nicholas K. Park, Emily Kazyak, Kathleen S. Slauson-Blevins

Department of Sociology: Faculty Publications

Gay, lesbian, and bisexual (GLB) parents are increasingly common and visible, but they face a number of social and legal barriers in the United States. Using legal consciousness as a theoretical framework, we draw on data from 51 interviews with GLB parents in California and Nebraska to explore how laws impact experiences of parenthood. Specifically, we address how the legal context influences three domains: the methods used to become parents, decisions about where to live, and experiences of family recognition. Law and perception of the law make some pathways to parenthood difficult or unattainable depending on state of residence. Parents …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Big (Gay) Love: Has The Irs Legalized Polygamy?, Anthony C. Infanti

Articles

Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which …

Lgbt Families, Tax Nothings, Anthony C. Infanti

Articles

The federal tax laws have never been friendly territory for LGBT families. Before the enactment of the federal Defense of Marriage Act (DOMA), the federal tax laws turned a blind eye to the existence of LGBT families by tacitly embracing state law discrimination against same-sex couples. When it enacted DOMA in 1996, Congress ensured that it would be able to continue to turn a blind eye to LGBT families even if one or more states were to legally recognize families headed by same-sex couples. In a real sense, LGBT families have been, and continue to be, tax outlaws.

This overt …

Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw

Scott Titshaw

When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of LGBT families. Yet Windsor was not an immigration case, and the Court’s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized “civil union” or “registered partnership”? Will children born to spouses or registered partners in same-sex couples be recognized as “born in wedlock” for immigration …

The Moonscape Of Tax Equality: Windsor And Behyond, Anthony C. Infanti

Articles

This essay takes a critical look at the tax fallout from the U.S. Supreme Court’s decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples.

In this essay, I first describe the path that led to the decision …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Moving Forward Together: The Lgbt Community And The Family Mediation Field , Mark J. Hanson

Pepperdine Dispute Resolution Law Journal

This is a time of great change for the Lesbian, Gay, Bisexual and Transgender ("LGBT") community. Members of the LGBT community have gained increased awareness and rights. The United States Supreme Court found state sodomy laws that ban same-sex sexual activity unconstitutional. Thirty-three states have enacted hate crime legislation that protects members of the LGBT community. Recently from the streets of San Francisco, to New Platz, New York and to Sandoval County, New Mexico, LGBT couples have received marriage licenses despite being prohibited by state law. Other states, such as Connecticut, Massachusetts and Vermont have enacted legislation giving LGBT couples …

Collegiality And Individual Dignity, Tobias Barrington Wolff

All Faculty Scholarship

This Essay identifies and describes the tension between the norms of collegiality and basic principles of individual dignity that LGBT scholars and lawyers encounter when confronted with the dehumanizing arguments that are regularly advanced by opponents of equal treatment under law for lesbian, gay, bisexual and transgender people. It is a transcript of remarks delivered at a March 2012 symposium on the Defense of Marriage Act at Fordham Law School, with minimal edits for publication.

Displaced Mothers, Absent And Unnatural Fathers: Lgbt Transracial Adoption, Kim H. Pearson

Michigan Journal of Gender & Law

While some might believe that Black versus gay discourse only surfaces in highly politicized settings like the military and marriage, it holds sway in the area of LGBT transracial adoption. LGBT transracial adoptions are a relatively small percentage of all adoptions, which include private adoptions, LGBT second-parent adoptions, and step-parent adoptions, but they are an important site for interrogating the Black versus gay discourse because adoption and custody decisions often address parent-child transmission. When claims intersect, as they do in a case where a White LGBT foster parent and a Black maternal grandmother dispute the adoption of a Black child, …

A Modest Proposal: To Deport The Children Of Gay Citizens, & Etc: Immigration Law, The Defense Of Marriage Act And The Children Of Same-Sex Couples, Scott Titshaw

Scott Titshaw

The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. Unless judges and immigration officials are careful to limit it as Congress intended, DOMA might also have a tragic unintended effect on some parent-child relationships. The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “stepparent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. These relationships determine whether a person can …

Dismembering Families, Anthony C. Infanti

Book Chapters

In this paper, I explore how the deduction for extraordinary medical expenses, codified in I.R.C. section 213, furthers domination in American society. On its face, section 213 probably does not seem a likely candidate for being tagged as furthering domination. After all, this provision aims to alleviate extraordinary financial burdens on taxpayers who already suffer from significant medical problems -- and who, by definition, lack the help of insurance to relieve those burdens. But, as laudable as this goal might be, careful attention to the text and context of section 213 reveals that it does not apply to all taxpayers …

Ghosts In The Postmodern Family, Annette Appell

annette appell

As legal theory and doctrine respond to the range and complexity of biological and social connections that increasingly compose families, they evoke a bionormative nuclear family framework for lesbian and gay families, stepfamilies and families created with outsourced reproductive materials or labor. This Article questions this approach because it disregards the complex foundational roles of biological relationships in American jurisprudence and fails to appreciate the unique aspects of kinship in these postmodern families. Instead, this Article anchors the postmodern family law movement in the physical, social and economic conditions that affect the most disaffected among us: those who are socially, …

The Meaning Of Marriage: Immigration Rules And Their Implications For Same-Sex Spouses In A World Without Doma, Scott Titshaw

Scott Titshaw

An estimated 35,000 U.S. Citizens are living in our country with same-sex foreign partners, but with no right to stay here together on the basis of their relationship. Many are faced with a choice between their partners and the country they love. This is true, even if the couple is legally married in one of the growing number of states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” under all federal law as an exclusively heterosexual institution, now stands squarely in their way. Reform options that would help these couples to stay …

Sorry Ma'am, Your Baby Is An Alien: Outdated Immigration Rules And Assisted Reproductive Technology, Scott Titshaw

Scott Titshaw

The growing use of assisted reproductive technology (ART) and legal recognition of same-sex relationships are raising questions regarding the recognition of parent-child relationships. State and foreign family law have been wrestling with these issues for decades, but U.S. immigration law is lagging far behind. So far, guidance exists on only one ART related issue under the Immigration and Nationality Act (INA): whether a U.S. citizen transmits her citizenship to a child born abroad. Unfortunately, that guidance is contradictory. The U.S. Department of State (DOS) requires genetic kinship for citizenship transmission. The Ninth Circuit Court of Appeals focuses on the parents’ …

Taxing Civil Rights Gains, Anthony C. Infanti

Articles

In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian families.

Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many state constitutions. Where such constitutional challenges are unavailable or …

Foreword: Assisted Reproductive Technology And The Law, Mary P. Byrn

Faculty Scholarship

This foreword introduces Issue 2: Assisted Reproductive Technology and the Law of the 35th Volume of the William Mitchell Law Review. It begins by outlining the author's personal experience with ART, and contrasts her reasoning for using ART with the traditional need for ART. Finally, it lists some of the many legal questions yet to be conclusively answered.

Surveying The Legal Landscape For Pennsylvania Same-Sex Couples, Anthony C. Infanti

Articles

Recent advances in the battle over same-sex marriage in Connecticut, California, Iowa, Maine, New Hampshire, and Vermont led some commentators to describe this as a “watershed” moment. These legal and legislative wins - however tentative - created a sense of momentum in favor of lesbian and gay rights advocates in the battle over same-sex marriage. Yet, it would be a mistake to allow jubilation over these wins to obscure the larger perspective on this battle. We should not lose sight of the fact that, with the exception of Iowa, same-sex couples in each of these jurisdictions could already obtain legal …

Lgbt Elder Law: Toward Equity In Aging, Nancy J. Knauer

Nancy J. Knauer

At a time when LGBT individuals enjoy an unprecedented degree of social acceptance and legal protection, many LGBT elders face the daily challenges of aging isolated from family, detached from the larger LGBT community, and ignored by mainstream aging initiatives. The corrosive legacy of the pre-Stonewall views of homosexuality makes many LGBT elders reluctant to declare themselves and demand equal treatment from policy makers and health care providers. As a result, they are denied the basic dignity of being able to share their memories of a life well lived without fear of rejection and reprisal. The concerns of LGBT elders …

Same-Sex Marriage And Federalism, Nancy J. Knauer

Nancy J. Knauer

The increasing willingness of states to recognize same-sex relationships illustrates the central theme of this Symposium: federalism provides states the freedom to experiment with novel solutions to pressing social issues. The development of progressive policies seems to bear out Justice Brandeis' optimistic vision of federalism where "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." With respect to same-sex relationships, however, state level reform efforts have not been uniformly progressive. To the contrary, the vast majority of these efforts prohibit the …

Report Of The Working Group On The Role Of Sex And Sexuality, Working Group On The Role Of Sex And Sexuality

Nevada Law Journal

No abstract provided.