Law Commons^™

Background Primer For Discussion On Diversity Within The Legal Profession, James M. Donovan

James M. Donovan

Despite its easy use in ordinary conversation, the details of what is meant when a speaker raises questions relating to “diversity” can be more complicated that they at first appear. The materials included here seek to map the more predominant landmarks on that intellectual landscape.

Broun Is Mere Opportunist, James M. Donovan

James M. Donovan

Only Congressman Paul Broun could compress so many misleading statements and factual errors into such a brief space, beginning with his appeal to the Founding Fathers.

Online version available at http://www.onlineathens.com/stories/051509/let_439920953.shtml

Gay Marriage: The Issue, James M. Donovan

James M. Donovan

Comment in response to Bob Ostertag, "Why Gay Marriage Is the Wrong Issue," Flagpole, January 14, 2009.

Slightly different version available online at http://flagpole.com/Weekly/Comment/GayMarriageTheIssue.11Feb09

Corporate Domestic Partner Benefits, James M. Donovan

James M. Donovan

Despite the common use of the term domestic partner, it remains unclear what that term means either in identifying a specific individual or in its relationship to the status of marriage. Is it a temporary substitute based on equity, or a challenger looking toward social reform? Because these positions are mutually exclusive, domestic partner benefits activists must clarify what it is they hope to achieve.

The justification for withholding equitable compensation tends to fall back on the federal DOMA and ERISA laws, which unquestionably complicate the benefits terrain. But experts agree that while these federal laws may serve as a …

Delimiting The Culture Defense, James M. Donovan, John Stuart Garth

James M. Donovan

This essay builds upon the arguments of Alison Dundes Renteln in her influential book, THE CULTURAL DEFENSE 2004), in which she argues persuasively for a uniformly recognized culture defense in certain litigations. Critiquing some of her details, we recast her three-prong culture defense test to more effectively balance the competing interests of minority culture members to have their ways of life taken seriously by the courts, and of members of the dominant tradition who wish to preserve the rule of law with its necessary perception as treating all parties equally. The offered formulation now includes the following five elements:

1. …

Same-Sex Union Announcements: Precis On A Not So Picayune Matter, James M. Donovan

James M. Donovan

Although some newspapers have voluntarily begun to publish same-sex union announcements, others will continue in their traditional exclusionary practices. Some of those papers can anticipate being accused in court of unlawful discrimination where the law allows that cause of action. Reflexively, those newspapers will in turn erect a defensive shield from such charges by appealing, at least in part, to the First Amendment.

This comment examines the viability of that defense. The set-piece for the discussion are the details of a complaint, described in Part I, lodged against the Times-Picayune by a lesbian couple that was denied access to its …

Same-Sex Union Announcements: Whether Newspapers Must Publish Them, And Why We Should Care, James M. Donovan

James M. Donovan

The recent decision by the New York Times to publish same-sex union announcements brought to national attention the struggle of gay men and lesbians to gain access to this contested space. To date only about ten percent of newspapers allow same-sex couples to publish announcements on terms equal to heterosexual couples. Although some couples have sued to have their announcements published, these claims have been rejected as interfering with the newspaper's First Amendment protections. This article considers whether the First Amendment's Free Press and Free Speech clauses in fact allow newspapers to discriminate in this way.

The article begins with …

Baby Steps Or One Fell Swoop?: The Incremental Extension Of Rights Is Not A Defensible Strategy, James M. Donovan

James M. Donovan

The problem of incrementalism emerges from the common practice of limiting certain rights only to groups on certified lists. Section I reviews this problem of the list, and how the failure of lists to include gay men and lesbians profoundly impacts their daily lives. Possible strategic responses to this problem (such as doing nothing, interpreting the current list to include us, eliminating the list altogether, or expanding the list to include us explicitly) are considered in Section II, concluding by focusing on a special kind of gradualism, list incrementalism. List incrementalism occurs when a right is extended to new groups …

A Philosophical Ground For Gays' Rights: "We Must Learn What Is True In Order To Do What Is Right", James M. Donovan

James M. Donovan

A major platform of gays' rights seems to be that gays are entitled to social and political rights because, in fact, they are not different from the heterosexual majority when one looks past the definitional criterion of sleeping with the same sex. Any other differences, they claim, are "myths" and do not exist. From this perspective, without investigating bedroom behavior, one could never tell who is gay and who is not: Gays are just like "regular" people, the line goes, so they should be treated like them. "The best hope for acceptance," writes one Ann Landers reader, "is to show …