Sexuality and the Law Commons^™

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

The Best Interest Standard: How Broad Judicial Discretion And Influences Of Social And Political Suggestion Have Led To An Abandonment Of The Rule’S Primary Purpose In Child Custody Decisions, Lakeisha J. Johnson

ExpressO

The vital questions in child custody disputes all concern that which is in the best interest of the child. Historically, interpretations of the “best interest” standard have been founded upon presumptions steeped in the notion of natural rights and duties based largely upon a mix of scientific and subjective conclusions regarding gender-based parenting roles and the need to sustain them. My research demonstrates that, as courts attempt to avoid the decisions of the past and submit to the societal will of the present, the modern application of the “best interest of the child” standard has led unexpectedly to an abandonment …

Continuing The Lord's Work And Healing His People: A Reply To Professors Lupu And Tuttle, Mark E. Chopko

BYU Law Review

No abstract provided.

Sexual Misconduct And Ecclesiastical Immunity, Ira C. Lupu, Robert W. Tuttle

BYU Law Review

No abstract provided.

Separation, Neutrality, And Clergy Liability For Sexual Misconduct, William P. Marshall

BYU Law Review

No abstract provided.

An Itty· Bitty Immunity And Its Consequences For The Church Of Jesus Christ Of Latter·Day Saints: A Response To Professors Lupu And Tuttle, Cheryl B. Preston

BYU Law Review

No abstract provided.

Honest Beliefs, Credible Lies, And Culpable Awareness: Rhetoric, Inequality, And Mens Rea In Sexual Assault, Lucinda Vandervort

Osgoode Hall Law Journal

The exculpatory rhetorical power of the term "honest belief" continues to invite reliance on the bare credibility of belief in consent to determine culpability in sexual assault. In law, however, only a comprehensive analysis of mens rea, including an examination of the material facts and circumstances of which the accused was aware, demonstrates whether a "belief' in consent was or was not reckless or wilfully blind. An accused's "honest belief" routinely begs this question, leading to a truncated analysis of criminal responsibility and error. The problem illustrates how easily old rhetoric perpetuates assumptions that no longer have a place in …

The Inclusive Command: Voluntary Integration Of Sexual Minorities Into The U.S. Military, Jennifer Gerarda Brown, Ian Ayres

Michigan Law Review

Many opponents of gays in the military will accept the proposition that gay and lesbian soldiers, most of them closeted, have served their country bravely and well. General Colin Powell has referred to gay service members as "proud, brave, loyal, good Americans" who have "served well in the past and are continuing to serve well." General H. Norman Schwartzkopf agrees: "homosexuals have served in the past and have done a great job serving their country." What these opponents find harder to accept is the proposition that heterosexual people can effectively serve their country if openly gay people are in the …

I Do' Kiss And Tell: The Subversive Potential Of Non-Normative Socialsexual Expression From Within Cultural Paradigms, Elaine Craig

Dalhousie Law Journal

Using a comparative analysis of the equality movements of sexual minorities in Canada and India the author identifies a symbiosis between the subversive benefits of a deconstructionist approach to equality and the practical achievements to be gained by a rights-based model of social justice. The analysis is conducted through an examination of the role that the expression of same-sex desire plays in the legal and social positions of sexual minorities in Canada and India The author argues that the acquisition of rights can provide sexual minorities with greater access to dominant cultural rituals and that such access provides opportunities to …

The Grammar Of Incest: Boundary Violation, Disgust, And The Slippery Slope Trope, Courtney M. Cahill

ExpressO

This Article examines the role that the incest taboo has played in shaping a normative vision of the family in the law, and argues that the law must reappraise the extent to which disgust, rather than reasoned argument, sustains laws governing sexual and familial choice. It takes issue with the claim that discussion of the taboo has led to its erosion, and contends that it has remained a powerful symbol of non-normative sexuality that is used as the extreme case against which kinship relations are measured. In order to explain why the taboo has persisted over time as a point …

Pride And Prejudice: Results Of An Empirical Study Of Sexual Orientation Fairness In The Courts Of England And Wales, Todd Brower

Buffalo Women's Law Journal

No abstract provided.

Adventures In Heteronormativity: The Straight Line From Liberace To Lawrence, Joan W. Howarth

Nevada Law Journal

No abstract provided.

Paradoxes Of Health And Equality: When A Boy Becomes A Girl, Noa Ben-Asher

ExpressO

This paper is about an unusual child custody dispute between the parents of a six-year-old child and the child welfare services of Franklin County, Ohio. The conflict emerged when the child’s parents complied with their male child’s professed desire to be treated as a girl by attempting to enroll the child in the first grade as a girl. The paper treats this case as an exemplary test-case of contemporary co-dependence between scientific-medical discourse and liberal-rights discourse. The paper analyzes the positions of the two sides of the custody dispute according to the classic modern distinction between mind and body. On …

Intersexuality And Universal Marriage, Michael L. Rosin

ExpressO

The proposed Federal Marriage Amendment would raise to the constitutional level the traditional understanding of marriage as the union of one woman and one man. In so doing it would raise to the constitutional level the questions of who is a woman and who is a man. There is currently no settled case or statute law answering these questions. A 1979 Australian annulment case declaring a husband with XX sex chromosomes to be neither a man nor a woman demonstrates the law’s inability to deal with the physically intersexed. Legal scholars defending the traditional view of marriage cite 19th century …

Textual Harassment: A New Historicist Reappraisal With Gender In Mind, Hila Keren

ExpressO

No abstract provided.

Sex, Lies, And Clients: From Bill Clinton To Oscar Wilde, Steven Lubet

ExpressO

No abstract provided.

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

Gay Marriage: Analyzing Legal Strategies For Reform In Hong Kong And The United States, Robin A. Warren

Washington International Law Journal

Like many countries, both the United States and Hong Kong face the question of whether to legalize gay marriage due to social, legal, and political forces within and beyond their borders. The legalization of same-sex marriage in one jurisdiction forces other jurisdictions to decide whether to recognize marriages celebrated there. Comparing the current state of U.S. and Hong Kong law reveals that only a direct challenge to discriminatory marriage laws will successfully effect change. Two U.S. state supreme court decisions provide examples of effective legal arguments in a direct challenge. Conflict of laws analysis for marriage and the public policy …

The Unknown Past Of Lawrence V. Texas, Dale Carpenter

Michigan Law Review

On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Gamer having anal sex. This violated the Texas Homosexual Conduct law, and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights. So goes the legend of Lawrence v. Texas. Do not believe it. …

Lawrence V. Texas And Judicial Hubris, Nelson Lund, John O. Mcginnis

Michigan Law Review

The republic will no doubt survive the Supreme Court's decision, in Lawrence v. Texas, to invalidate laws against private, consensual sodomy, including those limited to homosexual behavior. Such laws are almost never enforced, and the rare prosecutions for such acts are necessarily capricious. So the principal direct effect of the Court's decision is likely to be extremely limited, and largely salutary: a few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual mores. Nor are we likely to see anything like the intense political …

Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter

Michigan Law Review

In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay. The obvious point of departure for an analysis of Lawrence is its decriminalization of much sexual conduct. Justice Scalia began this project with his dire warning that "[s]tate laws against bigamy, samesex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in …

Surviving Lawrence V. Texas, Marc Spindelman

Michigan Law Review

The lesbian and gay communities have reacted to the Supreme Court's decision in Lawrence v. Texas - striking down state sodomy laws on Due Process grounds - with unbridled enthusiasm. Lawrence has variously been praised as an unmitigated victory for lesbian and gay rights, a turning point in our community's history, and the moment when we have gone from second-class political outcasts to constitutional persons with first-class rights. Obviously, something remarkable happened in Lawrence. In an opinion written by Justice Anthony Kennedy, the Court declared that John Geddes Lawrence and Tyrone Gamer, who had been convicted under Texas's sodomy …

Foreword: Loving Lawrence, Pamela S. Karlan

Michigan Law Review

Two interracial couples. Two cases. Two clauses. In Loving v. Virginia, the Supreme Court struck down a Virginia statute outlawing interracial marriage. In Lawrence v. Texas, the Court struck down a Texas statute outlawing sexual activity between same-sex individuals. Each case raised challenges under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

“El Franquismo, ¿Un Regimen Homosexual?” (Translation, Adaptation, And Revision Of “Franco’S Spain, Queer Nation?”), Gema Pérez-Sánchez

Gema Pérez-Sánchez

No abstract provided.

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

Untying The Knot: An Analysis Of The English Divorce And Matrimonial Causes Court Records, 1858-1966, Danaya C. Wright

University of Richmond Law Review

No abstract provided.

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

Equality Without Tiers, Suzanne Goldberg

Rutgers Law School (Newark) Faculty Papers

No abstract provided.

Abstinence-Only Adolescent Education: Ineffective, Unpopular And Unconstitutional, James J. Mcgrath

ExpressO

This article examines the recent changes in the funding of “abstinence only” educational programs that attempt to reduce the incidence of teen pregnancy and sexually transmitted diseases. Although funding for these programs was previously ruled to be facially constitutional, this is no longer the case as their lack of efficacy for their stated purpose has been exposed. Newer programs are in direct violation of unconstitutional conditions doctrine, and none of these programs address a significant segment of the student population, lesbian and gay students. My article addresses this oversight as dangerous public health policy as well as a potential constitutional …