Law Commons^™

Amicus Brief To U.S. Supreme Court In Masterpiece Cakeshop V. Colorado Human Rights Commission, Katherine M. Franke, Elizabeth Reiner Platt

Faculty Scholarship

On October 30, 2017 the Public Rights/Private Conscience Project, a research initiative of the Center for Gender & Sexuality Law at Columbia Law School, filed a brief in Masterpiece Cakeshop. The brief was written in coordination with our colleagues at Muslim Advocates, on behalf of 15 religious minority groups and civil rights advocates. The brief argues that the broad interpretation urged by Masterpiece Cakeshop is bad for religious liberty itself – especially for religious minorities such as Muslims, Sikhs, and other minority religious groups. The Public Rights/Private Conscience Project's position is that the Court’s early religious liberty cases were …

Opinion Of Justice Katherine Franke In Obergefell V. Hodges, Katherine M. Franke

Faculty Scholarship

Professor Jack Balkin has assembled a group of 9 scholars and advocates to write opinions in the Obergefell v. Hodges case for a forthcoming volume, What Obergefell Should Have Said (Yale University Press 2017). Balkin writes for the majority of the Court and I provide a concurrence along with a short commentary explaining my approach and reasoning. In summary, I conclude that: Laws barring same-sex couples from eligibility for licensure as civil marriages violate the Equal Protection Clause of the Fourteenth Amendment because they find their origin in and perpetuate notions of heterosexual supremacy, and have the aim and effect …

Brief Of Amici Curiae Professors Nan D. Hunter, Et Al., Addressing The Merits In Support Of Respondents, Nan D. Hunter, Suzanne B. Goldberg

Faculty Scholarship

In this amicus brief filed in United States v. Windsor, pending before the Supreme Court, amici constitutional law professors argue that all classifications that carry the indicia of invidiousness should trigger a more searching inquiry than the traditional rational basis test under the Equal Protection Clause would suggest. Classifications that already receive heightened scrutiny, such as race or sex, fit easily into this approach. But the Court’s equal protection jurisprudence has become muddied in a series of cases in which it says rational basis review, but appears to do a more rigorous review. Sexual orientation classifications seemingly were analyzed …

The Curious Relationship Of Marriage And Freedom, Katherine M. Franke

Faculty Scholarship

This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are …

Public Sex, Same-Sex Marriage, And The Afterlife Of Homophobia, Katherine M. Franke

Faculty Scholarship

The summer of 2011 marked an important turning-point in the geography and politics of sex: public sex, previously a domain dominated by the specter of a hypersexualized gay man, became the province of the irresponsible, foolish, and self-destructive heterosexual man, such as Anthony Weiner. Meanwhile, homosexuals were busy domesticating their sexuality in the private domain of the family. Just as hetero-sex shamefully seeped out into the open, homo-sex disappeared from view into the dignified pickets of private kinship. In this essay I examine the panic that unfolded in connection with Representative Weiner’s tweets as a kind of afterlife of homophobia; …

Sexual Tensions Of Post-Empire, Katherine M. Franke

Faculty Scholarship

In this essay Katherine Franke examines two contemporary cites in which state efforts to eradicate the traces of empire and to resurrect an authentic post-colonial nation have produced sexual subjects that serve as a kind of existential residue and reminder of a demonized colonial past and absence. Looking first at post-colonial Zimbabwe, Franke argues that President Mugabe's aggressively homophobic policies have played a key role in fortifying his leadership as authentically African and post-colonial.

Franke then turns to current efforts by the Mubarak government in Egypt to publically prosecute men for having sex with men. The Mubarak government has used …

Illegalized Sexual Dissent: Sexualities And Nationalisms, Katherine M. Franke

Faculty Scholarship

In this essay, Katherine Franke explores how dissent becomes a different, and in some ways more interesting, phenomenon when the dissenter emerges not from outside the political horizon drawn by the state, but rather from within it, and as an integral part of the state's project of governance. In these cases, the state calls up a set of subjects who are in some fundamental sense positioned to gain state, if not public, disfavor. These subjects are then isolated, excised or otherwise managed in ways that further state interests. Three cases are discussed in which the production of sexual outlaws proves …