Law Commons^™

The Obama Administration’S Policy Change Grants Asylum To Battered Women: Female Genital Mutilation Opens The Door For All Victims Of Domestic Violence, David Z. Ma

David Z Ma

ABSTRACT Throughout his Presidential campaign in 2008 and at his inauguration on January 20, 2009, President Obama repeatedly promised the American people one absolute: change. Change would come in many forms, and on April 13, 2009, change came to immigration law and to victims of domestic violence. President Obama’s administration filed a supplemental appeal brief outlining its policies for victims of domestic violence seeking asylum in the U.S. This policy completely reversed the Bush administration’s position on the issue. Yet, how did this change come about? In the preceding decade before President Obama took office, the Board of Immigration Appeals …

Hold The Phone: The Incongruity Of Prosecuting Sexting Teenagers Under The Prosecutorial Remedies And Other Tools To End Exploitation Of Children Act Of 2003, Julia Saladino

Julia Saladino

The sexting phenomenon has recently received attention nationwide. The growing and expanding capabilities of technology, along with the accessibility of camera phones have increased the likelihood that teenagers will engage in sexting and face potential federal and state child pornography charges.

All Who Live In Love: The Law & Theology Behind Same-Sex Marriage, Frank R. Flaspohler

Frank R Flaspohler

The issue of same-sex unions in the United States intertwines two fields of study that do not often intersect: constitutional law and religious theology. This essay seeks to present a summary of the constitutional law issues considered by several states courts and multiple legal scholars in presenting a modern approach to legal same-sex marriage. Additionally, this essay includes an overview of several Catholic Christian theologians who have presented grounds for a sexual theology that is more responsive to our modern understanding of sexual orientation. Together, these viewpoints show that same-sex unions can grow from our constitutional understanding of the rights …

The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger

Michael Gruenberger

The European Court of Justice [ECJ] held in Coleman v. Attrigde Law, Case C-303/06, E.C.R. I- [2008], that the prohibition of direct discrimination laid down in Art. 1 and 2 Directive 2000/78/EC is not limited only to people who are themselves disabled, but includes a less favorable treatment of an employee which is based on the disability of her child, whose care is provided primarily by that employee. The Coleman case is the first noticeable case in European anti-discrimination law with facts involving a triangular relationship: the person who presumably discriminates, the injured party and the carrier of the characteristics …

And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg

Matthew E Feinberg

The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.

The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …

Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith

Heron Greenesmith

In Schroer v. Billington, Judge Robertson of the DC District Court held that transgender employees are protected from discrimination by Title VII's prohibition on discrimination "because of . . . sex." While the decision was a ground breaking one, this article argues that it is not enough to truly protect transgender employees from discrimination. The article advocates that to provide true protection, Congress should pass the Employment Non-Discrimination Act, which provides explicit protection for employees on the basis of sexual orientation and gender identity.

Gender Disparity: Boys V. Girls In Special Education, Jennifer J. Haggerty

Jennifer J. Haggerty

Gender Disparity: Boys v. Girls in Special Education discusses why boys outnumber girls in special education classes in a ratio of 2:1. Gender disparity in special education is a severe problem which is increasing as there are relatively few male educators. Male educators are needed in the educational system to counteract female teachers’ tendencies to send male students to special education based upon behavioral characteristics, not upon educational disabilities.

Individuals with Disabilities Education Act (IDEA), formally known as the Education for All Handicapped Children Act of 1975 (EHA), poses several requirements of schools regarding students eligible for special education. One …

The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook

Deborah L Cook

This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …

Taking Lochner Out Of The Closet, Joseph F. Morrissey

Joseph F. Morrissey

This article, “Taking Lochner Out of the Closet,” is at the intersection of contract law, constitutional law, and sexual orientation law. The article offers a fresh and neutral analytical framework based on liberty of contract to advance gay rights. The framework might also be applied to other areas of concern where government regulation must be justified.

With respect to gay rights specifically, many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation. Advocates frequently argue that such …

A Civic Critique Of Democracy: Civic Organizing As The Generating Force Of A Civic Concept Of Law, Palma Joy Strand

palma joy strand

A Civic Critique of Democracy: Civic Organizing as the Generating Force of a Civic Concept of Law Palma Joy Strand ABSTRACT Judge Sonia Sotomayor’s controversial “wise Latina” comment embodies the view that law is socially constructed—that “we” make it and that it thus may vary according to who “we” are. Current theories of “popular constitutionalism,” “democratic constitutionalism,” and “demosprudence” take this several steps further and begin to explore the idea that the “we” that makes constitutional law is not just judges but society more broadly. These theories matter because they envision an active role for citizens in law creation, but …

Laboratories Of Constitutionality: How State High Courts Paved The Way For Federal Courts To Invalidate Prohibitions On Same-Sex Marriage, Tyler T. Rosenbaum

Tyler T Rosenbaum

This article looks at the opinions of the state high courts that have adjudicated the constitutionality under their state constitutions of prohibitions on same-sex marriage and, given the extent to which the state high courts deferred to Supreme Court case law in interpreting their own constitutions, concludes that a federal court would be more likely than not to find that such prohibitions violate the United States Constitution.

With respect to a claimed substantive due process right to same-sex marriage, the Supreme Court’s ruling in Lawrence v. Texas undermined much of the precedent that would have required a careful, tradition-bound analysis. …

Tribal Marriages, Same-Sex Unions, And An Interstate Recognition Conundrum, Mark Strasser

Mark Strasser

When justifying the recognition of Native American polygamous unions, courts tended to appeal the rationale that unions valid where celebrated would be valid everywhere. Yet, courts would not recognize polygamous unions that were celebrated on non-tribal lands, even if those marriages had been valid where celebrated. The focus of this essay is on why Native American polygamous unions tended to be recognized, and the implications that these recognition practices might have for the validity of same-sex marriages across state lines.

Life After Doma, Mark Strasser

Mark Strasser

During the 2008 presidential campaign, President Obama expressed his support for the repeal of one or both provisions of the Federal Defense of Marriage Act (DOMA) and, further, each of these provisions seems constitutionally vulnerable. Given the distinct possibility that DOMA’s days are numbered, the legal ramifications of its repeal or invalidation should be explored. This essay addresses what DOMA does, and what would happen were it no longer to exist. While the fears that allegedly prompted its passage in the first place would not be realized, the repeal or invalidation of one provision of DOMA will nonetheless have important …

Interstate Marriage Recognition And The Right To Travel, Mark Strasser

Mark Strasser

Historically, states were forced decide whether to recognize a marriage, valid where celebrated, that could not have been celebrated locally. As a general rule, non-incestuous, non-polygamous marriages that were valid in the domicile at the time of celebration were treated as valid everywhere, although courts split with respect to how to apply the rule to interracial marriages. Yet, these marriage recognition practices occurred in a context where it was believed that the United States Constitution imposed no limitations on the ability of states to refuse to recognize a marriage validly celebrated elsewhere. This article examines interstate marriage recognition practices, and …

Tax Justice And Same-Sex Domestic Partner Health Benefits: An Analysis Of The Tax Equity For Health Plan Beneficiaries Act, Michelle D. Layser

Michelle D Layser

This article analyzes the recently proposed Tax Equity for Health Plan Beneficiaries Act of 2009. Under current law the marriages and domestic partnerships of same-sex couples are not recognized for federal tax purposes under the Defense of Marriage Act. As a result, same-sex couples who receive employer-provided health benefits for their partners pay over $1,000 more in federal income tax than similarly situated opposite-sex couples. This unequal tax treatment also results in an additional burden of $57 million per year in extra payroll taxes for employers. The proposed Act would eliminate this discrimination.

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann Mcginley

Ann McGinley

This article analyzes the application of employment discrimination law to sexual minorities – lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws’ treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.While the article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts’ binary view of sex and gender, a view that identifies men …

In Whose Best Interest? Florida’S Statutory Ban On Homosexual Adoption And The Arguments Set Forth In Support Of An Absolute Ban, Represent The Perceived Best Interest Of A Conservative Morality And Not Those Of The Children., Michael England

Michael England

This article addresses Same-Sex Adoption. Specifically, Florida’s on going statutory prohibition and the rationale behind the State’s ongoing animus towards homosexuals. This article provides the reader with the historical context that led to the development and passage of the Florida statute and it details the three key cases that have challenged the constitutionality of the statute. The article addresses and refutes several of the ongoing concerns that have been repeatedly presented by the opponents of Same-Sex adoption. This article ultimately concludes that an absolute preclusion based solely upon orientation, without further investigation into the fitness of the individual, is discriminatory, …

In Whose Best Interest? Florida’S Statutory Ban On Homosexual Adoption And The Arguments Set Forth In Support Of An Absolute Ban, Represent The Perceived Best Interest Of A Conservative Morality And Not Those Of The Children., Michael England

Michael England

This article addresses Same-Sex Adoption. Specifically, Florida’s on going statutory prohibition and the rationale behind the State’s ongoing animus towards homosexuals. This article provides the reader with the historical context that led to the development and passage of the Florida statute and it details the three key cases that have challenged the constitutionality of the statute. The article addresses and refutes several of the ongoing concerns that have been repeatedly presented by the opponents of Same-Sex adoption. This article ultimately concludes that an absolute preclusion based solely upon orientation, without further investigation into the fitness of the individual, is discriminatory, …

In Whose Best Interest? Florida’S Statutory Ban On Homosexual Adoption And The Arguments Set Forth In Support Of An Absolute Ban, Represent The Perceived Best Interest Of A Conservative Morality And Not Those Of The Children., Michael England

Michael England

This article addresses Same-Sex Adoption. Specifically, Florida’s on going statutory prohibition and the rationale behind the State’s ongoing animus towards homosexuals. This article provides the reader with the historical context that led to the development and passage of the Florida statute and it details the three key cases that have challenged the constitutionality of the statute. The article addresses and refutes several of the ongoing concerns that have been repeatedly presented by the opponents of Same-Sex adoption. This article ultimately concludes that an absolute preclusion based solely upon orientation, without further investigation into the fitness of the individual, is discriminatory, …

Deliberative Democracy On Air: Reinvigorate Localism-Resuscitate Radio's Subversive Past, Akilah N. Folami

Akilah N Folami

Radio, once the vibrant center of deliberative democracy, is now widely regarded as a commercialized wasteland. As the FCC, Congress, and the courts reconsider current media policy in light of the public outcry over the lack of diverse content on the nation’s radio airwaves, many scholars and media reformists attribute the commercial marginalization of radio to deregulation, and the resulting consolidation in radio ownership and homogenization of radio content. They argue for more local news and public affairs programming as a remedy to this problem. This article builds on such arguments but further posits that local music and popular cultural …

Criminalizing Coerced Submission In The Workplace And In The Academy, Michal Buchhandler-Raphael

michal buchhandler-raphael

This article challenges the prevailing view that Title VII provides a single conceptual model that fits all forms of sexual harassment. In particular, it challenges the assumption that forced sexual intercourse in the workplace and in the academy is merely another form of sexual harassment, and therefore can be addressed within the current legal framework. The article argues for critically revisiting the current paradigm by providing an alternative account of the submission cases, one that separately categorizes them and acknowledges their distinctive harms. Accordingly, the article suggests that these cases should be criminalized, and elaborates upon the justifications and policy …

Criminalizing Coerced Submission In The Workplace And In The Academy, Michal Buchhandler-Raphael

michal buchhandler-raphael

This article challenges the prevailing view that Title VII provides a single conceptual model that fits all forms of sexual harassment. In particular, it challenges the assumption that forced sexual intercourse in the workplace and in the academy is merely another form of sexual harassment, and therefore can be addressed within the current legal framework. The article argues for critically revisiting the current paradigm by providing an alternative account of the submission cases, one that separately categorizes them and acknowledges their distinctive harms. Accordingly, the article suggests that these cases should be criminalized, and elaborates upon the justifications and policy …

Criminalizing Coerced Submission In The Workplace And In The Academy, Michal Buchhandler-Raphael

michal buchhandler-raphael

This article challenges the prevailing view that Title VII provides a single conceptual model that fits all forms of sexual harassment. In particular, it challenges the assumption that forced sexual intercourse in the workplace and in the academy is merely another form of sexual harassment, and therefore can be addressed within the current legal framework. The article argues for critically revisiting the current paradigm by providing an alternative account of the submission cases, one that separately categorizes them and acknowledges their distinctive harms. Accordingly, the article suggests that these cases should be criminalized, and elaborates upon the justifications and policy …

Obscenity In Japan: Moral Guidance Without Legal Guidance, Amanda Dobbins

Amanda Dobbins

Article 175 of the Japanese Penal Code is a short, two sentence article governing the concept of obscenity in Japan and its related punishment. It is the only law governing obscenity in Japan. The Japanese courts have long struggled to interpret this article, how to reconcile it with the ban on censorship present in the Japanese Constitution, and how to apply it to the various genres of artistic creation. The result has been inconsistent rulings that have created confusion in the minds of Japanese artists and has had the effect of suppressing artistic expression. The article is outdated, vague, and …

The Potential Legacy Of The Roberts Court: Gonzales V. Carhart And The Birth Of A New Understanding Of Judicial Activism, Elly Laff

Elly Laff

This article looks at the way Presidents from Reagan to G..W. Bush have used their power of appointment to seat Justices on the US Supreme Court who will carry forward the goals of the administration, in particular, overruling Roe v. Wade. This article looks specifically at the most recent US Supreme Court case dealing with abortion, Gonzales v. Carhart, and discusses the history of the presidential appointments of the five Justices who were in the majority of that decision. The article tries to clarify the conventional wisdom that an activist court is defined as one that tries to adjudicate change …

Bringing Sexual Orientation And Gender Identity Into The Tax Classroom, Anthony C. Infanti

Anthony C. Infanti

A recent piece in the Journal of Legal Education analyzing student surveys by the Law School Admission Council reports that, despite improvement in the past decade, LGBT students still experience a law school climate in which they encounter substantial discrimination both inside and outside the classroom. Included among the list of “best practices” to improve the law school climate for LGBT students was a recommendation to incorporate discussions of LGBT issues in non-LGBT courses, such as tax. In a timely coincidence, the Section on Sexual Orientation and Gender Identity Issues held a day-long program at the 2009 AALS annual meeting …

Surveying The Legal Landscape For Pennsylvania Same-Sex Couples, Anthony C. Infanti

Anthony C. Infanti

By spring 2009, a quick succession of advances in the battle over same-sex marriage in Connecticut, California, Iowa, Maine, New Hampshire, and Vermont had led some commentators to describe the moment using such hyperbolic phrases as “tipping point” and “potential watershed.” The legal and legislative wins in these states—however tentative—had created a sense of momentum in favor of lesbian and gay rights advocates in the battle over same-sex marriage. Yet jubilation over a string of victories should not obscure the larger perspective on this battle. We should not lose sight of the fact that in each of these jurisdictions, with …

Gay Equality, Religious Liberty, And The First Amendment, Matthew J. Murray

Matthew Murray

Are gay rights laws and religious liberty fundamentally in conflict? Would legal recognition of same-sex marriage lead to a wave of litigation threatening the religious liberty of those who object to such unions on religious grounds? Opponents of same-sex marriage have vocally asserted as much. This Article argues, however, that modifications in civil marriage laws in fact pose little to no threat to the liberty of religious objectors. Rather, the real arena of potential conflict between religious liberty and gay equality arises in the context of sexual orientation nondiscrimination laws. But these tensions are not new. The courts should be …

The State Marriage Cases: Implications For Hawaii's Marriage Equality Debate In The Post-Romer And Lawrence Era, Kristin D. Shotwell

Kristin D Shotwell

No abstract provided.

(Still) Not Fit To Be Named: Moving Beyond Race To Explain Why 'Separate' Nomenclature For Gay And Straight Relationships Will Never Be 'Equal', Courtney M. Cahill

Courtney M. Cahill

This Article provides a novel approach to an issue that has recently assumed national prominence: Whether it is constitutional to extend same-sex couples the substance of marriage but only under a different name, like civil union or domestic partnership. While legal actors have challenged the constitutionality of nominal difference by comparing it to the discredited legal doctrine of separate-but-equal, this Article moves beyond race to show why ‘separate’ names for gay and straight relationships will never be ‘equal,’ namely, because they reflect and perpetuate something that has applied to same-sex intimacy for centuries: a speech or a name taboo. In …