Law Commons^™

The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi

Yuvraj Joshi

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative began to change. Dignity veered …

Sexual Orientation Of Fatherhood, Dara Purvis

Dara Purvis

In this Article, I examine how same-sex fathers affect the perception of heterosexual caretaking fathers - and by extension, could affect the perception of heterosexual non-caretaking mothers. I conclude that gay stay-at-home fathers offer a provocative opportunity to broaden societal views of men and caregiving more generally, and argue that greater recognition of parents who counteract gender stereotypes - even where the recognition might arguably lessen women's rights in family law - ultimately helps women as well as children and nontraditional parents. Part I discusses fathers, particularly stay-at-home fathers, the practical problems fathers face combining work and caregiving responsibilities, and …

Evaluating Legal Activism: A Response To Rosenberg, Dara Purvis

Dara Purvis

Earlier this year, Gerald Rosenberg updated his canonical work The Hollow Hope to incorporate the battles over same-sex marriage as, in his opinion, further support for his theory that the backlash of legal activism can subvert the intended goals. This Article examines three of Rosenberg’s central claims and, by questioning their premises with further evidence from the history of the same-sex marriage movement, roils the waters of whether the litigational and political record of the same-sex marriage movement bolsters or weakens Rosenberg’s thesis. The Article first questions Rosenberg’s claim that activists seeking to advance same sex marriage erroneously chose the …

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Dara Purvis

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even …

Afterword – Straightness As Property: Back To The Future-Law And Status In The 21st Century, Symposium: Liberalism And Property Rights, Berta E. Hernández-Truyol, Shelbi D. Day

Berta E. Hernández-Truyol

As is evident from the other works in this Symposium, throughout history in both the United States and the greater Western World, status-based exclusion of individuals and groups from property rights has been central to the existence of political and social hierarchies. Specifically, exclusion based on status — whether it be nationality, culture, race, sex or sexuality — has plagued our history and has been integral in the formation and development of both constitutional and property law regimes. Consequently, both regimes are at best uneven in the grant and distribution of rights and benefits. A forward-looking examination of the link …

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

Odious Discrimination And The Religious Exemption Question, Laura S. Underkuffler

Laura S. Underkuffler

Recently, claims have been asserted that religious exemptions should be afforded to individuals who object to providing public and commercial services to gay and lesbian individuals, as otherwise mandated by law (e.g., municipal clerks who must grant same-sex marriage licenses, or commercial vendors who are asked to serve at same-sex weddings). This article argues that just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status. Discrimination on the basis of an individual's …

Same-Sex Marriage And Religious Liberty Clashes In The U.S., After Obergefell V. Hodges: (An American Constitutional Challenge), Patrick M. Talbot

Patrick M Talbot

This is a revision of an earlier article, to be published in a forthcoming book in Indonesia on religious liberty, in a comparative study of events in America. It examines two issues impacting religious liberty against a "right" to same-sex marriage, after SCOTUS' decision in Obergefell v. Hodges. Issue I is about the now lost right of States to adhere to a traditional definition of marriage, through a democratic process. Issue II is about the impact this case will have on religious vendors seeking to abstain from involvement in same-sex wedding and similar ceremonies (gay celebrations) on grounds of sincere …

Conjuring "Equal Dignity": Mapping The Constitutional Dialogue To And From Same-Sex Marriage, Julie Nice

Julie A. Nice

Religious Exemptions, Marriage Equality, And The Establishment Of Religion, Nancy J. Knauer

Nancy J. Knauer

The advent of nationwide marriage equality has sparked a robust debate over the extent of religious liberties and the limits of civil rights protections. As public opinion regarding LGBT individuals and the families they form has evolved, religious beliefs that once served as the basis for law and policy have been increasing marginalized. Various efforts have been made to protect religious objectors who continue to believe that marriage is only between one man and one woman. For example, all of the states that had enacted marriage equality legislation included exceptions for clergy and religious organizations to ensure that they would …