Sexuality and the Law Commons^™

Punitive Injunctions, Nirej S. Sekhon

Nirej Sekhon

No abstract provided.

Section 7: Same-Sex Marriage, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Ninth Circuit's Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian Bartrum

Michigan Law Review First Impressions

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional amendment banning same-sex marriage, which is currently under review in the U.S. Court of Appeals for the Ninth Circuit. Perhaps even more surprising, Nevada's Republican governor agreed with that decision, concluding that the "case is no longer defensible in court." Ironically, all of this came after the plaintiffs had lost their case in the district court. But the federal constitutional landscape surrounding same-sex marriage is rapidly shifting, and in the nation's largest circuit change is coming quickly indeed. The latest upheaval—the decision that in fact prompted …

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 …

Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis

Cory A DeLellis

This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.

Deeply Rooted Principles Of Equal Liberty, Not 'Argle Bargle': The Inevitability Of Marriage Equality After Windsor, Nancy C. Marcus

Nancy C Marcus

"‘Argle Bargle,’ or Deeply-Rooted Principles of Equal Liberty? The Inevitability of Marriage Equality after Windsor" is an article that analyzes United States v. Windsor, the recent Supreme Court same-sex marriage opinion striking down Section 3 of the Defense of Marriage Act. Although Justice Scalia’s dissent in Windsor dismisses the majority opinion, authored by Justice Kennedy, as legalistic argle bargle, this article explains that the Windsor majority opinion is, rather, a principled decision reflecting an evolved understanding of fundamental constitutional values. The article explains why the majority opinion should not be understood as one with a federalist holding that reserves to …

Straddling The Columbia: A Constitutional Law Professor's Musings On Circumventing Washington State's Criminal Prohibition On Compensated Surrogacy, Peter Nicolas

Articles

In this Article, I recount—through both the prisms of an intended parent and a constitutional law scholar—my successful efforts to become a parent via compensated surrogacy and egg donation. Part I of this Article provides a narrative of my experience in becoming a parent via compensated surrogacy, and the various state and federal legal roadblocks and deterrents that I encountered along the way, including Washington State's criminal prohibition on compensated surrogacy as well as federal guidelines issued by the U.S. Food and Drug Administration regarding the use of sperm by gay donors in the process of in vitro fertilization.

Part …

Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle

Indiana Law Journal

In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …

"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson

Darren L Hutchinson

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court’s suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

Gender And The Institutional Nature Of Marriage, Tyler A. Le Fevre

Tyler A. Le Fevre

Court decisions invalidating man-woman marriage laws frequently rely on the argument that expanding marriage to include same-sex relationships would have no social downside and, therefore, cannot be constitutionally justified. However, contemporary social theory casts doubt on this “no downside” argument for genderless marriage. Drawing on social philosophy, especially that of Johns R. Searle, this Article argues that redefining marriage to include same-sex couples will alter the institutional function of marriage, which alterations would have harmful effects on social welfare and children’s rights. This Article further asserts that American courts and commentators are amiss when they mask or willfully ignore the …