Law Commons^™

Sexual Orientation, Equal Treatment And The Right To Manifest Religion: Lee V Mcarthur, Mel Cousins

Mel Cousins

The Responsibility Of Victory: Confronting The Systemic Subordination Of Lgbt Youth And Considering A Positive Role For The State, Julie Nice

Julie A. Nice

In light of the stunning cascade of recent victories ending some aspects of sexual orientation discrimination, this article calls for both the LGBT Rights Movement and the State to take responsibility for ending the systemic subordination of LGBT youth. This article’s first section synthesizes the alarming data demonstrating the disproportionate harms suffered by LGBT youth within the very institutions designed to protect them. Professor Nice categorizes these experiences as including rejection by families, hostility from faith communities, harshness from the child welfare and juvenile justice systems, harassment in schools, and destitution and violence on the streets. She further argues that …

Cracks In The Shield: The Necessity Of The Employment Non-Discrimination Act, James N. Bolotin

James N Bolotin

This paper argues that legislation protecting homosexuals from employment discrimination is necessary, despite hopeful arguments that the text of Title VII should or can already protect against discrimination based on sexual orientation. The paper discusses how the precedent of the federal courts has gone too far in the wrong direction to believe that they will fix this interpretation problem on their own. Furthermore, it posits that the passage of ENDA or similar legislation will successfully lessen the prevalence of this type of discrimination.

Part I considers the history of Title VII’s “because of sex” protection. This includes a short discussion …

Sexual Orientation: A Plea For Inclusion, Sharon E. Rush

Sharon E. Rush

White women and people of color have made significant scholarly contribution toward a better understanding of patriarchy and racial hegemony. Other outsider scholars, such as lesbians, gay men, and bisexuals, also have spoken out about how hegemony subordinates them to the dominant culture. That subordination creates a common pain of exclusion. All subordinated people should explore the sources of common pain that come from exclusion from the power and privilege generally enjoyed by members of the dominant culture.

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …

Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis

Cory A DeLellis

This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.

Policing Masculinity In Small-Town America, Luke A. Boso

Luke A. Boso

This Article explores masculinity in rural areas, and it addresses bullying and harassment of gay, bisexual, transgender, and otherwise gender non-conforming boys and men. While all men are under constant pressure to perform masculinity correctly and act like a "real" man, rural boys and men experience unique forms and degrees of gender policing and victimization. The confluence of geographic, social, religious, and economic characteristics common in many rural areas results in few available options for exhibiting acceptable masculinity; even benign and seemingly gender neutral traits quickly become proxies for effeminacy. Moreover, the cultural salience of rurality in the construction of …

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Urban Bias, Rural Sexual Minorities, And The Courts, Luke Boso

Luke A. Boso

Urban bias shapes social perceptions about sexual minorities. Predominant cultural narratives geographically situate sexual minorities in urban gay communities, dictate the contours of how to be a modern gay person, and urge sexual minorities to “come out” and assimilate into gay communities and culture. This Article contests the urban presumption commonly applied to all sexual minorities and focuses specifically on how it affects rural sexual minorities, who remain largely invisible in the public discourse about sexuality and equality.

This Article makes two important contributions. First, by exposing urban bias, it contributes to a broader discussion about how law and society …

Situation, Frames, And Stereotypes: Cognitive Barriers On The Road To Nondiscrimination, Marybeth Herald

Marybeth Herald

The psychological literature enhances our understanding of discrimination. This essay discusses three examples of how that literature can contribute to limiting destructive gender bias in the workplace, in private interactions, and in the courtroom. First, situational pressures have a powerful influence on our actions and must be taken into account in combating employment discrimination. A workplace designed for traditional male needs (limited parenting and home responsibilities) will continue to pressure females out of the workplace or childbearing despite formal equality rules. Second, the use of the term “disorder” as a frame for describing persons with an intersex condition may not …

Beyond The Binary: What Can Feminists Learn From Intersex And Transgender Jurisprudence?, Marybeth Herald

Marybeth Herald

This panel discussion focuses on recent developments in the intersex and transsexual communities. Recently, both movements have undergone profound changes and each has provided new and unique theoretical and practical perspectives that can potentially benefit other social justice groups. This dialogue describes these developments. It also emphasizes the importance of feminist, lesbian, gay, bisexual, transsexual and intersex activists becoming aware of the goals that they share and areas where their interests may diverge. As each of these movements develops their legal strategies, they need to be conscious of the potentially positive and negative ramifications that their approaches may have on …

Cumulative Jurisprudence And Hate Speech: Sexual Orientation And Analogies To Disability, Age And Obesity, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities.

Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association.

Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this article, that approach is challenged. …

The Unjust Exclusion Of Gay Sperm Donors: Litigation Strategies To End Discrimination In The Gene Pool, Luke A. Boso

Luke A. Boso

In May 2004, the Food and Drug Administration (FDA) announced a final rule to be published in the Federal Register that would establish eligibility criteria for persons seeking to donate sperm and other human cells and tissues. Concurrently, the FDA issued a draft guidance document that provides recommendations for complying with the requirements, listing men who have had sex with another man in the preceding 5 years (MSMs) as the number one risk factor. The FDA does not, however, make a distinction between MSMs who practice safe sex and those who have unprotected sex, nor does it identify men who …

Traditional Values Or New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson

Eric Alan Isaacson

President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …

Confronting Conventional Thinking: The Heuristics Problem In Feminist Legal Theory, Nancy Levit

Nancy Levit

The thesis of The Heuristics Problem is that the societal problems about which identity theorists are most concerned often spring from and are reinforced by thinking riddled with heuristic errors. This article first investigates the ways heuristic errors influence popular perceptions of feminist issues. Feminists and critical race theorists have explored the cognitive bias of stereotyping, but have not examined the ways probabilistic errors can have gendered consequences. Second, The Heuristics Problem traces some of the ways cognitive errors have influenced the development of laws relating to gender issues. It explores instances in judicial decisions in which courts commit heuristic …

Eyes Wide Shut: Erasing Women's Experience, From The Clinic To The Courtroom, Marybeth Herald, Ellen Waldman

Marybeth Herald

n his decade long exploration of female sexuality, Sigmund Freud professed to be on a mission to answer the elusive question, what do women want. Unfortunately, the 19th century psychiatrist was unable to separate that question from the one he ultimately answered, What do men want women to want? In some sense, Freud's inquiries provide an apt metaphor for the medical professions' stance toward female experience. When confronted with the difference presented by the female body as well as women's unique life experience, the medical field has responded with approaches that range from bemusement to hostility to intense indifference.

Although …

Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli

Carlo A. Pedrioli

When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges.

To establish the case for such a position, this article begins by presenting the plight of many sexual minority …

A New Image In The Looking Glass: Faculty Mentoring, Invitational Rhetoric, And The Second-Class Status Of Women In U.S. Academia, Carlo A. Pedrioli

Carlo A. Pedrioli

This article maintains that because Title VII alone does not have the ability to further the progress women have made in academic hiring, retention, and promotion, looking to remedies in addition to Title VII will be advantageous in helping to improve the status of women in U.S. academia. The article suggests as an additional remedy the implementation of faculty mentoring opportunities for junior female faculty members. A key way of initiating and furthering such mentoring opportunities is a type of discourse called invitational rhetoric, which is “an invitation to understanding as a means to create...relationship[s] rooted in equality, immanent value, …

Revisiting Gay Rights Coalition Of Georgetown Law Center V. Georgetown University A Decade Later: Free Exercise Challenges And The Nondiscrimination Laws Protecting Homosexuals, Matthew J. Parlow

Matthew Parlow

United States. V. Virginia New Gender Equal Protection Analysis With Ramifications For Pregnancy, Parenting And Title Vii.Pdf, Candace Kovacic-Fleischer

Candace Kovacic-Fleischer