Law Commons^™

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

A Tale Of Two Families -- Red Families V. Blue Families: Legal Polarization And The Creation Of Culture By Naomi Cahn & June Carbone, Rachel Rebouché

UF Law Faculty Publications

In their thought-provoking book, Red Families v. Blue Families: Legal Polarization and the Creation of Culture, Naomi Cahn and June Carbone examine conflicting views on family formation in the "culture war." Mirroring the electoral maps of 2004 and 2008, the authors contend that regional differences between Republican and Democrat voters correspond to deeply held beliefs about family values. The "blue" family paradigm is essentially liberal: It stresses individual equality, tolerance of diverse lifestyles, and a role for government in helping people achieve educational and economic success. "Red" families are conservative. They value tradition, as expressed in religious beliefs or longstanding …

Asking The Man Question: Masculinities Analysis And Feminist Theory, Nancy E. Dowd

UF Law Faculty Publications

Masculinities scholarship is an essential piece of feminist analysis and of critical equality analysis. It requires that we "ask the man question" to further unravel inequalities. This symposium marks one of several movements toward examining and considering what masculinities scholarship can offer. In this introduction, I suggest a framework of masculinities analysis and describe its relationship to feminist theory. First, I consider why we should ask the "man question," and how we should ask it. Second, I explore how masculinities analysis might be useful in our examination of the "man question." Masculinities work can be used to understand more clearly …

Sex In And Out Of Intimacy, Laura A. Rosenbury, Jennifer E. Rothman

UF Law Faculty Publications

The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, most often marriage and procreation. Although Lawrence v. Texas altered some aspects of that vision, it reinscribed others by suggesting that sexual activity should be protected from state interference only …

The "F" Factor: Fineman As Method And Substance, Nancy E. Dowd

UF Law Faculty Publications

In this book review, Professor Dowd reviews Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, edited by Martha Albertson Fineman, Jack E. Johnson, and Adam P. Romero (2009). Professor Dowd exposes the particular impact of the “F” factor by first describing the contributions of this volume and then exploring the methodological and substantive aspects of the “F” factor.

Health And Reproductive Rights In The Protocol To The African Charter: Competing Influences And Unsettling Questions, Rachel Rebouché

UF Law Faculty Publications

In 2005, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the Protocol) came into force. Since that time, the Protocol has received scant attention in legal scholarship. Where the Protocol has been mentioned, by and large it has received praise as a major step forward for women's rights on the continent. Much of that praise is merited. The Protocol includes broad rights to non-discrimination, equality, and dignity, and it addresses a variety of areas such as labor and employment, marriage and the family, the legal system, the political process and …

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

The Gender Bend: Culture, Sex, And Sexuality – A Latcritical Human Rights Map Of Latina/O Border Crossings, Berta E. Hernández-Truyol

UF Law Faculty Publications

In the course of studying and theorizing about Latinas/os and their location in law and culture, critical theory has been simultaneously liberating and restraining, confining, and coercive. Critical theorists have made substantial inroads in recognizing the intersectionality, multidimensionality, multiplicity, and interconnectivities of the intersections of race and sex. These paradigms are central to an analysis of the Latina/o condition within the Estados Unidos (United States). However, much work remains to be done in other areas - such as culture, language, sexuality, and class - that are key to Latinas'/os' self-determination and full citizenship.

Cognizant of, and notwithstanding such limitations, this …

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

UF Law Faculty Publications

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

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

UF Law Faculty Publications

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 …

Unbending Gender: Why Family And Work Conflict And What To Do About It (Panel Two: Who's Minding The Baby?), Nancy E. Dowd, Adrienne Davis, Marion Crain, Bonnie Dill, Catherine Ross, Joan Williams

UF Law Faculty Publications

A central characteristic of our current gender arrangements is that they pit ideal worker women against marginalized caregiver women in a series of patterned conflicts I call gender wars. One version of these are the mommy wars that we see often covered in the press between employed mothers and mothers at home. Employed mothers at times participate in the belittlement commonly felt by homemakers. Also mothers at home, I think, at times participate in the guilt-tripping that's often felt by mothers who are employed. These gender wars are a central but little understood characteristic of the gender system that grew …

Ignoring The Sexualization Of Race: Heteronormativity, Critical Race Theory And Anti-Racist Politics, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article, a third in a series of related works, explores the representation of sexual identity within Critical Race Theory and other forms of anti-racist discourse. I argue, after examining representative texts, that anti-racist discourse is often "heteronormative" -- or centered around heterosexual experiences. Most commonly, anti-racist heteronormativity occurs when scholars and activists in the field fail to analyze the homophobic dimensions of acts or conditions of racial inequality and when they dismiss, either implicitly or explicitly, the "morality" of gay and lesbian equality claims. This Article recommends that scholars in Critical Race Theory and related fields adopt a more …

Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Lenard Hutchinson

UF Law Faculty Publications

No abstract provided.

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

UF Law Faculty Publications

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.