Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Family Law (29)
- Constitutional Law (20)
- Law and Society (19)
- Civil Rights and Discrimination (18)
- Sexuality and the Law (16)
-
- Law and Gender (15)
- Fourteenth Amendment (10)
- Legal History (5)
- Property Law and Real Estate (5)
- Comparative and Foreign Law (4)
- Contracts (4)
- Courts (4)
- International Law (4)
- Legislation (4)
- Estates and Trusts (3)
- Jurisprudence (3)
- Labor and Employment Law (3)
- Law and Economics (3)
- Religion Law (3)
- Supreme Court of the United States (3)
- Tax Law (3)
- Common Law (2)
- Conflict of Laws (2)
- Dispute Resolution and Arbitration (2)
- Human Rights Law (2)
- State and Local Government Law (2)
- Workers' Compensation Law (2)
- Civil Law (1)
- Criminal Law (1)
- Institution
-
- Selected Works (10)
- Fordham Law School (7)
- University of Michigan Law School (4)
- University of Richmond (4)
- Maurer School of Law: Indiana University (3)
-
- University of Georgia School of Law (3)
- American University Washington College of Law (2)
- Boston University School of Law (2)
- George Washington University Law School (2)
- SelectedWorks (2)
- University of Pittsburgh School of Law (2)
- Vanderbilt University Law School (2)
- William & Mary Law School (2)
- Aga Khan University (1)
- Brooklyn Law School (1)
- Columbia Law School (1)
- DePaul University (1)
- Georgetown University Law Center (1)
- Maurice A. Deane School of Law at Hofstra University (1)
- The Catholic University of America, Columbus School of Law (1)
- The Peter A. Allard School of Law (1)
- The University of Akron (1)
- University at Buffalo School of Law (1)
- University of Baltimore Law (1)
- University of Maryland Francis King Carey School of Law (1)
- University of Missouri School of Law (1)
- University of New Hampshire (1)
- University of Tennessee College of Law (1)
- University of the District of Columbia School of Law (1)
- Washington and Lee University School of Law (1)
- Publication
-
- Fordham Law Review (7)
- Laura A. Rosenbury (5)
- Faculty Scholarship (4)
- Articles (3)
- Georgia Journal of International & Comparative Law (3)
-
- University of Richmond Law Review (3)
- GW Law Faculty Publications & Other Works (2)
- Indiana Journal of Law and Social Equality (2)
- Michigan Journal of Gender & Law (2)
- ACTEC Law Journal (1)
- Adam MacLeod (1)
- Akron Law Review (1)
- All Faculty Publications (1)
- All Faculty Scholarship (1)
- American University Journal of Gender, Social Policy & the Law (1)
- Books (1)
- Brooklyn Journal of International Law (1)
- Catholic University Law Review (1)
- DePaul Journal of Women, Gender and the Law (1)
- Donald L. Beschle (1)
- Elizabeth R. Carter (1)
- Faculty Publications (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Indiana Law Journal (1)
- Journal Articles (1)
- Law Faculty Publications (1)
- Marisa S. Cianciarulo (1)
- Missouri Law Review (1)
- Obstetrics and Gynaecology, East Africa (1)
- Professor Vibhuti Patel (1)
- Publication Type
- File Type
Articles 1 - 30 of 62
Full-Text Articles in Law
The Intersection Of Civil And Religious Family Law In The U.S. Constitutional Order: A Mild Legal Pluralism, Linda C. Mcclain
The Intersection Of Civil And Religious Family Law In The U.S. Constitutional Order: A Mild Legal Pluralism, Linda C. Mcclain
Faculty Scholarship
This chapter considers how civil and religious family law intersect in the U.S. legal system and how U.S. constitutional law shapes and constrains the accommodation of religious pluralism as it pertains to family law. To the question, “Is there too much or too little pluralism in U.S. family law?,” I answer that family law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish …
Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association
Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association
Articles
These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …
Marital Status And Privilege, Laura Rosenbury
Marital Status And Privilege, Laura Rosenbury
Laura A. Rosenbury
This essay challenges the privilege attaching to marriage as a distinct form of relationship. Responding to Angela Onwuachi-Willig’s new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, the essay identifies the legal and extralegal privileges flowing not just to monoracial marriage but to marriage. States recognize and support one form of relationship between adults to the exclusion of all others, creating privilege that flows outside of the home into the workplace and beyond. Instead of arguing that such privilege should be distributed more equally between monoracial and multiracial couples, this essay seeks to …
Naiming The States Where Loving Will Be Recognized: On Tea Leaves, Horizontal Federalism, And Same-Sex Marriage, Mark Strasser
Naiming The States Where Loving Will Be Recognized: On Tea Leaves, Horizontal Federalism, And Same-Sex Marriage, Mark Strasser
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Interpreting Liberty And Equality Through The Lens Of Marriage, Nan D. Hunter
Interpreting Liberty And Equality Through The Lens Of Marriage, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but …
Federal Visions Of Private Family Support, Laura A. Rosenbury
Federal Visions Of Private Family Support, Laura A. Rosenbury
Laura A. Rosenbury
This Article offers a new perspective on the relationship between family and federalism by analyzing why the government — whether state or federal — recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato, upholding the Social Security Administration’s deference to states’ intestacy laws when distributing benefits to posthumously conceived children, and United States v. Windsor, in which the Court struck down a provision of the federal Defense of Marriage Act. Although each decision affirmed the states’ primary role in defining family …
Work Wives, Laura A. Rosenbury
Work Wives, Laura A. Rosenbury
Laura A. Rosenbury
Traditional notions of male and female roles remain tenacious at home and work even in the face of gender-neutral family laws and robust employment discrimination laws. This Article analyzes the challenge of gender tenacity through the lens of the “work wife.” The continued use of the marriage metaphor at work reveals that the dynamics of marriage flow between home and work, creating a feedback loop that inserts gender into both domains in multiple ways. This phenomenon may reinforce gender stereotypes, hindering the potential of law to achieve gender equality. But such gender tenacity need not always lead to subordination. The …
Sex In And Out Of Intimacy, Laura A. Rosenbury, Jennifer E. Rothman
Sex In And Out Of Intimacy, Laura A. Rosenbury, Jennifer E. Rothman
Laura A. Rosenbury
The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, most often marriage and procreation. Although Lawrence v. Texas altered some aspects of that vision, it reinscribed others by suggesting that sexual activity should be protected from state interference only …
Friends With Benefits, Laura A. Rosenbury
Friends With Benefits, Laura A. Rosenbury
Laura A. Rosenbury
Family law has long been intensely interested in certain adult intimate relationships, namely marriage and marriage-like relationships, and silent about other adult intimate relationships, namely friendship. This Article examines the effects of that focus, illustrating how it frustrates one of the goals embraced by most family law scholars over the past forty years: the achievement of gender equality, within the family and without. Part I examines the current scope of family law doctrine and scholarship, highlighting the ways that the home is still the organizing structure for family. Despite calls for increased legal recognition of diverse families, few scholars have …
The Power Of Dignity, Elizabeth B. Cooper
The Power Of Dignity, Elizabeth B. Cooper
Fordham Law Review
This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …
Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau
Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau
Fordham Law Review
By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …
Hail Marriage And Farewell, Ethan J. Leib
Hail Marriage And Farewell, Ethan J. Leib
Fordham Law Review
My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …
Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell
Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell
Fordham Law Review
Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.
Perspectives On Marriage Equality And The Supreme Court, The Editors
Perspectives On Marriage Equality And The Supreme Court, The Editors
Fordham Law Review
On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, one of the most significant civil rights decisions in recent years. For many of our generation, the Court’s conclusion that same-sex couples enjoy the constitutional right to marry simply confirmed deeply held beliefs about the importance of marriage equality and inclusion for all. We recognize, however, that for American society more broadly, the decision has evoked strong feelings on both sides of the marriage equality debate. For some, Obergefell delivered a unique gift that was unimaginable even a few decades ago: the ability of same-sex couples to …
With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner
With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner
Articles
This article draws attention to a cultural shift in the formation of families that has been and is taking place in this country and in the developed world. Part I uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71 %, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions. Because of the …
A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy
A Postcolonial Theory Of Spousal Rape: The Carribean And Beyond, Stacy-Ann Elvy
Stacy-Ann Elvy
Many postcolonial states in the Caribbean continue to struggle to comply with their international treaty obligations to protect women from sexual violence. Reports from various United Nations programs, including UNICEF, and the annual U.S. State Department Country Reports on Antigua and Barbuda, the Bahamas, Barbados, Dominica, Jamaica, and Saint Lucia (“Commonwealth Countries”), indicate that sexual violence against women, including spousal abuse, is a significant problem in the Caribbean. Despite ratification of various international instruments intended to eliminate sexual violence against women, such as the Convention on the Elimination of All Forms of Discrimination Against Women, Commonwealth Countries have retained the …
Why The State Cannot “Abolish Marriage”: A Partial Defense Of Legal Marriage, Gregg P. Strauss
Why The State Cannot “Abolish Marriage”: A Partial Defense Of Legal Marriage, Gregg P. Strauss
Indiana Law Journal
Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Recently, several scholars have answered this question with a no and concluded that the state should abolish marriage, along with all other categories of intimate status. While politically infeasible, these proposals offer a powerful thought experiment. In this Article, I use this thought experiment to argue that the law cannot avoid relying on intimate-status norms and has legitimate reasons to retain an intimate status like marriage.
The argument has three parts. The primary lesson of the thought experiment is that the state cannot abolish intimate …
Child Marriage Legislation In The Asia-Pacific Region, Elisa Scolaro, Aleksandra Blagojevic, Brigitte Fillion, Venkatraman Chandra-Mouli, Lale Say, Joar Svanemyr, Marleen Temmerman
Child Marriage Legislation In The Asia-Pacific Region, Elisa Scolaro, Aleksandra Blagojevic, Brigitte Fillion, Venkatraman Chandra-Mouli, Lale Say, Joar Svanemyr, Marleen Temmerman
Obstetrics and Gynaecology, East Africa
Child marriage is a human rights violation that robs a girl of her childhood, puts her health, growth, and development at risk, disrupts her education, limits her opportunities for empowerment and social development, and increases her risk of exposure to violence and abuse (for a review of the evidence on the negative effects of child marriage on girls and their children, see Parsons et al. 2015, in this issue). While child marriage is not mentioned specifically in the 1989 Convention on the Rights of the Child (CRC), the Convention does contain a provision requiring governments to abolish “traditional practices prejudicial …
Shari'ah Law As National Security Threat?, Cyra Akila Choudhury
Shari'ah Law As National Security Threat?, Cyra Akila Choudhury
Akron Law Review
The Article proceeds in three parts: in Part II, the Article describes three anti-shari’ah measures. It describes Oklahoma’s Save Our State amendment to show how these laws target Islam. It also reviews the recent decision by the Tenth Circuit Court of Appeals affirming the grant of a preliminary injunction against the certification of Oklahoma’s constitutional amendment. It then describes Arizona’s law that targets shari’ah as well as other legal traditions. It also examines the original version of the Tennessee bill to illustrate the motivations behind the revised, watered down version that was eventually passed by the legislature. Part II concludes …
Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy
Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy
All Faculty Scholarship
In the wake of the unrest over police misconduct in cities across the country, calls for reform have focused on the criminal justice system — making police, prosecutors, and criminal courts more accountable and just. While much work needs to be done in that arena, too little attention has focused on the ways in which low income families are hurt in civil courts. Many more men, women and children from low income communities of color pass through the doors of our family courts every day than those who interact with the criminal justice system. Some come to court as a …
Defining The Scope Of The Constitutional Right To Marry: More Than Tradition, Less Than Unlimited Autonomy, Donald L. Beschle
Defining The Scope Of The Constitutional Right To Marry: More Than Tradition, Less Than Unlimited Autonomy, Donald L. Beschle
Donald L. Beschle
No abstract provided.
Baker V. Nelson: Flotsam In The Tidal Wave Of Windsor's Wake, David B. Cruz
Baker V. Nelson: Flotsam In The Tidal Wave Of Windsor's Wake, David B. Cruz
Indiana Journal of Law and Social Equality
Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the U.S. Supreme Court’s 2013 ruling in United States v. Windsor to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court as it returns to the issue. Part II then at some …
A Marriage By Any Other Name: Why Civil Unions Should Receive Federal Recognition, Deborah A. Widiss, Andrew Koppelman
A Marriage By Any Other Name: Why Civil Unions Should Receive Federal Recognition, Deborah A. Widiss, Andrew Koppelman
Indiana Journal of Law and Social Equality
The federal government now recognizes same-sex marriages as triggering rights and responsibilities under federal law. However, it still generally refuses to recognize alternative legal statuses—civil unions and domestic partnerships—that were created by states to serve as functional marriages. Even though all the states that created such alternative statuses now permit same-sex couples to marry, this misguided policy causes ongoing harms. Some same-sex couples who entered into alternative relationships when marriage was not an option may now lack the capacity to marry. Couples who have since married may also be hurt by the federal government’s refusal to recognize civil unions or …
Same-Sex Couples - Comparative Insights On Marriage And Cohabitation, Macarena Sáez
Same-Sex Couples - Comparative Insights On Marriage And Cohabitation, Macarena Sáez
Books
This book shows six different realities of same-sex families. They range from full recognition of same-sex marriage to full invisibility of gay and lesbian individuals and their families. The broad spectrum of experiences presented in this book share some commonalities: in all of them legal scholars and civil society are moving legal boundaries or thinking of spaces within rigid legal systems for same-sex families to function. In all of them there have been legal claims to recognize the existence of same-sex families. The difference between them lies in the response of courts. Regardless of the type of legal system, when …
Utah: A Case Study On The Road To Same-Sex Marriage, Jennifer Watson
Utah: A Case Study On The Road To Same-Sex Marriage, Jennifer Watson
Tennessee Journal of Race, Gender, & Social Justice
No abstract provided.
Marriage Equality Comes To Virginia, Carl Tobias
Marriage Equality Comes To Virginia, Carl Tobias
University of Richmond Law Review
No abstract provided.
From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind
From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind
Stephen L Baskind
In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …
Whose Fault Is It Anyway?: Analyzing The Role “Fault” Plays In The Division Of Premarital Property If Marriage Does Not Ensue, Arielle L. Murphy
Whose Fault Is It Anyway?: Analyzing The Role “Fault” Plays In The Division Of Premarital Property If Marriage Does Not Ensue, Arielle L. Murphy
Catholic University Law Review
Whenever an engagement comes to a premature end, the first question that seems to be asked is: “who gets the engagement ring?” This Comment seeks to answer this question. As societal views regarding marriage and a woman’s role within it began to change in the mid-twentieth century, courts started to recognize engagement rings as conditional gifts that were conditioned upon the marriage actually occurring. Even with this framework, states remain divided on whether fault should be included as part of the analysis in determining which party is entitled to the ring if an engagement ends before marriage occurs. This Comment …
Divorcing Gender From Marriage: A Feminist Perspective On The Jurisprudence Of Transgendered Marriage, Michelle Cass
Divorcing Gender From Marriage: A Feminist Perspective On The Jurisprudence Of Transgendered Marriage, Michelle Cass
DePaul Journal of Women, Gender and the Law
Sex is an immutable characteristic; says who? As transgendered people and LGBTQQ (lesbian, gay, bisexual, transgender, queer, questioning) issues gain more traction and recognition, the clear contours of sex and gender are fading, and a more fluid concept of gender is emerging. However, the American legal system lags behind the mutability of gender in an environment where the conceptualization and understanding of gender is becoming ever more nuanced and complex. This is most apparent in the law’s treatment of transgendered marriage: a marriage involving at least one person who identifies as transgendered. A transgendered person can be defined as a …
Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor
Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor
Georgia Journal of International & Comparative Law
No abstract provided.