Jurisprudence Commons^™

A Deer In Headlights: The Supreme Court, Lgbt Rights, And Equal Protection, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that the problems with how courts apply Equal Protection principles to classifications not already recognized as suspect reach beyond the most immediate example of sexual orientation. Three structural weaknesses drive the juridical reluctance to bring coherence to this body of law: two doctrinal and one theoretical. The first doctrinal problem is that the socio-political assumptions that the 1938 Supreme Court relied on in United States v. Carolene Products, Inc. to justify strict scrutiny for “discrete and insular minorities” have lost their validity. In part because of Roe v. Wade-induced PTSD, the courts have …

Pluralism And Its Perils: Navigating The Tension Between Gay Rights And Religious Expression, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.

The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster …

Desperately Seeking A Moralist, Robin West

Georgetown Law Faculty Publications and Other Works

In a recent issue of “Unbound”, Janet Halley reviews my book “Caring for Justice”, criticizing it for exhibiting a broad range of the problems she sees in all forms of "identitarian" legal writing, and therefore worthy of detailed critique. Halley begins her review by listing the representative missteps she finds in both my book and in identitarian politics generally, including, although certainly not limited to, an identification of the site of the subordinated group's injuries-for women, reproduction and sexuality with the site of its ethical lives and insights; a tendency to differentiate and present the interests of subordinate and dominant …

Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West

Georgetown Law Faculty Publications and Other Works

Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" …

Legitimating The Illegitimate: A Comment On 'Beyond Rape', Robin West

Georgetown Law Faculty Publications and Other Works

Professor Dripps's provocative proposal, as I understand it, is that we think of sex as a commodity and rape as the theft of that commodity. Understood as such, the theft of sex accomplished through violence or the threat of violence is a twofold wrong: it violates our "negative" right to refuse to have sex with anyone for any or no reason, and violence or the threat of violence infringes our right to personal, physical security. Therefore, the violent expropriation of sex should be punished as a major felony, as is violent rape, at least in theory.

Furthermore, according to Dripps, …