Law Commons^™

Families Redefined: Kinship Groups That Deserve Benefits, Jane E. Cross, Charlene Smith, Nan Palmer

Jane E Cross

In Families Redefined: Kinship Groups that Deserve Benefits, the authors examine 1) the nature of kinship families, 2) the benefits accorded to married couples, 3) kinship families that lack protection and benefits, 4) the impact of denying kinship protection and benefits, 5) the use of contract law in kinship relationship and 6) using legislation to benefit kinship relationships.

This exploration of expanding family law protections to kinship groups addresses a series of interrelated topics. The first two sections of the article explore the characteristics and creation of kinship families in different societies. The third section addresses the legal benefits provided …

People As Crops, Evelyn L. Wilson

Evelyn L. Wilson

In 1807, Congress passed a law prohibiting the importation of slaves. The South began to feel the effect of labor shortages and prices escalated. To meet this demand, farmers in the upper south states, especially Virginia, began the systematic breeding of slaves for sale to the southwest. Through the use of statements from Virginia statesmen and from some of Virginia’s former slaves, my paper discusses slave breeding, first as a consequence of slavery, as an added benefit to the labor obtained from the slave.

My father was born in Virginia, as was his father, as was his father, as was …

Passions We Like...And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan

Yvonne Zylan

This article examines an oft noted, but largely unexplored, aspect of law’s functioning: its ability to constitute social reality. Specifically, I investigate the ways in which law helps define and delimit sexuality as a set of practices, experiences, and identifications. I do so by analyzing the discursive dimensions of anti-gay hate crime laws, demonstrating that such laws produce discrete discursive objects (doctrine and argument) within a specific set of institutional practices (the juridical field), and that these objects and practices in turn legitimate certain limiting narratives, instantiating them as social knowledge and as the ground of sexed and gendered performances. …

Clitoridectomy And The Economics Of Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the social phenomena of making use of what I call “ring evidence” to determine an individual’s marital status or sexual orientation. More specifically, I note the common practice of identifying people as married based on the presence of a ring on the ring finger of the left hand, as gay and in a committed relationship based on the presence of a ring on the ring finger of the right hand, and as single based on the absence of a ring.

Next, I identify two problems with making use of ring evidence to draw conclusions about …

Prenatal Drug Exposure: The Impetus For Overreaction By The Legal Community Or A Serious Problem Needing A Serious Solution, Janet W. Steverson

Janet W. Steverson

In 1994 this author argued for the adoption of a legislative scheme that addressed the problems of children exposed prenatally to drugs and alcohol. Under that scheme fetal abuse became a crime. However, the sentence for the crime was probation with drug treatment and no-pregnancy conditions, rather than incarceration. Although no state has enacted the proposed legislative scheme in total, a number of states have enacted bits and pieces of the scheme. No state has, however, made fetal abuse a crime.

In addition to the legislation that has been enacted since 1994, a number of other changes have occurred that …

Domestic Violence, The Rucker Decision Interpretation Of 42 U.S.C. 1437d (1) (6), Sexual Harassment In Public Housing, And Municipal Violations Of The Eighth Amendment: Making Women Homeless And Keeping Them Homeless, Shirley D. Howell

Shirley D. Howell

I spent this past summer researching explanations for the rapidly increasing phenomenon of female homelessness in America. While personal deficiencies such as alcoholism, mental illness and previous incarceration account for some female homelessness, I concluded that domestic violence, a flawed interpretation of 42 U.S.C. 1437d(1)(6), sexual harassment in public housing, and municipal violations of the Eighth Amendment are pervasive, but less frequently recognized, causes of female homelessness.

This article examines the great poverty that has befallen so many women in America and its causes. Section I discusses homelessness statistically. Section II examines domestic violence, flawed judicial interpretations, and sexual harassment …

The New Boys: Women With Disabilities And The Legal Profession, Carrie G. Basas

Carrie G Basas

This essay fuses the fields of law, feminist theory, and cultural studies to examine the status of women attorneys with disabilities. It is the first study of its kind in the United States. The author conducted an empirical, qualitative, and ethnographic study of women attorneys with disabilities in the United States. Thirty-eight attorneys participated and their narratives form the basis for critical analysis of disability animus and discrimination in the legal profession. The results show an alarming trend toward disabled women attorneys self-accommodating in the workplace, rather than enforcing their employment rights under the Americans with Disabilities Act. Relying on …

Recognizing Marriage, William J. Rich

William Rich

Recognizing Marriage Abstract Two adults living in the United States already have the right to form enduring relationships, to cohabit, and to identify themselves as married. The path towards full social and legal recognition of marriage for individuals of the same sex, however, must still be developed and will involve multiple steps requiring careful navigation. That path begins with broadening social acceptance, including extension of employment benefits, acceptance within progressive social and religious organizations, and support for children living with same sex couples. Legal acceptance will inevitably follow these changes in society, but in a majority of states, significant road …

It's Not Just Shopping, Urban Lofts, And The Lesbian Gay-By Boom: How Sexual Orientation Demographics Can Inform Family Courts, Todd Brower

todd brower

Courts today are deeply involved in matters involving lesbian, gay, bisexual and transgendered persons. Same-sex marriage, custody disputes, conflict with religious claims and other, more routine family law cases all bring sexual orientation minorities into the judicial system as parties, witnesses, lawyers, or jurors. Like sexuality, gender and gender roles have traditionally and significantly influenced these issues. Nevertheless, judges and the legal system often have little factual information about the lesbians and gay men who appear in their courtrooms, instead relying on stereotypes of gay persons. Such reliance fails to see the real people currently present in family courts and …

Social Cognition 'At Work:' Schema Theory And Lesbian And Gay Identity In Title Vii, Todd Brower

todd brower

Lesbians and gay men are frequent subjects for modern news, politics, and court opinions. From marriage for same-sex couples to Congressional hearings on the military’s “Don’t ask, don’t tell” regulation, decision-makers are setting policy based on their ideas about how gay people are and how they fit into society. But what are those perceptions and how do they interact with law? We ordinarily think of lesbians and gay men as predominantly childless, urban residents of cities like San Francisco, New York, Chicago, or Los Angeles or as inhabitants of the Northeastern or Pacific Coast states. However, data from the 2000 …

Crime And Moral Condemnation, John H. Bogart

John H Bogart

“Crime and Moral Condemnation” considers the relationship between enforcement of criminal law and moral condemnation of conduct by examining the enforcement of California’s feticide statute over a 50 year period in Sacramento. The article focuses in particular on the trial of Dr. T. Wah Hing, one of only three persons prosecuted during the period, and for whom a full trial transcript exists. The article suggests that abortion was not the object of widespread moral condemnation for reasons in addition to the paucity of prosecution, and that enforcement of the feticide statute was more the result of action by the California …

Gendercide And The Cultural Context Of Sex Trafficking In China, Susan W. Tiefenbrun, Susan W. Tiefenbrun

Susan W Tiefenbrun

Abstract:Gendercide and the Cultural Context of Sex Trafficking in China

By Susan Tiefenbrun and Christie Edwards

Women in China are bought and sold, murdered and made to disappear in order to comply with a strict government One Child Policy that coincides with the cultural tradition of male-child preference and discrimination against women. Everyday “500 female suicides” occur in China because of “violence against women and girls, discrimination [against women] in education and employment, the traditional preference for male children, the country’s birth limitation policies, and other societal factors…” As a result of a widespread and arguably systematic disappearance and death …

Some Penetrating Observations On The Fifth Anniversary Of Lawrence V. Texas: Privacy, Dominance, And Substantive Equality Theory, Shannon Gilreath

Shannon Gilreath

This article, “Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas: Privacy, Dominance, and Substantive Equality Theory,” asks the reader to look at the equality claims of minority groups at a new conceptual level. With the Lawrence decision as its critical paradigm, the essay proceeds through several observations on the failure of privacy/substantive due process grounded opinions to deliver rights to minorities. This discussion feeds an ultimate criticism of the equality analysis (or lack thereof) of many of the Court’s principal minority rights opinions. Particularly, I am critical of the longstanding notion that equal protection of the laws …

Bloodstains On A "Code Of Honor", Kenneth Lasson

Kenneth Lasson

Abstract In the real world of the Twenty-first Century, deep biases against women are prevalent in much of Muslim society. Although there is no explicit approval of honor killing in Islamic law (Sharia), its culture remains fundamentally patriarchal. As unfathomable as it is to Western minds, “honor killing” is a facet of traditional patriarchy, and its condonation can be traced largely to ancient tribal practices. Justifications for it can be found in the codes of Hammurabi and in the family law of the Roman Empire. Unfortunately, honor killings in the Twenty-first Century are not isolated incidents, nor can they be …

It Takes Three, Baby: The Lack Of Standard, Legal Definitions Of “Best Interest Of The Child” And The Right To Contract For Lesbian Potential Parents, Harvey L. Fiser, Paula K. Garrett

Harvey L. Fiser

In order to consider the plausibility of contracts regarding AI, this article will first review various options and legal ramifications for choices regarding AI and then focus on the effect of inconsistent application of the Uniform Parentage Act among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will then consider how the current standard of “best interest of the child” is being used in the absence of the UPA …

Scalia’S Ship Of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers To Help Ensure Their Inheritance From Incest Prosecution?, Terry L. Turnipseed

Terry L Turnipseed

SCALIA’S SHIP OF REVULSION HAS SAILED: WILL LAWRENCE PROTECT ADULTS WHO ADOPT LOVERS TO HELP ENSURE THEIR INHERITANCE FROM INCEST PROSECUTION? Terry L. Turnipseed Associate Professor of Law Syracuse University College of Law in•cest (ĭn'sěst') Sexual relations between family members or close relatives, including children related by adoption. There is a growing trend in this country – startling to many – of adopting one’s adult lover or spouse for various reasons, mostly inheritance-based. Should one who adopts his or her adult lover or spouse be prosecuted for incest? Think about it: the person is having sexual relations with his or …

Victims Without Legal Remedies: Why Kids Need Schools To Develop Comprehensive Anti-Bullying Policies, Robert S. Salem

Robert S Salem

Bullying, or peer harassment, as it is often referred to, continues to confound educators, legislators, lawyers, public health advocates and others who are committed to quality education in an atmosphere free from violence and intimidation. This article helps to explain why solutions to this problem remain elusive and offers some practical suggestions to improve conditions for all schoolchildren. The authors highlight the inadequacies of existing legal remedies for victims of peer harassment and focus on methods to prevent bullying. In addition to broad recommendations, the authors make specific recommendations to counter three prevalent fact patterns in peer harassment that are …

The National Masturbators Task Force, William B. Turner

William B Turner

This article explores why all legislative classifications on the basis of sexual orientation deserve close judicial scrutiny as invidious. Although we typically think of political powerlessness as the logical claim to make in seeking protection from the judiciary under the equal protection clause, this article explains why the active political participation of lesbians and gay men justifies judicial scrutiny of sexual orientation classifications. Full political participation is one of the Republic's highest goals, and lesbians and gay men demonstrate their capacity for full citizenship with their robust, effective political participation.

Chasing Queers: The Radicalism Of Conservative Legal Attacks On Lesbians And Gay Men, William B. Turner

William B Turner

This article explores efforts by conservative activists to use preposterous legal arguments as the basis for their on-going efforts to attack the legal rights of lesbians and gay men. Individually, these cases are easy to overlook, partly because most of them are state cases. Also, one does not usually think of the legal issues involved -- standing, intervention, full faith and credit -- as civil rights issues. This article draws attention to these cases in order to illuminate the similarities among them in terms of conservative attacks on lesbians and gay men.

Framing The Loving Analogy: Same-Sex Marriage, Gender Classifications And Heightened Scrutiny Under The Equal Protection Clause, Luiz Antonio Salazar Arroyo

Luiz A Arroyo

In the attached article, I argue that laws requiring marriage to be between a man and a woman make a facial gender classification triggering intermediate scrutiny. The constitutionality of laws banning same-sex marriage is one of the most important and hotly contested constitutional topics of the 21st century with the California Supreme Court releasing a decision on the subject this summer, and gay marriage cases pending in the High Courts of Connecticut and Iowa.

Ever since the Supreme Court decided Loving v. Virginia and declared that laws banning interracial marriage were unconstitutional, same-sex marriage advocates have claimed that laws restricting …

Beware The "One-Flesh Union": Conservatives Coalesce In Opposition To Same-Sex Marriage, William B. Turner

William B Turner

This article explores the notion of "one-flesh union" as the definitional basis for marriage according to Christian conservatives, and as an indication of the ways in which various types of Christian conservatives are overcoming their historical animosity to unite in opposition to same-sex marriage. The phrase, "one-flesh union," comes directly from the Biblical book of Genesis.

Chasing Queers: The Radicalism Of Conservative Legal Attacks On Lesbians And Gay Men, William B. Turner

William B Turner

This paper describes seven cases, mostly from state courts, that are unremarkable except that they reveal a pattern of attack by conservative activists, including law firms, on the rights of lesbians and gay men. In attacking the rights of lesbians and gay men, these conservatives also frequently assert special rights for themselves. Five of these cases involve standing or intervention, with conservatives asserting patently insupportable (except in one case) claims to standing for the purpose of depriving lesbians and gay men of benefits. Two involve full faith and credit. With one exception, these are all state cases that would otherwise …

The National Masturbators Task Force, William B. Turner

William B Turner

This paper describes political participation by lesbian, gay, bisexual, and transgender (LGBT) persons as an indication of why all legislative classifications involving sexual orientation and/or gender identity should receive careful attention from the courts. We usually think of the courts as using equal protection analysis to protect powerless minorities, but the Court in Cleburne v. Cleburne Living Center noted how most legislators showed great solicitude for the mentally retarded even as it struck down the municipal ordinance that imposed extra burdens on them. Indeed, the courts should reward active participation in the political process by minority groups by ensuring that …

King Solomon’S Solution To The Disposition Of Embryos: Recognizing A Property Interest And Using Equitable Division, Kansas R. Gooden

Kansas R Gooden

In your family law class, your professors have probably not lectured on the area of embryo disposition in divorce proceedings. Were you aware that courts across the country have ruled that the right not to procreate trumps the right to procreate in these situations? When divorce and IVF combine, it results in a complex legal battle. When a couple that used IVF divorces, who should get the remaining embryos? This article asserts that embryos should be considered property. The elements of ownership, possession, use, and exclusion, otherwise known as the bundle of sticks, are present. American law has taken an …

Transcending Gender: How The Absence Of A Consistent Legal Definition Of Gender Creates A Legal Limbo For Transgendered Individuals In The Context Of Marriage, Shawn C. Ellison

Shawn C Ellison

In cases in which the validity of a marriage is in dispute, will courts accept the new gender of a post-operative transsexual? Does a person’s sense of sexual identity have any legal bearing on his or her legal gender? Courts have split on these questions. Many courts seek guidance from a 1970 English case, Corbett v. Corbett, in which the court, relying on its own three-prong congruency standard, ruled against the transsexual. This paper examines Corbett and its legacy. The paper also addresses the issue of how such rulings affect people with physical intersex conditions.

Chaos, Law, And God: The Religious Meanings Of Homosexuality, Jay Michaelson

Jay Michaelson

What is the meaning of gay rights in contemporary religious-political discourse? Though some explain homosexuality's disproportionate prominence in terms of homophobia, "church and state," or traditional values versus progressive ones, this article suggests that the legal regulation of sexuality has a far deeper, and more specific, religious meaning: sexuality is a primary site in which religious law is engendered, where the lawfulness of religion meets the chaos beyond it. Arguments about gay rights, same-sex marriage, and related issues are not merely arguments informed by religious values; they are arguments about the nature of religion itself. The article begins by providing …

Differential Power In Intact Same-Sex Families Based On Legal And Cultural Understandings Of Parentage, Deirdre M. Bowen

Deirdre M Bowen

Do intact same-sex couples in which one member of the couple became pregnant with assisted reproduction or one member was the primary adopter, and the other member became a parent through second parent adoption understand the legal protections afforded them? In short the answer is no. An interesting family dynamic arises around who can claim the “true” status as parent based on their legal understandings of parenthood and their interactions with the dominant culture. While high profile custody cases on this issue have been decided in the United States with varying results, no research has examined the impact of uneven …

A Woman's Right To Be Spanked: Testing The Limits Of Tolerance Of S/M In The Socio-Legal Imaginary, Ummni Khan

Ummni Khan

What conditions must be in place for s/m sexuality to be tolerated in law and culture? In this article, I consider the film Secretary as a lens to explore the imaginative limits of our socio-legal culture regarding sadomasochism. In Part One, I compare Secretary to the film 9 ½ weeks. I deconstruct the narrative and aesthetic components of the two films that uphold their contrasting normative visions, arguing that Secretary did indeed chart new ground for the sadomasochist sexual subject. Yet, a close discursive analysis reveals that the narrative relied upon other hegemonies to make the s/m couple acceptable and …

Privacy, Authenticity, & Equality: The Moral And Legal Case For The Right To Homosexual Marriage, Jeffery L. Johnson

Jeffery L Johnson

Deeply and widely held political and moral values, as well as contemporary constitutional principles, demand that we look more thoroughly at our commitment to equality, liberty, and the pursuit of happiness. Such an examination, I argue, makes it close to self-evident that homosexual couples should have the right to full legal marriage.