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There's Nothing Rational About It: Heightened Scrutiny For Sexual Orientation Is Long Overdue, Daniel J. Galvin Jr. Apr 2019

There's Nothing Rational About It: Heightened Scrutiny For Sexual Orientation Is Long Overdue, Daniel J. Galvin Jr.

William & Mary Journal of Race, Gender, and Social Justice

In this Article, I argue that sexual orientation meets the burden established by Supreme Court jurisprudence for suspect classification and, therefore, should receive heightened scrutiny under Fourteenth Amendment equal protection analysis. After decades of using the fundamental rights analysis to aid lesbian, gay, and bisexual individuals in their pursuit of equality, addressing the fundamental right to marry and the fundamental right to privacy, the Supreme Court must address the elephant in the courtroom: that sexual orientation meets all of the factors set by the Court in equal protection cases for suspect classification.

Gays, lesbians, and bisexual individuals (LGBs) meet the ...


Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs Mar 2019

Unequal Enforcement Of The Law: Targeting Aggressors For Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

It is a central tenet of the laws of war that they apply equally to all parties to a conflict. For this reason, a party that illegally launches a war benefits from all the same rights as a party that must defend against the illegal aggression. Countless philosophers have shown that this so-called equal application doctrine is morally indefensible and that defenders should have more rights and fewer responsibilities than aggressors. The equal application doctrine retains the support of legal scholars, however, because they reasonably fear that applying different rules to different warring parties will substantially reduce overall compliance with ...


The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane Oct 2018

The New Jim Crow’S Equal Protection Potential, Katherine Macfarlane

William & Mary Bill of Rights Journal

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of ...


Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta May 2018

Highway Robbery: Due Process, Equal Protection, And Punishing Poverty With Driver’S License Suspensions, Thomas Capretta

William & Mary Bill of Rights Journal

No abstract provided.


Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai May 2018

Embracing The Chinese Exclusion Case: An International Law Approach To Racial Exclusions, Lauri Kai

William & Mary Law Review

No abstract provided.


Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick Aug 2017

Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick

Faculty Publications

Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined ...


Rights Dynamism, Timothy Zick May 2017

Rights Dynamism, Timothy Zick

Faculty Publications

No abstract provided.


Has The Future Already Been Forgotten? A Post-2007 Transgender Legal History Told Through The Eyes Of The Late, (Rarely) Great Employment Non-Discrimination Act, Katrina C. Rose Apr 2017

Has The Future Already Been Forgotten? A Post-2007 Transgender Legal History Told Through The Eyes Of The Late, (Rarely) Great Employment Non-Discrimination Act, Katrina C. Rose

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Same-Sex Parents And Their Children: Brazilian Case Law And Insights From Psychoanalysis, Helena Campos Refosco, Martha Maria Guida Fernandes Jan 2017

Same-Sex Parents And Their Children: Brazilian Case Law And Insights From Psychoanalysis, Helena Campos Refosco, Martha Maria Guida Fernandes

William & Mary Journal of Race, Gender, and Social Justice

This Article argues that maternal and paternal functions can be performed by same-sex parents from a psychological point of view. Consequently, the legal recognition of their relationship with their children meets the principle of human dignity pursuant to the Brazilian Federal Constitution.


The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick Dec 2016

The Dynamic Relationship Between Freedom Of Speech And Equality, Timothy Zick

Faculty Publications

This Article examines the dynamic intersection between freedom of speech and equal protection, with a particular focus on the race and LGBT equality movements. Unlike other works on expression and/or equality, the Article emphasizes the relational and bi-directional connections between freedom of speech and equal protection. Freedom of speech has played a critical role in terms of advancing constitutional equality. However, with regard to both race and LGBT equality, free speech rights also failed in important respects to facilitate equality claims and movements. Advocacy and agitation on behalf of equality rights have also left indelible positive and negative marks ...


The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro Oct 2016

The Lawfulness Of The Same-Sex Marriage Decisions: Charles Black On Obergefell, Toni M. Massaro

William & Mary Bill of Rights Journal

No abstract provided.


Orange Is The New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders, Shaina D. Massie Dec 2015

Orange Is The New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders, Shaina D. Massie

William & Mary Bill of Rights Journal

No abstract provided.


Procedurally Criminal: How Peremptory Challenges Create Unfair And Unrepresentative Single-Gender Juries, Chelsea V. King Dec 2014

Procedurally Criminal: How Peremptory Challenges Create Unfair And Unrepresentative Single-Gender Juries, Chelsea V. King

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Section 7: Same-Sex Marriage, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law Sep 2014

Section 7: Same-Sex Marriage, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Flunking The Class-Of-One/Failing Equal Protection, William D. Araiza Nov 2013

Flunking The Class-Of-One/Failing Equal Protection, William D. Araiza

William & Mary Law Review

This Article considers the equal protection “class-of-one” doctrine in light of recent developments, both at the Supreme Court and in the lower courts. After Part I explains the background and current state of the doctrine, Part II considers how that doctrine provides insights into such basic equal protection concepts as discriminatory intent and animus. It also critiques the Court’s analysis of the class-of-one, arguing that the Court has mishandled these concepts and in so doing caused doctrinal anomalies and lower court confusion. Part II offers an alternative approach to the class-of-one that corrects those problems while still addressing the ...


Crossing The Final Border: Securing Equal Gender Protection In Immigration Cases, Michelle L. Sudano Mar 2013

Crossing The Final Border: Securing Equal Gender Protection In Immigration Cases, Michelle L. Sudano

William & Mary Bill of Rights Journal

No abstract provided.


Lawrence's Stealth Constitutionalism And Same-Sex Marriage Litigation, Eric Berger Mar 2013

Lawrence's Stealth Constitutionalism And Same-Sex Marriage Litigation, Eric Berger

William & Mary Bill of Rights Journal

Constitutional law scholarship often focuses on two taxonomies: doctrinal categories and interpretive methodologies. Consequently, constitutional scholars sometimes neglect other important facets of constitutional decisionmaking, particularly extra-doctrinal stealth determinations that courts render frequently in constitutional opinions. The U.S. Supreme Court regularly confronts the questions underlying these determinations, but despite their centrality to constitutional decisionmaking, these issues often escape careful scrutiny.

Lawrence v. Texas exemplifies the phenomenon. Lawrence framed its central question at a broad level of generality; relied on hybrid reasoning, using equal-protection rationales to support a substantive due process holding; declined to identify a level of scrutiny; and invoked ...


Equality Between Adults And Children: Its Meaning, Implications, And Opposition, James G. Dwyer Jan 2013

Equality Between Adults And Children: Its Meaning, Implications, And Opposition, James G. Dwyer

Faculty Publications

Family law scholars have devoted much attention to equality among groups of adults and some attention to equality between groups of children. There has been little exploration, however, of the notion of equality between adults and children. In this Article, I first explain what it means at a basic, theoretical level to speak of such equality. I then identify some practical implications. Finally, I consider why there is great resistance to many practical implications of children's equality, even among those who would consider themselves advocates for child welfare.


Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove Dec 2012

Commentary On Marriage Grants: Article Iii & Same-Sex Marriage, Neal Devins, Tara Leigh Grove

Popular Media

No abstract provided.


Shaping California's Prisons: How The Alternative Custody Program, Designed To Remedy The State's Eighth Amendment Violations In The Prison System, Encroaches On Equal Protection, Emilie A. Whitehurst Nov 2012

Shaping California's Prisons: How The Alternative Custody Program, Designed To Remedy The State's Eighth Amendment Violations In The Prison System, Encroaches On Equal Protection, Emilie A. Whitehurst

William & Mary Bill of Rights Journal

No abstract provided.


The Equal Protection Implications Of Government's Hateful Speech, Helen Norton Nov 2012

The Equal Protection Implications Of Government's Hateful Speech, Helen Norton

William & Mary Law Review

Under what circumstances should we understand government’s racist or otherwise hateful speech to violate the Equal Protection Clause? Government speech that communicates hostility or animus on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties’ discriminatory behavior, deter its targets from certain important opportunities or activities, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms that such government expression potentially poses. The recent emergence of the Court’s government speech doctrine—which to date has emphasized the value of ...


Campus Citizenship And Associational Freedom: An Aristolelian Take On The Nondiscrimination Puzzle, Chapin Cimino Dec 2011

Campus Citizenship And Associational Freedom: An Aristolelian Take On The Nondiscrimination Puzzle, Chapin Cimino

William & Mary Bill of Rights Journal

Student expressive association on campus is a thorny thicket. Student affinity groups often choose to organize around a shared principle or characteristic of the groups’ members, which, by definition, makes those students different in some way from their peers. In order to preserve the group’s sense of uniqueness, these groups often then wish to control their own membership and voting policies. They feel, in essence, entitled to discriminate—a right arguably embodied by the First Amendment freedom of expressive association. When campus groups actually exercise this right, however, they run into university antidiscrimination policies, which can cost them official ...


China And Disability Rights, Michael Ashley Stein Oct 2010

China And Disability Rights, Michael Ashley Stein

Faculty Publications

No abstract provided.


The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton Oct 2010

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

William & Mary Law Review

No abstract provided.


Color Conscious: The Unconstitutionality Of Adoptive Parents' Expression Of Racial Preferences In The Adoption Process, Colin Schlueter Oct 2010

Color Conscious: The Unconstitutionality Of Adoptive Parents' Expression Of Racial Preferences In The Adoption Process, Colin Schlueter

William & Mary Bill of Rights Journal

No abstract provided.


Free Enterprise And The Rule Of Law: The Political Economy Of Executive Discretion (Efficiency Implications Of Regulatory Enforcement Strategies), Kevin S. Marshall Apr 2010

Free Enterprise And The Rule Of Law: The Political Economy Of Executive Discretion (Efficiency Implications Of Regulatory Enforcement Strategies), Kevin S. Marshall

William & Mary Business Law Review

Economic theory teaches that if all of the operational conditions of the perfectly competitive model hold, then certain efficiencies may be achieved to the favor of a wealth-seeking society, ceteris paribus (assuming all other things remain equal and/or the absence of all other disturbing influences). This Article observes the asymmetrical enforcement of relevant governing laws, regulations and rules eliminates any possibility that all other influences with respect to the performance values of the perfectly competitive model have been neutralized. Under such regulatory enforcement conditions, there can be no wealth-creation expectations.


The Vote From Beyond The Grave, Krysta R. Edwards Mar 2010

The Vote From Beyond The Grave, Krysta R. Edwards

William & Mary Law Review

No abstract provided.


Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black Mar 2010

Unlocking The Power Of State Constitutions With Equal Protection: The First Step Toward Education As A Federally Protected Right, Derek W. Black

William & Mary Law Review

This Article analyzes the intersection of state constitutional law right at stake and the responsibility for enforcing it. Thus, the scrutiny of this right under federal equal protection would be far different than it was just a few decades ago. Given the states’ weakened ability to enforce these rights, the future of education equity depends on federal intervention. with federal equal protection, revealing how federal equal protection, by relying on state constitutional education standards, can force states to further equalize and increase the resources available to struggling schools. It begins by exploring the extent of inequality and inadequacy in our ...


The Gender Gap: A Persistent Problem That Congress Has Yet To Address, Leeron Avnery Feb 2010

The Gender Gap: A Persistent Problem That Congress Has Yet To Address, Leeron Avnery

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong Jan 2010

Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong

Faculty Publications

No abstract provided.