Law Commons^™

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 …

Interpreting Liberty And Equality Through The Lens Of Marriage, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but …

The Power Of Dignity, Elizabeth B. Cooper

Fordham Law Review

This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …

Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau

Fordham Law Review

By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …

Hail Marriage And Farewell, Ethan J. Leib

Fordham Law Review

My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …

Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell

Fordham Law Review

Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.

Perspectives On Marriage Equality And The Supreme Court, The Editors

Fordham Law Review

On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, one of the most significant civil rights decisions in recent years. For many of our generation, the Court’s conclusion that same-sex couples enjoy the constitutional right to marry simply confirmed deeply held beliefs about the importance of marriage equality and inclusion for all. We recognize, however, that for American society more broadly, the decision has evoked strong feelings on both sides of the marriage equality debate. For some, Obergefell delivered a unique gift that was unimaginable even a few decades ago: the ability of same-sex couples to …

With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner

Articles

This article draws attention to a cultural shift in the formation of families that has been and is taking place in this country and in the developed world. Part I uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71 %, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions. Because of the …

Baker V. Nelson: Flotsam In The Tidal Wave Of Windsor's Wake, David B. Cruz

Indiana Journal of Law and Social Equality

Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the U.S. Supreme Court’s 2013 ruling in United States v. Windsor to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court as it returns to the issue. Part II then at some …

Same-Sex Couples - Comparative Insights On Marriage And Cohabitation, Macarena Sáez

Books

This book shows six different realities of same-sex families. They range from full recognition of same-sex marriage to full invisibility of gay and lesbian individuals and their families. The broad spectrum of experiences presented in this book share some commonalities: in all of them legal scholars and civil society are moving legal boundaries or thinking of spaces within rigid legal systems for same-sex families to function. In all of them there have been legal claims to recognize the existence of same-sex families. The difference between them lies in the response of courts. Regardless of the type of legal system, when …

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Same-Sex Marriage And Due Process Traditionalism, Ronald Turner

University of Richmond Law Review

No abstract provided.

"I Now Pronounce You Husband And Wives": The Case For Polygamous Marriage After United States V. Windsor And Burwell V. Hobby Lobby Stores, Peter N. Swisher

Law Faculty Publications

The purpose of this article is to question the continuing validity of Reynolds in light of subsequent United States Supreme Court deci- sions, including-most recently-UnitedStates v. Windsor and Burwell v. Hobby Lobby Stores, Inc. Based upon these subsequent Supreme Court decisions, and the Religious Freedom Restoration Act of 1993, proponents of polygamous marriage now have a very strong case for validating polygamous marriages on cultural, religious, and constitutional grounds.

Obergefell'S Conservatism: Reifying Familial Fronts, Clare Huntington

Fordham Law Review

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic.

Race, Dignity, And The Right To Marry, Robin A. Lenhardt

Fordham Law Review

Justice Kennedy’s majority opinion in Obergefell v. Hodges asserts legal marriage’s capacity to afford same-sex couples a measure of “equal dignity” and belonging too long denied. In this Essay, I ask whether there is any reason to believe that marriage could do the same for African Americans. Could broader entrance into marriage, as some conservatives suggest, provide Blacks—gay and straight—a measure of belonging that has been frustratingly elusive, even as the nation prepares to celebrate the one hundred and fiftieth anniversary of the Thirteenth Amendment’s ratification?

The Right To No: The Crime Of Marital Rape, Women's Human Rights, And International Law, Melanie Randall, Vasanthi Venkatesh

Brooklyn Journal of International Law

More than half of the world’s countries do not explicitly criminalize sexual assault in marriage. While sexual assault in general is criminalized in these countries, sexual assault perpetrated by a spouse is entirely legal. The human rights violations inhere in acts of violence against women are now well recognized. Yet somehow marital rape is a particular form of gendered violence that has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

This silence in the law creates legal impunity for men who sexually assault or rape the women who are their wives …

Identity And Form, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars …

The Illusion Of Equality: The Failure Of The Community Property Reform To Achieve Management Equality, Elizabeth Carter

Elizabeth R. Carter