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Articles 1 - 14 of 14
Full-Text Articles in Law and Society
Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins
Kayla Higgins
On July 21, 2014 President Obama released Executive Order 13672, which expressly aimed to provide for a uniform policy for the Federal Government to prohibit discrimination and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity. Some commentators believe that the order “could be the next battleground” for the competing views of religious leaders and liberals when it comes to how to weigh religious liberty against other priorities. However, there are two main reasons why the most recent executive order should not crumble under the Hobby Lobby …
Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer
Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer
Nancy J. Knauer
When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …
Identity/Time, Nancy J. Knauer
Identity/Time, Nancy J. Knauer
Nancy J. Knauer
This paper engages the unspoken fourth dimension of intersectionality — time. Using the construction of lesbian, gay, bisexual, and transgender (LGBT) identities as an example, it establishes that identity, as it is lived and experienced, is not only multivalent, but also historically contingent. It then raises a number of points regarding the temporal locality of identity — the influence of time on issues of identity and understanding, its implications for legal interventions, social movement building, and paradigms of progressive change. As the title suggests, the paper asks us to consider the frame of identity over time.
Aging In The United States: Rethinking Justice, Equality, And Identity Across The Lifespan, Nancy J. Knauer
Aging In The United States: Rethinking Justice, Equality, And Identity Across The Lifespan, Nancy J. Knauer
Nancy J. Knauer
Our current aging policies and procedures raise profound questions of individual liberty, autonomy, and equality. Guardianship regimes require the state to balance the interests of vulnerable adults with their right to self-determination. The proliferation of age-specific laws designed to protect elders may actually compromise the civil rights of older individuals by denying their autonomy based solely on their age. The regulation of intimacy in long-term care settings infringes on a core liberty interest essential to human dignity. This essay introduces a new body of work that specifically addresses the civil rights aspects of aging. In many ways, aging represents the …
International Human Rights Law And Co-Parent Adoption, Prof. Elizabeth Burleson
International Human Rights Law And Co-Parent Adoption, Prof. Elizabeth Burleson
Prof. Elizabeth Burleson
Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This article considers the international community's efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels.
Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit
Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit
Nancy Levit
One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights …
September 11 Relief Efforts And Surviving Same-Sex Partners: Reflections On Relationships In The Absence Of Legal Recognition, Nancy J. Knauer
September 11 Relief Efforts And Surviving Same-Sex Partners: Reflections On Relationships In The Absence Of Legal Recognition, Nancy J. Knauer
Nancy J. Knauer
The criteria established by federal, state, and private relief efforts to assist the families of the victims of the September 11 attacks present a unique opportunity to examine the status of same-sex relationships in the United States. In the absence of uniform relationship recognition, surviving same-sex partners continue to struggle with a loss that legally is not cognizable. The stories from the September 11 survivors illustrate that a surviving partner is a legal stranger, who often must reconfigure her relationship with her partner to fit within the various legal categories where relief or compensation might be forthcoming. These legal categories …
Lawrence V. Texas: When Profound And Deep Convictions Collide With Liberty Interests, Nancy J. Knauer
Lawrence V. Texas: When Profound And Deep Convictions Collide With Liberty Interests, Nancy J. Knauer
Nancy J. Knauer
This Essay offers a brief analysis of Lawrence v. Texas, arguing that Justice Kennedy's recognition of a liberty interest is preferable to the Equal Protection analysis urged by the Petitioners and advanced by Justice O'Connor. Equality arguments based on orientation and group affiliation in the absence of a core right to sexual autonomy reinforce a view of stable gay identities that is ultimately disingenuous and disempowering. After seventeen years of attempts by pro-gay advocates to bifurcate conduct from status and sidestep Bowers v. Hardwick, Justice Kennedy's majority opinion has conclusively put the sex back into homosexual. Under Equal Protection analysis, …
Defining Capacity: The Competing Interests Of Autonomy And Need, Nancy J. Knauer
Defining Capacity: The Competing Interests Of Autonomy And Need, Nancy J. Knauer
Nancy J. Knauer
This Essay addresses the question of capacity - the basic threshold determination that pervades all areas of the law. An individual must have the requisite level of capacity to consent to sex, refuse medical treatment, enter into a contract, marry, divorce, relinquish parental rights, execute a will, make a gift, donate organs, vote, serve on a jury, stand trial, and even to hire a lawyer. The standards regulating determinations of capacity are not monolithic. An individual may lack the capacity to contract, but may have the requisite capacity to write a will or to refuse life-sustaining medical treatment. As individuals, …
"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts V. Dale, Nancy J. Knauer
"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts V. Dale, Nancy J. Knauer
Nancy J. Knauer
Boy Scouts v. Dale was uniformly considered a set back for gay rights. Undeniably, it was not a good result for James Dale or other openly gay individuals who would like to participate in the largest youth organization in the U.S. This Article views Boy Scouts v. Dale in a different light and suggests that the expressive character of the openly gay individual endorsed by the majority may signal an opportunity to argue for greater First Amendment protections. The majority recognized that a single avowal of homosexuality imbues the openly gay individual with a uniquely expressive character. Wherever he goes, …
Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer
Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer
Nancy J. Knauer
In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice. Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic. Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status. This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development. However, the ex-gay media blitz of 2000 represents only the latest …
A Different Kind Of Sameness: Beyond Formal Equality And Antisubordination Principles In Gay Legal Theory And Constitutional Doctrine, Nancy Levit
Nancy Levit
Gay legal theory is at a crossroads reminiscent of the sameness/difference debate in feminist circles and the integrationist debate in critical race theory. Formal equality theorists take the heterosexual model as the norm and then seek to show that gays, lesbians, bisexuals, and transsexuals - except for their choice of partners - are just like heterosexuals. Antisubordination theorists attack the heterosexual model itself and seek to show that a society that insists on such a model is unjust. Neither of these strategies is wholly satisfactory. The formal equality model will fail to bring about fundamental reforms as long as sexual …
Same-Sex Domestic Violence, Nancy J. Knauer
Same-Sex Domestic Violence, Nancy J. Knauer
Nancy J. Knauer
Same-sex domestic violence is a difficult topic. The LGBT communities have been reluctant to discuss same-sex domestic violence for fear of validating negative stereotypes and detracting from the push for legal recognition of such relationships. The relative silence on this issue continues despite the fact that individuals in same-sex relationships are more likely to be abused by their partners than beaten in an act of anti-gay violence. and despite legislative efforts to restrict domestic violence laws to cover only different-sex couples. The political downside of discussing same-sex domestic violence is obvious. Anti-gay organizations invoke same-sex domestic violence to bolster their …
Domestic Partnership And Same-Sex Relationships: A Marketplace Innovation And A Less Than Perfect Institutional Choice, Nancy J. Knauer
Domestic Partnership And Same-Sex Relationships: A Marketplace Innovation And A Less Than Perfect Institutional Choice, Nancy J. Knauer
Nancy J. Knauer
The struggle for the recognition and protection of same-sex relationships is at the forefront of the contemporary gay and lesbian civil rights agenda. Whereas the push for same-sex marriage and parenting rights has met with mixed results in the courts and the legislatures, an impressive array of organizations, including Fortune 500 companies, colleges, nonprofit corporations, and municipalities, now extend benefits to the same-sex partners of their employees. This level of success raises a provocative question regarding the potential role of institutional employers in the larger on the agenda for progressive social change. Domestic partnership benefits are a creature of the …