Law Commons^™

Silencing And Surveillance: The Struggle Of Same-Sex Desire In The Shadow Of The 20th-Century Police State, Ethan Dunn

Honors Theses

This paper investigates the intersection of social perceptions of vice and gender norms in shaping the policing of sexual orientation and sexuality during the turn of the twentieth century. Employing a legal analysis rooted in the law and society movement and critical legal studies, this study examines how social anxieties surrounding vice and vice crimes prompted swift legislative measures at both federal and state levels, resulting in statutes characterized by broad language that granted extensive discretion to law enforcement officials and judges. The emergence of morals and vice police squads further intensified the targeting of individuals who deviated from prevailing …

Topology Of The Closet, Michael Boucai

Journal Articles

Despite the closet’s centrality to queer culture and theory, the metaphor’s various meanings have yet to be disaggregated and defined. Following Eve Kosofsky Sedgwick’s identification of the closet with a “crisis of homo/heterosexual definition, indicatively male, dating from the end of the nineteenth century,” the present article uses an array of late-Victorian sources—especially The Memoirs of John Addington Symonds and Teleny, a pornographic novel sometimes attributed to Oscar Wilde—to describe and distinguish: (1) so-called latent homosexuality (“the unconscious closet”); (2) deliberate strategies of suppression, abstention, and reformation (“the conscious closet”); (3) clandestine pursuits of gay sex and sociability (“the double …

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Susan Ayres

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Western Universalism And African Homosexualties, Nicholas Kahn-Fogel

Faculty Scholarship

This article draws on original historical research, queer theory, communitarian philosophy, and an array of anthropological sources to suggest that efforts by Western liberals to protect practitioners of same-sex intimate conduct in Africa may be relatively unsuccessful and could further endanger the intended beneficiaries of advocacy.

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 …

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit

Nancy Levit

One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights …

A Marriage Skeptic Responds To The Pro-Marriage Proposals To Abolish Civil Marriage, Nancy J. Knauer

Nancy J. Knauer

This essay responds to the pro-marriage proposals to abolish civil marriage presented by Professors Crane and Zelinsky. As a marriage skeptic, I do not share their unwavering support of marriage, but there are numerous points of agreement. I agree with Professor Zelinsky that a vision of a world without civil marriage is an important metric against which to evaluate public policy proposals. In addition, I find quite compelling the notion that a private deregulated marriage regime would promote a more mindful partnership where expectations were express, responsibilities were clear, and the terms were tailor-made for the particular couple. Finally, I …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

September 11 Relief Efforts And Surviving Same-Sex Partners: Reflections On Relationships In The Absence Of Legal Recognition, Nancy J. Knauer

Nancy J. Knauer

The criteria established by federal, state, and private relief efforts to assist the families of the victims of the September 11 attacks present a unique opportunity to examine the status of same-sex relationships in the United States. In the absence of uniform relationship recognition, surviving same-sex partners continue to struggle with a loss that legally is not cognizable. The stories from the September 11 survivors illustrate that a surviving partner is a legal stranger, who often must reconfigure her relationship with her partner to fit within the various legal categories where relief or compensation might be forthcoming. These legal categories …

Dimensions Of Equality In Regulating Assisted Reproductive Technologies, Mary Crossley

Articles

Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that …

Sexually Expressive Materials For Gay Men: Sex Discrimination Or Subversive Potential?, Donn Short

Donn Short

This article reviews Christopher N. Kendall's book Gay Male Pornography: An Issue of Sex Discrimination. In particular, this article focuses on the analysis of the Little Sisters case and the harms-based test articulated in the Butler decision. Kendall's book explains his position that gay male pornography is a problem of sex discrimination, and the harm of gay pronography is not propertly understood under current theoretical models. Short challenges Kendall's assessment of gay male pornography.

Sodomy And Prostitution: Laws Protecting The “Fabric Of Society”, Nicole A. Hough

The University of New Hampshire Law Review

[Excerpt] “Throughout history many people have viewed sodomy and prostitution as moral evils, because sex has often been linked to sin and, therefore, to immorality and guilt. For example, in ancient Hebrew, a sodomite was known as a qadhesh, a male temple prostitute who was associated with heathen deities and impure forms of worship. The female version of qadhesh, qedheshah, is translated directly as prostitute. This archaic view of labeling prostitution and sodomy as impure has been challenged over time, and both topics are still a source of great controversy. […]

This note is a comparative analysis of sodomy and …

Decriminalizing Sexual Conduct: The Supreme Court Ruling In Lawrence V. Texas., Jessica A. Gonzalez

St. Mary's Law Journal

Throughout America, homosexual men and women have fought for the protection of their constitutional rights; gay men, lesbian women, and bisexual persons have petitioned the government for marital rights, adoption privileges, and recognition in the armed forces. While American culture has changed to include homosexuals in its daily life, the judicial branch has been hesitant in accepting gay culture within the legal system. While American courts remained reluctant to invalidate anti-sodomy statutes, Lawrence v. Texas pushed homosexual issues to the forefront. Gay activists demanded that the courts recognize homosexual individuals as persons deserving of constitutional protections. In doing so, Lawrence …

Gay And Lesbian Applicants To The Bar: Even Lord Devlin Could Not Defend Exclusion, Joel J. Finer

Law Faculty Articles and Essays

In 1957, the publication of a report to Parliament, the Wolfenden Report, which recommended the repeal of laws criminalizing private homosexual conduct between consenting adults, sparked an intensely debated controversy in political philosophy and jurisprudence. The issue: is society justified in criminalizing behavior which, although causing no secular harm, transgresses widely held moral values? The principal proponent of morals legislation was Lord Patrick Devlin, who responded to the Wolfenden recommendation with a paper disputing the report's premises--that criminal law had no proper business punishing private immorality.Oxford Professor of Jurisprudence H.L.A. Hart, a philosophical successor to the libertarianism of John Stuart …

Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer

Nancy J. Knauer

In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice. Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic. Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status. This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development. However, the ex-gay media blitz of 2000 represents only the latest …

Brief Against Homophobia At The Bar: To Law School Dean-Mid 1960s, Joel J. Finer

Law Faculty Articles and Essays

In the mid-1960s, the author addressed the following "brief" to the Dean of a major law school on behalf of a law student, successfully urging that the Dean not report the student's homosexual activities to the state Bar committee which screened applicants for "good moral character." My own view, to be presently elaborated, is that to deprive a law student of the well-earned fruits of his labor on the basis of psychiatric findings that he might, at some future time commit a homosexual act that might become public and might merely embarrass a client, employer or associate, would manifest gross …

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Domestic Partnership And Same-Sex Relationships: A Marketplace Innovation And A Less Than Perfect Institutional Choice, Nancy J. Knauer

Nancy J. Knauer

The struggle for the recognition and protection of same-sex relationships is at the forefront of the contemporary gay and lesbian civil rights agenda. Whereas the push for same-sex marriage and parenting rights has met with mixed results in the courts and the legislatures, an impressive array of organizations, including Fortune 500 companies, colleges, nonprofit corporations, and municipalities, now extend benefits to the same-sex partners of their employees. This level of success raises a provocative question regarding the potential role of institutional employers in the larger on the agenda for progressive social change. Domestic partnership benefits are a creature of the …

Bowers V. Hardwick, Romer V. Evans, And The Meaning Of Anti-Discrimination Legislation, Marc A. Fajer

Articles

No abstract provided.

Some Thoughts On Harassment: A Gay Male Perspective, Marc A. Fajer

Articles

No abstract provided.

Sex, Reason, And A Taste For The Absurd, Robin West

Georgetown Law Faculty Publications and Other Works

Like much of Richard Posner's best work, Sex and Reason does many things, and for that reason will no doubt attract a large and diverse readership. This heavily footnoted, exhaustively researched, and imminently accessible book is a welcome introduction to the interdisciplinary study of sex. For the lay reader it presents an arresting set of speculations about human sexuality, drawn from the author's evident familiarity with a sizeable library of studies representing at least half a dozen scientific and social scientific disciplines, assembled in a readable and lively way. Of more interest, perhaps, to academicians and social scientists familiar with …

Legal Images Of Battered Women: Redefining The Issue Of Separation, Martha R. Mahoney

Articles

No abstract provided.

Legal, Medical And Psychiatric Considerations In The Control Of Prostitution, B. J. George Jr.

Michigan Law Review

In common with other nations of the world the United States today as in the past is faced with the problem of controlling prostitution, particularly in urban areas. At one time or another states and cities in the United States have experimented with the classic methods of controlling prostitution: reglementation, segregation and repression. Reglementation of individual houses or prostitutes has never been carried out on a statewide basis in any state in the United States, though one can find instances in certain large cities in the nineteenth and early twentieth centuries in which city ordinances or de facto police regulations …